PUBLIC LANDS

APPORTIONMENT OF REPRESENTATIVES

INDIAN AFFAIRS

For the Federal Gasette.

Russell, under an affected moderation, veils the most insidious and malignant designs, and slyly propagates the basest slanders. This is evident from the following passage of his second paper. Edition: current; Page: [101]After stating a visionary and impracticable scheme for avoiding a war with the Indians, he proceeds thus: “But, then, how many officers had been wanting, how many lucrative contracts would have been lost, and how great a waste of money would have been prevented from flowing into the coffers of those concerned in this business?”

The plain inference from this is, that the public officer who has an agency in making those contracts shares in the profit of them, and that a part of the money which is expended flows into his coffers. If this is not his meaning, then Russell owes it to himself, and to justice, to disavow the inference. If it is his meaning, then he owes it to the public to answer the following questions: Does he know by what public officer the contracts for supplying the army are made? Has he any ground to believe that that officer ever advised a single step which has led to the present Indian war? Does he know what his official conduct has been with regard to it? Does he know what his private character has been as to pecuniary affairs? Is he acquainted with a single fact or even circumstance which can justify a suspicion that he has ever been directly or indirectly interested in any contract in which he has had an agency?

Let him answer these questions, or otherwise assign the grounds of his insinuation, or let him be despised as a wanton calumniator.

PRESIDENT’S SPEECH1

It is an abatement of the satisfaction with which I meet you, on the present occasion, that in felicitating you on the continuance of the national prosperity generally, I am not able to add to it information that the Indian hostilities, which have for some time distressed our northwestern frontier, have terminated.

You will doubtless learn with as much concern as I communicate it, that reiterated endeavors to effect a pacification have hitherto issued only in new and outrageous proofs of persevering hostility on the part of the tribes with whom we are in contest. An earnest desire to procure tranquillity to the frontier, to stop the further effusion of blood, to arrest the progress of expense, to promote the prevalent wish of the country for peace, have led to strenuous efforts, through various channels, to effect that desirable end, in which neither my own calculations of the event, nor my scruples which may have occurred concerning the dignity of government, have been permitted to outweigh the important considerations that have been mentioned.

A detail of the measures which have been adopted, will be laid before you, from which I persuade myself it will appear to you, that means as proper and as efficacious as could have been devised, have been employed. The issue indeed of some of them is yet depending, but while a favorable one is not to be Edition: current; Page: [103]despaired of, every antecedent and collateral circumstance discourages an expectation of it.

In the course of these attempts, some valuable citizens have fallen victims to their zeal for the public service. A sanction hitherto respected even among savages has not been sufficient to protect from slaughter the messengers of peace. It will, I presume, be duly considered whether the occasion does not call for an exercise of liberality towards the families of the deceased.

It must add to your concern to know that in addition to the continuation of hostile appearances among the tribes north of the Ohio, some threatening symptoms have lately been revived among some of those south of it. According to the last accounts, an attack upon the settlements within the territory of the United States, was meditated on the part of the Chickamagas who form a portion of the nation of the Cherokees.

Further evidence, however, is necessary to ascertain the reality and extent of the evils; and in the meantime defensive precautions only have been permitted.

It is not understood that any breach of treaty or aggression on the part of the United States or citizens is even alleged, as a pretext for the spirit of hostility in this quarter. Other causes for it are indicated, which it would be premature to particularize.

I have reason to believe that every practicable exertion has been made to be prepared for the alternative of a continuance of the war in pursuance of the provisions made by law. A large proportion of the Edition: current; Page: [104]troops authorized to be raised have been recruited, but the number is still incomplete. A particular statement from the proper department on this subject, and in relation to some other points which have been suggested, will afford more precise information as a guide to the legislative deliberations, and among other things will enable Congress to judge whether some additional stimulus to the recruiting service may not be advisable.

In looking forward to the future expense of the operations which may be necessary, I derive consolation from the information I receive, that, as far as the product of the revenues for the present year is known at the Treasury, there is a strong prospect that no additional burdens on the community will be requisite for the supplies of the ensuing year. This, however, will be better ascertained in the course of the present session; and it is proper to add, that the information proceeds upon the supposition of no material extension of the spirit of hostility.

I cannot dismiss the subject of Indian affairs without recalling to your attention the necessity of more adequate provision for giving energy to the laws throughout our interior frontiers, so as effectually to restrain depredations upon the Indians, without which every pacific system must prove abortive; and also for enabling the employment of qualified persons to reside as agents among the Indians, an expedient of material importance in the successful management of Indian affairs.

If some efficacious plan could be devised for carrying on trade with the Indians, upon a scale adequate Edition: current; Page: [105]to their wants, and under regulations calculated to protect them from extortion and imposition, it would prove hereafter a powerful means of preserving peace and a good understanding with them.

The prosperous state of our revenue has been intimated. This would be still more the case, were it not for the impediments which in some places continue to embarrass the collection of the duties on home-made spirits. These impediments have lessened, and are lessening, as to local extent; and as applied to the community at large, the spirit of acquiescence in the law appears to be progressive.

But symptoms of an increasing opposition having recently manifested themselves in certain quarters, particularly in one where the enjoyment of immediate benefits from the common contributions of the country was to have been expected to fortify the general sense of respect and duty towards the government and its laws, and the disposition to share in the public burdens, I thought a special interposition on my part had become proper and advisable; and under this impression I have issued a proclamation.

Measures have also been begun for the prosecution of offenders; and Congress may be assured that nothing within constitutional and legal limits which may depend on me, shall be wanting to assert and maintain the just authority of the laws. In fulfilling this trust, I shall count entirely upon the full cooperation of the other departments of government, and upon the zealous support of all good citizens.

I cannot forbear to bring again into the view of the Legislature the expediency of a revision of the Edition: current; Page: [106]judiciary system. A representation from the judges of the Supreme Court, which will be laid before you, points out some of the inconveniences that are experienced. In the course of the administration of the laws, considerations arise out of the structure of that system which tend to impede their execution. As connected with this subject, some provisions respecting the taking of bail upon processes out of the courts of the United States, and a supplementary definition of offences against the Constitution and laws, and of punishment for such offences, are presumed to merit particular attention.

The interests of the nation, when well understood, will be found to coincide with their moral duties. Among these, it is an important one to cultivate peace and friendship with our neighbors. To do this, we should make provision for rendering the justice we must sometimes require from them. I recommend therefore to your consideration, whether the laws of the Union should not be extended to restrain our citizens from committing acts of violence within the territories of other nations, which would be punished were they committed within our own. And in general, the maintenance of a friendly intercourse with foreign nations will be presented to your attention by the expiration of the laws for that purpose, which takes place, if not renewed, at the close of the present session.

In execution of the authority given by the Legislature, measures have been taken for engaging some artists from abroad to aid in the establishment of our mint; others have been employed at home. Provision Edition: current; Page: [107]has been made of the requisite buildings, and these are now putting into proper condition for the purposes of the establishment. There has been also a small beginning in the coinage of half dollars and cents; the want of small coins in circulation calling the first attention to them.

The regulation of foreign coins, in correspondency with the principles of our national coinage, will, I doubt not, be resumed and completed, being a matter essential to the due operation of the system, and to order in our pecuniary concerns.

It is represented that the regulations contained in the law which establishes the post-office, operate in experiment against the transmission of newspapers to different parts of the country. Should this, upon due inquiry, be found to be the fact, the legislative wisdom will, doubtless, apply a remedy, under a full conviction of the great importance of facilitating the circulation of political intelligence and information.

Information has been received of the adoption of a constitution for the State of Kentucky. An event so interesting to the happiness of the part of the nation to which it relates, cannot but make a correspondent impression. The communications concerning it will be laid before you.

It is proper likewise to inform you that, since my last communication on the subject, in further execution of the acts severally making provision for the public debt, and for the reduction thereof, three new loans have been effected, one for 3,000,000 of florins at Antwerp, at four and a half per cent., and four per cent. charges, and two others, each for 3,000,000 Edition: current; Page: [108]of florins, at Amsterdam, at four per cent., and five and five and a half per cent. charges. Among the objects to which these funds have been directed to be applied, the payment of the debts due to certain foreign officers, according to the provision made for that purpose during the last session, is included.

INDIAN AFFAIRSCabinet Opinion.

My judgment balanced a considerable time on the proposed measure; but it has at length decided against it, and very materially, on the ground, that I do not think the United States can honorably or morally, or with good policy, embark the Choctaws in the war, without a determination to extricate them from the consequences, even by force. Accordingly it is proposed that, in settling our differences with the Creeks, “we mediate effectually the peace of the Chickasaws and Choctaws”; which I understand to mean, that we are to insist with the Creeks on such terms of peace for them as shall Edition: current; Page: [110]appear to us equitable; and if refused, will exert ourselves to procure them by arms. I am unwilling, all circumstances foreign and domestic considered, to embarrass the government with such an obligation.

CONVENING CONGRESS

OBJECTS TO BE COMMUNICATED IN SPEECH AND MESSAGES

• I.—Proclamation.
• II.—Embarrassments in carrying into execution the principles of neutrality; necessity of some auxiliary provisions by law. ∗ ∗ ∗
• III.—Expectation of indemnification given in relation to illegal captures.
• IV.—State of our affairs with regard to Great Britain, Spain, and France—claim of Guarantee—propositions respecting Trade.
• V.—Indian affairs—failure of Treaty—state of expedition under Wayne—prospects with regard to Southern Indians.
• VI.—Prudence of additional precautions for defence, as the best security for the peace of the country.

• 1.Fortification of principal seaports.
• 2.Corps of efficient militia.

• VII.—Completion of settlement of Accounts between the United and Individual States; Provision for balances.
• VIII.—Provision for a sinking fund.
• IX.—Our revenues in the aggregate have continued to answer expectation as to productiveness, but if the various objects pointed out, and which appear to be necessary to the public interest, are to be accomplished, it can hardly be hoped that there will not be a necessity for some moderate addition to them.
• Edition: current; Page: [116]X.—Prolongation of the Dutch instalment by way of loan —— terms.
• XI.—Provision for the second instalment due to the Bank of the United States.
• XII.—For interest in the unsubscribed debt during the present year. Quere.
• XIII.—Communication of the state of cessions of Light-houses. The cession in various instances has not been entire; it has reserved a partial right of jurisdiction for process; consequently is not strictly conformable to law.
• XIV.—Commissary to receive, issue, and account for all public stores would conduce much to order and economy.

PRESIDENT’S SPEECH1

It is greatly to be lamented, for the sake of humanity, that the flame of war, which had before spread over a considerable part of Europe, has, within the present year, extended itself much further; implicating all those powers with whom the United States have the most extensive relations. When it was seen here, that almost all the maritime nations either were, or were likely soon to become, parties to the war, it was natural that it should excite serious reflections about the possible consequences to this country. On the one hand, it appeared Edition: current; Page: [117]desirable that no impressions in reference to it should exist with any of the powers engaged, of a nature to precipitate arrangements or measures tending to interrupt or endanger our peace. On the other, it was probable that designing or inconsiderate persons among ourselves might, from different motives, embark in enterprises contrary to the duties of a nation at peace with nations at war with each other; ∗ ∗ ∗ and, of course, calculated to invite and to produce reprisals and hostilities. Adverting to these considerations, in a situation both new and delicate, I judged it advisable to issue a proclamation (here insert the substance of the proclamation). The effects of this measure have, I trust, neither disappointed the views which dictated it, nor disserved the true interests of our country.

The Commissioners charged with the settlement of Accounts between the United and the Individual States, completed that important business within the time limited by law; and the balances which they have reported have been placed upon the Books of the Treasury. A copy of their Report, bearing date the —— day of —— last, will be laid before Congress for their information.

The importance of the object will justify me in recalling to your consideration the expediency of a regular and adequate provision for the redemption and discharge of the Public Debt. Several obvious considerations render the economy of time, in relation to this measure, peculiarly interesting and desirable.

It is necessary that provision should be also made for paying the second instalment of the loan of $2,000,000 from the Bank of the United States, agreeably to the terms of that loan; the first having been paid pursuant to the propositions for that purpose made during the last session.

On the first day of June last an instalment of 1,000,000 florins became payable on the loans of the United States in Holland. This was adjusted by a prolongation of the period of reimbursement, in nature of a new loan, at an interest of five per cent., for a term of ten years. The charges upon this operation were a commission of three per cent. It will readily be perceived that the posture of European affairs is calculated to affect unfavorably the measures of the United States for borrowing abroad.

The productiveness of the public revenues hitherto has continued to equal the anticipations that were formed of it; but it is not expected that it will prove commensurate with all the objects that have been suggested. Some auxiliary provisions will, therefore, it is presumed, be requisite; but these, it is hoped, can be made consistently with a due regard to the convenience of our citizens, who cannot but be sensible of the true wisdom of encountering a small present addition to their contributions for the public service, to avoid a future accumulation of burdens.

PRESIDENT’S MESSAGE1

Since the application which was made to the Government of France for the recall of its present minister, that minister has furnished new and material causes of dissatisfaction with his conduct. But these occasions of offence have hitherto passed without particular notice, in the hope that it would not be long before the arrival of an order of recall would terminate the embarrassment, and in the desire, inspired by sentiments of respect and friendship for his nation, to avoid as long as possible an act of extremity toward its agent. But a case has occurred which is conceived to render further forbearance inconsistent with the dignity and perhaps the safety of the United States. It is proved, as will be seen by papers now transmitted for the information of Congress, that this foreign agent has proceeded to the extraordinary lengths of issuing commissions in the name of the French Republic to several of our citizens, for the purpose of raising within the two Carolinas and Georgia a large military force, with the declared design of employing them, in concert with such Indians as could be engaged in the enterprise, in an expedition against the colonies, in our neighborhood, of a nation with which the United States are at peace.

It would seem, likewise, from information contained in other papers, herewith also communicated, that a similar attempt has been going on in another quarter, namely, the State of Kentucky; though the fact is not yet ascertained with the requisite authenticity.

Proceedings so unwarrantable, so derogatory to the sovereignty of the United States, so dangerous in precedent and tendency, appear to render it improper that the person chargeable with them should longer continue to exercise the functions and enjoy the privileges of a diplomatic character.

The supersedence of the exercise of those functions, nevertheless, being a measure of great delicacy and magnitude, I have concluded not to come to an ultimate determination, without first placing the subject under the eye of Congress.

But unless the one or the other House shall, in the meantime, signify to me an opinion that it is not advisable so to do, I shall consider it my duty to adopt that measure after the expiration of —— days from this communication.

PROCLAMATION FOR A NATIONAL THANKSGIVING1

By George Washington, President of the United States

When we review the calamities which afflict so many other nations, and trouble the sources of individual Edition: current; Page: [121]quiet, security, and happiness, the present condition of the United States affords much matter of consolation and satisfaction.

Our exemption hitherto from the evils of foreign war, an increasing prospect of the continuance of that precious exemption, the great degree of internal tranquillity we have enjoyed, the recent confirmation of that tranquillity by the suppression of an insurrection which so wantonly threatened it; the happy course of our public affairs in general; the unexampled prosperity of all classes of our citizens; are circumstances which mark our situation with peculiar indications of the Divine beneficence toward us.

In such a state of things, it is in an especial manner our duty as a people, with devout reverence and affectionate gratitude, to acknowledge our many and great obligations to Almighty God, and to implore Him to continue and confirm the blessings we experience.

Deeply penetrated with this sentiment, I, George Washington, President of the United States, do recommend to all religious societies and denominations, and to all persons whomsoever in the United States, to set apart and observe Thursday, the 19th day of February next, as a day of public thanksgiving and prayer, and on that day to meet together and render their sincere and hearty thanks to the great Ruler of nations, for the manifold and signal mercies which distinguish our lot as a nation, particularly for the constitutions of government which unite, and by their union establish, liberty with order, for the preservation of our peace, foreign and domestic, for Edition: current; Page: [122]the seasonable check which has been given to a spirit of disorder, in the suppression of the late insurrection, and generally, for the prosperous course of our affairs, public and private; and at the same time humbly and fervently to beseech the kind Author of these blessings graciously to prolong them to us; to imprint in our hearts a deep and solemn sense of our obligations for them; to teach us rightly to estimate their immense value; to preserve us from the wantonness of prosperity from jeopardizing the advantages we enjoy, by culpable or delusive projects; to dispose us to merit the continuance of His favors by not abusing them, by our gratitude for them, and by a correspondent conduct as citizens and as men to render this country more and more a safe and propitious asylum for the unfortunate of other countries; to extend among them true and useful knowledge; to diffuse and establish habits of sobriety, order, morality, and piety; and, finally, to impart all the blessings we possess or ask for ourselves to the whole family of mankind, that so men may be happy and God glorified throughout the earth. Done, etc.

EXPLANATION1

A very virulent attack has recently been made upon the President of the United States, the present Edition: current; Page: [123]Secretary of the Treasury, and myself, as his predecessor in office, on the ground of extra payments to the President on account of his salary.

The charges against all the three are no less heinous than those of intentional violation of the Constitution, of the law, and of their oaths of office. I use the epithet intentional, because though not expressly used in the terms of the attack, it is implied in every line of it, since an involuntary error of construction, if that could ever be made out, would not warrant the imputation “of contemning and despising every principle which the people have established for the security of their rights, of setting at defiance all law and authority, and of servile submission and compliance with the lawless will and pleasure of a President.”

Were considerations personal to myself alone to be considered, the present attempt would be treated with no greater attention than has been shown to all the anonymous slanders by which I have been so long and so implacably persecuted. But convinced by a course of observation for more than four years, that there exists in this country an unprincipled and daring combination, to obstruct by any means, which shall be necessary and can be commanded, not short even of force, the due and efficient administration of the present government, to make our most important national interests subservient to those of a foreign power, and as means to these ends to destroy, by calumny and misrepresentation, the confidence of the people in the truly virtuous men of our country, and to transfer it, with the power of the Edition: current; Page: [124]state, to ambitious hypocrites and intriguing demagogues, perhaps corrupted partisans; perceiving likewise, that this infatuated combination, in the belief that the well-earned esteem and attachment of his fellow-citizens towards the Chief Magistrate of the United States, is the principal remaining actual obstacle to the execution of their plan, are making the most systematic efforts to extinguish those sentiments in the breasts of the people, I think it a duty to depart from my general rule of conduct, and to submit to the public with my name, an explanation of the principles which have governed the Treasury Department on the point in question.

I shall state in the first place, that the rule with regard to expenditures and appropriations which has uniformly regulated the practice of the department is this, viz.: to issue no money from the Treasury, but for an object for which there was a law previously passed making an appropriation, and designating the fund from which the money was to arise; but there being such a law, and an adequate fund to support the expenditure, it was deemed justifiable, as well before as after the service was performed, or the supply obtained, for which the appropriation was designed, to make disbursements from the Treasury for the object, if it appeared safe and expedient so to do. If made before, it was an advance or anticipation, for which the party was charged, and held accountable till exonerated by the performance of the service, or the furnishing of the supply. If afterwards, it was a payment, and went to some general head of account as such.

Thus, if a sum was appropriated for provisions for the army for a particular year, it was common to make advances on account to the contractors, long before the supplies were furnished. If the law was passed in one year for the next, there would be no hesitation to make the advance immediately after the passing of the law, and before the year to which the appropriation was applicable had commenced. So also sums would be furnished to the Department of War, in anticipation of the monthly pay of the officers and soldiers, and advances on account of pay, in particular circumstances, and for good reasons, would be actually made by that department to the officers and soldiers. And so likewise advances have been made for the use of the President and the members of both houses of Congress, in anticipation of their respective compensations.

It will without difficulty be comprehended, that this practice of the Treasury has in some cases been essential to the due course of the public service.

Every good judge will be sensible that from the insufficiency of individual capitals to such large advances as the supplies of an army require, it was indispensable to the obtaining of them, that anticipations from the Treasury would enable the contractors to do, what otherwise they would have been unable to do; and that these anticipations must also have had the effect of procuring the supplies on cheaper terms to the United States.

When it is answered to us, that the army has operated for several years past at several hundred miles’ distance from the seat of government; and a Edition: current; Page: [126]considerable part of the year, from the rudeness of the country, and obstructions of the waters, it is impracticable to transmit moneys to the scenes of payment, it will be perceived that without advances from the Treasury in anticipation of the pay, not only a compliance with the engagement of the government would have been impossible, but the troops must have been always left most unseasonably in arrear. In June, 1794, Congress passed a law, declaring that the army should in future be paid in such a manner as that the arrears should not exceed two months. Compliance with this regulation renders anticipations a matter of physical necessity, yet that law gave no special authority for the purpose.

A particular case, by way of example, in which, different from general rules, advances or anticipations in the War Department are necessary, respects the recruiting service. The officers, who are for a long time distant from their corps, require the accommodation of an advance of pay to be able to discharge their duty. Toward the possibility of enlisting men, it is indispensable they should carry with them the bounty money. Another, upon conjecture of what may be done, and with the possibility that from not being able to obtain the men the ultimate expenditure may not take place. This instance will suggest to reflection an infinite number of cases in the course of service in which a disbursement from the Treasury must precede the execution of the object, and may exceed the sum finally requisite for it.

These cases indicate the expediency and even Edition: current; Page: [127]necessity of the construction which has regulated the practice of the Treasury. And it might be shown, if necessary, that it is analogous to the practice under the other government of the United States, and under other governments; and this too when the theory of expenditure equally is, as expressed in our Constitution, that no money shall be expended, but in consequence of an appropriation by law.

It remains to see whether this rule of conduct, so indispensable in the practice of the department, be permitted by a fair interpretation of the Constitution and the laws.

The general injunction of the Constitution (article i., § ix.) is, that “no money shall be drawn from the Treasury but in consequence of appropriations made by law.”

That clause appears to me to be exactly equivalent to this other clause: “No money shall be drawn from the Treasury, but for which there is an appropriation made by law”; in other words, before money can legally issue from the Treasury for any purpose, there must be a law authorizing an expenditure, and designating the object and the fund. Then such a law is passed. This being done, the disbursement may be made consistently with the Constitution, either by way of advance, or anticipation, or by way of payment. It may precede or follow the service, supply, or other object of expenditure. Either will equally satisfy the words “in consequence of,” which are not words of strict import, but may be taken in several senses—in one sense, that is “in consequence of” a thing which Edition: current; Page: [128]being followed upon it, follows it in order of time. A disbursement must be either an advance, or anticipation, or a payment. ’T is not presumable that the Constitution meant to distinguish between these two modes of disbursement. It must have intended to leave this matter wholly to convenience.

The design of the Constitution in this provision was, as I conceive, to secure these important ends, —that the purpose, the limit, and the fund of every expenditure should be ascertained by a previous law. The public security is complete in this particular, if no money can be expended, but for an object, to an extent, and out of a fund, which the laws have prescribed.

Even in cases which affect only individual interests, if the terms of a law will bear several meanings, that is to be preferred which will best accord with convenience. In cases that concern the public, this rule is applicable with still greater latitude. Public convenience is to be promoted; public inconveniences to be avoided. The business of administration requires accommodation to so great a variety of circumstances, that a rigid construction would in countless instances arrest the wheels of government. It has been shown that the construction that has been adopted at the Treasury is in many cases essential in practice. This inclines the scale in favor of it,—the words “in consequence of,” admitting of various significations.

The practice of the Legislature as to appropriation laws favors this construction.

These laws are generally distinct from those which Edition: current; Page: [129]create the cause of expenditure. Thus the act which declares that the President shall be allowed twentyfive thousand dollars per annum; that which declares that each senator and representative shall be entitled to so much per day; that which determines that each officer and soldier shall have so much per month, etc.,—neither of these acts is an act of appropriation. The Treasury has not considered itself authorized to expend a single cent upon the basis of any such act; regarding it merely as constituting a claim upon the government for a certain compensation, but requiring, prior to an actual disbursement for such claim, that a law be passed, authorizing the disbursement out of a specified fund. This is what is considered as the law by which the appropriation is made, from which results to the public a double security.

Hence every year a particular act (sometimes more than one) is passed, appropriating certain sums for the various branches of the public service, and indicating the funds from which the moneys are to be drawn. The object, the sum, and the fund are all that are to be found in these acts. They are commonly, if not universally, silent as to any thing further.

This I regard as constructive of the clause in the Constitution. The appropriation laws are in execution of that provision, and fulfil all its purposes, and they are silent as to the distinction between anticipation and payment; in other words, as to the manner of disbursement.

Hence I conclude, that if there exist a law appropriating Edition: current; Page: [130]a certain sum for the salary of the President, an advance upon that sum in anticipation of the service is as constitutional as a payment after the service has been performed. In other words, that the advance of a quarter’s salary at the beginning of a quarter is as much warranted by the Constitution as the payment of it at the end of a quarter.

It is in this sense that the present Secretary of the Treasury has affirmed, that “not one dollar has at any time been advanced for the use of the President for which there was not an existing appropriation.” He did not mean to say that no money had been advanced in anticipation of the service, for the fact is otherwise; but nothing is more true than that the sums disbursed were within the limits of the sums appropriated. If there was an excess at the end of one year, there had been a previous appropriation for a succeeding year, upon which that excess was an advance.

It is objected to this practice, that the death of the party between the advance to him and the expiration of an equivalent term of service, by superseding the object of the advance, would render it a misexpenditure of so much money, and therefore a violation of the Constitution.

I answer, that the same casualty might have the same effect in other cases, in which it would be against common-sense to suppose that an advance might not be made with legality and propriety. Suppose, for example, a law was to be passed directing a given quantity of powder to be purchased for public use, and appropriating a definite sum for the Edition: current; Page: [131]purchase; and suppose intelligence brought to the Secretary of the Treasury that the quantity required could be procured for prompt payment at Boston. It cannot in such case be doubted that the sum appropriated might legally be advanced to an agent to proceed to Boston to make the purchases. Yet, that agent might die, and the money never be applied according to its destination, or the desired quantity might be procured for a less sum, and a balance remain in his hands. In either case, this would be money disbursed which was not applied to the object of the law. In the last case, there is no final object for the disbursement, because the balance is a surplus. This proves that the possibility of a failure, or falling short of the object for which an advance is made, is not an objection to its legality. Indeed, the consequence is a possible one in every case of an anticipation, whether to contractors or to other public agents, for a determinate or an indeterminate purpose.

The only consequence is, that the sums unapplied must be accounted for and refunded. The distinction here again is between an advance and a payment. More cannot certainly be finally paid than is equal to the object of an appropriation, though the sum appropriated exceed the sum necessary. But more may be advanced, to the full extent of the appropriation, than may be ultimately exhausted by the object of the expenditure, on the condition, which always attends an advance, of accounting for the application, and refunding an excess. This is a direct answer to the question, whether more can be paid Edition: current; Page: [132]than is necessary to satisfy the object of an appropriation. More cannot be paid, but more may be advanced on the accountability of the person to whom it is advanced.

But risk of loss to the public may attend this principle? This is true, but it is as true in all the cases of advances to contractors, etc., as in those of advances upon salaries and compensations. Nor does this point of risk affect the question of legality. It touches merely that of a prudent exercise of discretion. When large sums are advanced, it is usual to obtain security for their due application, or for indemnification. This security is greater or less according to the circumstances of the parties to whom the advances are made. When small sums are advanced, especially, if for the purposes quickly fulfilled, and to persons who are themselves adequate sureties, no collateral security is demanded. The head of the department “is responsible to the government for observing proper measures and taking proper precautions.” If he acts so as to incur justly the charge of improvidence or profusion, he may be dismissed, or punished, according to the nature of his misconduct.

But the principle which is set up would (it is said) be productive of confusion, distress, and bankruptcy at the Treasury, since the appropriation for the support of government is made payable out of the accruing duties of each year; and an established right in the officers of government to claim their compensations, which amount to several hundred thousand dollars per annum, either on the first day of the Edition: current; Page: [133]year, or on the first day of a quarter, before the services were rendered, would create a demand at a time when there might not, and possibly would not, be a single shilling in the Treasury, arising out of that appropriation, to satisfy it. These ideas with regard to the administration of the fund are very crude and incorrect, but it would complicate the subject to go into the development.

It is not pretended that there is an established right in the officers to claim their salaries by anticipation, at the beginning of a year, or at the beginning of a quarter. No such right exists. The performance of the service must precede the right to demand payment. But it does not follow that because there is no right in the officer to demand payment, it may not be allowable for the Treasury to advance upon account for good reasons. A discretion of this sort in the head of the department can, at least, involve no embarrassments to the Treasury, nor the formidable evils indicated; for the officer who makes the advance, being himself the judge, whether there is a competent fund, and whether it can be made with convenience to the Treasury, he will only make it when he perceives that no evil will ensue.

Let me recur to the example of advances to contractors for supplying the army. Suppose that in the terms of the contract certain advances were stipulated and made, but it turned out, nevertheless, that the contractor, disappointed in the funds on which he had relied, could not execute his contract without further advances. Here there would be no right on his part to demand such further advances; but there Edition: current; Page: [134]would be a discretion in the Treasury to make them. This is the example of a discretion to do what there is not a right to demand. The existence of this discretion can do no harm, because the head of the Treasury will judge whether the state of it permits the required advances. But it is essential that the discretion should exist, because, otherwise, there might be a failure of supplies which no plan that could be substituted might be able to avert.

Yet the discretion is in neither case an arbitrary one; it is one which the head of the department is responsible to exercise with a careful eye to the public interest and safety. The abuse of it—in other words, the careless or wanton exercise of it, would be a cause of dismission for incapacity, or of punishment for malconduct.

Thus, advances on account of salaries, or to contractors for procuring public supplies, might be carried so far, and so improvidently managed, as to be highly culpable and justly punishable; but this is a different question from the violation of Constitution or law.

In all the cases it is a complete answer to the objection of embarrassment to the Treasury, that not the will of the parties, but the judgment of the head of the department is the rule and measure of the advances which he may make, within the bounds of the sums appropriated by law.

I consider the law which has been cited with regard to the pay of the army, as a legislative recognition of the rule of practice at the Treasury. The Legislature could not have been ignorant that it was Edition: current; Page: [135]impracticable at certain seasons of the year to convey the money to the army to fulfil their injunction, without an advance from the Treasury before the pay became due. They presuppose a right to make this advance, and enjoin that the troops shall not be left more than two months in arrear. The origin of this law enforces the observation. It is known that it passed in consequence of a representation that the pay of the army was left too long in arrear, and it was intended to quicken the measures of payment. No person in either house of the Legislature, I believe, doubted that there was power to precede the service by advances, so as to render the payment even more punctual than was enjoined.

Indeed such advances, when the army operated at a distance, were necessary to fulfil the contract with the army. It became due monthly, and in strictness of contract, was to be made at the end of each month,—a thing impossible, unless advanced from the Treasury before it became due. No special authority was ever given for this purpose to the Treasury, but it appears to have been left to take its course on the principle that the disbursement might take place as soon as there was an appropriation, though in anticipation of the term of service.

The foregoing observations vindicate, I trust, the construction of the Treasury as to the power of making disbursements in anticipation of services and supplies, if there has been a previous appropriation by law for the object, and if the advances never exceed the amount appropriated; and at the same time evince that this practice involves no violation of the Edition: current; Page: [136]constitutional provisions with respect to appropriations.

I proceed to examine that clause which respects the pay of the President. It is in these words: “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.”

I understand this clause as equivalent to the following: “There shall be established by law for the services of the President a periodical compensation, which shall not be increased nor diminished during the term for which he shall have been elected, and neither the United States nor any State shall allow him any emolument in addition to his periodical compensation.”

This will, I think, at first sight appear foreign to the question of provisional advance on account of the compensation periodically established by law for his services.

The manifest object of the provision is to guard the independence of the President from the legislative control of the United States or of any State, by the ability to withhold, lessen, or increase his compensation.

It requires that the law shall assign him a definite compensation for a definite time. It prohibits the Legislature from increasing or diminishing this compensation during any term of his election, and it prohibits every State from granting him an additional emolument. This is all that the clause imports.

It is therefore satisfied as to the United States, when the Legislature has provided that the President shall be allowed a certain sum for a certain term of time; and so long as it refrains from making an alteration in the provision. All beyond this is foreign to the subject.

The Legislature having done this, an advance by the Treasury in anticipation of the service cannot be a breach of the provision. ’T is in no sense an additional allowance by the United States. ’T is a mere advance or loan upon account of the established periodical compensation; will legal ideas, or common parlance, warrant the giving the denomination of additional compensation, to the mere anticipation of the term of an established allowance? If they will not, ’t is plain such an advance is no breach of this part of the Constitution.

If the clause is to be understood literally, it leads to an absurdity. The terms are, “The President shall at stated times receive,” etc.; and again, “he shall not receive within that period,” etc.

His allowance is at the rate of 25,000 dollars per annum, 6,250 dollars quarter-yearly. Suppose at the end of a year an arrear of 5,000 dollars was due to him, which he omits to receive till some time in the succeeding year, and in the succeeding year actually receives that balance with his full salary for the last year. ’T is plain, that he would not have received in the whole more than he was allowed by law, and yet in the stated period of one year he would have received 30,000 dollars, five thousand more than his salary for the year. In a literal sense, then, Edition: current; Page: [138]constitutional provision as to actual payment would not have been complied with; for within the first stated period he would not have received the compensation allotted, and within the second of them he would have received more. In a literal sense it would be necessary to make the payment at the precise day, to the precise amount, neither more nor less, which as a general rule the indispensable forms of the Treasury render impossible. It follows that actual receipt or payment are not the criterion—but the absolute definitive allowance by law. An advance beforehand, or a payment afterward, are equally consistent with the true spirit and meaning of this part of the Constitution.

Let us now see if the construction of the Treasury violates the law which establishes the President’s compensation.

The act of the 29th of September, 1789, allows to the President at the rate of 25,000 dollars per annum, to commence from the time of his entering on the duties of his office, and to be paid quarterly out of the Treasury of the United States.

The question is, what is to be understood from these words, “to be paid quarterly out of the Treasury of the United States”?

The conception of the Treasury has been, that these words, as used in this and in the analogous cases, were meant to define the time when the right of an individual to the compensation earned became absolute, not as a command to the Treasury to issue the money at a precise day and no other.

As mentioned above, the indispensable forms of Edition: current; Page: [139]the Treasury, in compliance with the law establishing the department, and to secure a due accountability, make it impracticable to pay at the day; and if expressions of the kind in question are to be construed literally, and as a positive injunction to the Treasury to issue the money at the period defined, it will be as much a breach of the law to pay afterward as to advance beforehand.

The position that an after-payment would be a breach of the law, will hardly be contended for; and if not, the alternative seems to be the construction adopted by the Treasury. Such expressions denote simply, that at certain periods individuals acquire a perfect right to particular sums of money for their services, which it becomes a matter of course to pay; but they are not obliged to receive it at the day, nor is the Treasurer restrained from paying it afterward, or from anticipating by way of loan, if there are adequate reasons for such anticipation.

It is not true, as alleged, that the invariable practice of the Treasury as to compensations for services differs in principle from what was done in the case of the President.

Instances to the contrary have been stated. As to what regards the army, there has been sufficient explanation.

But it will be useful to be more particular as to the course which has been pursued with reference to the two houses of Congress.

The law that regulates their compensations (passed the 29th of September, 1789) allows to each member a compensation of six dollars for every day he shall Edition: current; Page: [140]attend the House to which he belongs, together with six dollars for every twenty miles of distance to and from his place of residence; and directs that the compensation which shall be due shall be certified by the President of the Senate or Speaker of the House of Representatives, and shall be paid as public accounts are paid out of the Treasury.

By an arrangement between each house and the Treasury Department, the course actually pursued has been as follows:

Whether there were any advances actually made to the members, in anticipation of their compensations, was a point never discussed between the Treasury and the presiding officers of the two houses with whom the money was deposited. But I understand that examples of such advances did exist in relation to the House of Representatives. The fact is, however, Edition: current; Page: [141]immaterial to the point in issue; that must be tested by the times of the advances from the Treasury; and it is certain that these were usually made in anticipation of compensations to grow due; and it is also certain that the course was well understood by both houses, and is exhibited by the accounts of the Treasurer laid before them in each session.

If, therefore, the advances for the President were unconstitutional and illegal, those for both houses of Congress were equally so; and if the President be chargeable with a violation of the Constitution, of the laws, and of his oath of office, on account of extra advances to his secretaries, whether with or without his privity, the members of both houses of Congress, without exception, have been guilty of the same crimes, in consequence of the extra advances, with their privity, to the presiding officers of their respective houses. A distinction may possibly be attempted to be taken in the two cases from this circumstance, that the law which allots the compensation of the members of the two houses does not use the words, “to be paid every day out of the Treasury,” while that which establishes the President’s compensation does use the terms, “to be paid quarterly out of the Treasury.” But this distinction would be evidently a cavil. When a law fixes the term of a compensation, whether per day, per month, per quarter, or annum, if it says nothing more, it is implied that it is payable at each epoch out of the Treasury, in the same sense as if this was expressly said. This observation applies as well to the monthly pay of the army as to the daily pay of Congress.

Having examined the question as it stands upon the Constitution and the laws, I proceed to examine the course of the fact.

But previous to this I shall take notice of one point about which there have been doubts—and which it is not within my present recollection whether definitely settled or not by the accounting officers of the department. It respects the time of the commencement of the President’s compensation. The law establishing it refers to the time of his entering upon the duties of his office, but without defining that time.

When in a constitutional and legal sense did the President enter upon the duties of his office?

The Constitution enjoins that before he enters upon the execution of his office, he shall take a certain oath, which is prescribed. This oath was not taken till the 30th of April, 1789. If we date the entrance upon the duties of his office at the time of taking this oath, it determines the epoch to be the 30th of April, 1789.

The purpose of the arrangement which was made for the payment of the members of Congress was twofold. It was to obviate embarrassment to them by facilitating and accelerating the receipt of their compensations, and to avoid an inconvenient multiplication of adjustments, entries, warrants, and payments. The theory of the provision admitted of as many Treasury settlements, entries, warrants, and payments, each day, as there were members in both houses.

But there is room for another construction. The Edition: current; Page: [143]3d of March, 1789, is the day when the term for which the President, the Vice-President, and the members of the Congress were first elected, was deemed to commence. The Constitution declares that the President shall hold his office for four years; and it is presumable that the clause respecting his compensation contemplates its being for the whole term for which he is to hold his office. Its object may otherwise be evaded.

It is also, I believe, certain, that the President may execute his office and do valid acts as President without previously taking the oath prescribed; though in so doing, if voluntarily, he would be guilty of a breach of the Constitution, and would be liable to punishment. The taking the oath is not, therefore, necessarily, the criterion of entering upon the duties of office.

It is a fact, if I remember right, that the President was at New York, the place assigned for the first meeting of the government, on the 3d of March, 1789, which might be considered as an entrance upon the duties of his office; though from the delays which attended the meeting of Congress, the oath was deferred till the 30th of April following.

On the strength of these facts, it may be argued, that by force of the Constitution, dating the commencement of the President’s term of service on the 3d of March, 1789, the law respecting his compensation ought to be considered as referring to that period, for a virtual entrance upon the duties of his office.

In stating this construction, I must not be understood to adopt it. I acknowledged that the other, as most agreeable to the more familiar sense of the law terms, has appeared to me preferable, though I had reason to believe that an important officer of the government (I do not mean the President) once thought otherwise. The result, in point of fact, will vary, as the one or the other is deemed the true construction.

I return to an examination of the course of the transaction.

Authentic statements which have been published, with some supplementary ones received from the Treasury upon the occasion, exhibit the following results.

1st Result. The sums advanced for the use of the President from the Treasury have never exceeded the sums previously appropriated by law: though they have sometimes exceeded, sometimes fallen short, of the sums actually due for services. This is thus explained:

The residue of the proposition is illustrated by the quarterly statement of salary and advances at foot.

2d Result. The Treasury has never been in advance for the President beyond the sums actually accrued, and due to him for services, to the amount of one quarter’s salary. The largest advance at any time is $6,154. A quarter’s salary is, $6,250. Deduct the sums at certain times in arrear from those at other times in advance, the average of the advances for the whole term of his service is about ——

The particulars of this result appear in the statement at foot. This statement is digested by a quarter of the calendar year, which is the established course of the Treasury, and a course essential to the order of its affairs; that is to say, it is essential there should be certain fixed periods to which the ordinary stated disbursements are referred, and in conformity with which the accounts of the Treasury are kept.

3d Result. On the 1st of October, 1795, there was actually due to the President, for his compensation, over and above all advances for his use, the sum of $846. This likewise appears from the statement at foot, and entirely refutes the malevolent suggestion which has appeared, of an accumulation of advances to twelve or fifteen thousand dollars.

4th Result. The sums advanced for the President prior to the commencement of the term of his second election, the 3d of March, 1793, fall short of the sums appropriated for his compensation, $2,850. Thus:

It is nevertheless true, that not only have there been frequent anticipations of the President’s salary, as appears more particularly in the statement at foot, but, counting from the 30th of April, 1789, as the commencement of his compensation, the sums advanced for his use prior to the 3d of March, 1793, the expiration of his first term of election, exceed those actually due up to that period, by $1,108.34.

If, on the contrary, the construction were adopted which dates his compensation on the 4th of March, 1789, there would have been a balance due to him on the 4th of March, 1795, of 2,850 dollars.

But proceeding on the first supposition, the whole question still turns upon the legality of the advances. If it was legal to make him an advance, in anticipation of his salary, within any period of his election—within one quarter, on account of a succeeding quarter,—it was equally legal to do it within one year, on account of a succeeding year; and within one term of an election, on account of a succeeding term. The only inquiry would be, in either case, Will the sum advanced be within the bounds of the sums before that time appropriated? It has been seen that the sums appropriated for the first four years of service exceeded those advanced prior to the commencement Edition: current; Page: [148]of the second period of election by 2,850 dollars; besides this, on the 28th of February, 1793, there was a further appropriation of 25,000 dollars, so that at the beginning of the second term the total appropriations exceeded the total disbursements by 27,850 dollars.

Thus has it been shown that the advances for the use of the President have been governed by a rule of construction which has obtained in analogous cases, or, more truly, which has regulated the general course of disbursements from the Treasury—a rule which, I trust, has been demonstrated to be consonant with the Constitution and the laws.

It is requisite to inquire a little further, whether there has been any improper use or rather abuse of the discretion which is contended for; for here there is likewise an unquestionable responsibility. It is seen that the advances have at no time equalled one quarter’s salary.

I ask, Was it unreasonable or unfit, if constitutional and legal, to afford the President of the United States an accommodation of this extent?

I pledge my veracity that I have always understood, and to this moment I have good reason to be satisfied, that the expenses of the President—those of his household and others incident to his official situation—have fully equalled, if not on some occasions exceeded, the allowance made to him by the United States. Under this conviction especially, how could the head of a department hesitate by so small an accommodation as the advance of less than a quarter’s salary, to enable the President of the Edition: current; Page: [149]United States to meet his expenses as they accrued, without being obliged to encroach upon his own private resources, or to resort to the expedient of borrowing, to defray expenses imposed upon him by public situation? I knew that no possible risk could attend the advance, little considerable as it was. The estate of the President was answerable in case of death or other premature vacancy for the indemnification of the government.

Reasons of a peculiar kind forbade hesitation. The scale of expense was such as to render the income even of what is deemed a large landed property in this country, a slender auxiliary; without an advance from the Treasury, it was not impossible borrowing might be necessary. Was it just to compel the President to resort to that expedient, for a purpose in fact public, at his private expense? Was it for the dignity of the nation that he should have been exposed to a necessity, an embarrassment of this sort?

My judgment and feelings answered both these questions in the negative. I entertained no doubt of the constitutionality and legality of the advance, and I thought the making of it due to the situation, due to propriety, due to every public consideration connected with the subject. I can never regret it.

How far the President was privy to the course of advances I cannot say; but it is certain that they have been all made to his private secretaries upon a general arrangement, and not by special directions from him. And I think it proper to add, that very early in the day, and probably before any was made, Edition: current; Page: [150]on an application to Mr. Lear for a sum which would constitute an advance, he qualified it by this observation: “If in your opinion it can be done with legality and perfect propriety.” I answered that I had no doubt of either. I shall not attempt to assume any greater responsibility in this transaction than belongs to me; but I have been accustomed to think that the responsibility for the due and regular disbursement of moneys from the Treasury lies exclusively with the officers of the department, and that, except in a very palpable and glaring case, the charge of blamable participation could not fall on any other person.

As between the officers of the Treasury, I take the responsibility to stand thus. The Secretary and Comptroller, in granting warrants upon the Treasury, are both answerable for their legality. In this respect, the Comptroller is a check upon the Secretary. With regard to the expediency of an advance, in my opinion, the right of judging is exclusively with the head of the department. The Comptroller has no voice in this matter. So far, therefore, as concerns legality in the issues of money while I was in the department, the Comptroller must answer with me; so far as a question of expediency or the due exercise of discretion may be involved, I am solely answerable. And uniformly was the matter so understood between successive comptrollers and myself. Also it is essential to the due administration of the department, that it should have been so understood.

I have stated my reasons for considering the advances made, for the use of the President, constitutional, Edition: current; Page: [151]legal, and proper. But I pretend not to infallibility; ’t is possible I may have erred; but to convert error into guilt, it must be supposed to have been wilful. To suppose it wilful, it is necessary to trace it to some interested or sinister motive. If any appear, let it be pointed out. It is not common for men to commit crimes without some adequate inducement.

What criminal inducement would have probably influenced the rule of construction as to advances which has been stated to have been adopted and acted upon at the Treasury? What criminal inducement particularly could have led to the application of this rule to the President’s compensation, in so restricted a form as never to equal one quarter’s salary? Who in his senses will believe that the President would consciously have hazarded the imputation of violating the Constitution, the laws, and his oath of office, by imposing on the officers of the Treasury the necessity of making him so paltry an advance, falsely and ridiculously called a donation? Who will believe that those officers would have consented to expose themselves to the same imputation, by compliance, when they knew that the evidence of their guilt must regularly be communicated in each succeeding session, to both houses of Congress, and to the public at large? To believe either, is to believe all the parties concerned foolish, as well as profligate in the extreme, destitute equally of intellect as of principle.

To an observation made by Mr. Wolcott in the communication from the Treasury, it has been Edition: current; Page: [152]answered, that there was no merit in the disclosure, because the number of agents and the forms of the Treasury rendered it unavoidable. The fact is so—but the force of the observation turns upon the egregious folly of intentionally committing the crimes imputed; when it was certain, beforehand, that the means of detection must be furnished, and without delay, by the Treasury itself.

It is certain, that there never has been the least attempt at mystery or concealment. The documents reported by the Treasury to both houses of Congress, carried in their face the prominent evidence of what was done. Frequent and indiscriminate personal suggestions regarded the principle of action. It is evident that it must have been understood and acquiesced in by all the members of the two houses of Congress.

Hard would be the condition of public officers if even a misconstruction of constitutional and legal provisions, attended with no symptom of criminal motive, carrying the proof of innocence in the openness and publicity of conduct, could justly expose them to the odious charges which on this occasion are preferred. Harder still would be their condition if, in the management of the great and complicated business of a nation, the fact of misconstruction, which is to constitute their guilt, is to be decided by the narrow and rigid rules of a criticism no less pedantic than malevolent. Pre-eminently hard in such circumstances was the lot of the man who, called to the head of the most arduous department in the public administration in a new government, without Edition: current; Page: [153]the guidance of antecedent practice and precedent, had to trace out his own path, and to adjust for himself the import and bearings of delicate and important provisions in the Constitution and in the laws.

Reposing myself on a consciousness which, in no possible situation, can fail to prove an invulnerable shield to my tranquillity, I leave to a candid public to pronounce the sentence which is due to an attempt, on such a foundation, to erect against the President of the United States, my successor in office, and myself, the heinous charges of violation of the Constitution, violation of the laws, exaction of arbitrary will on the one side, abject submission on the other, misapplication of the public money, and, to complete the newspaper group, intentional perjury.

WASHINGTON’S SPEECH TO CONGRESS1

I trust I do not deceive myself while I indulge the persuasion, that I have never met you at any period, when more than at the present the situation of our public affairs has afforded just cause for mutual congratulation, and for inviting you to join with me in profound gratitude to the Author of all Good for the numerous and distinguished signal blessings we enjoy.

The termination of the long, expensive, and distressing war, in which we have been engaged with Edition: current; Page: [154]certain Indians northwest of the Ohio, is placed in the option of the United States by a treaty which the commander of our army has provisionally concluded with twelve of the most powerful of the hostile tribes in that region. In the adjustment of these terms, the satisfaction of the Indians was deemed an object worthy no less of the policy than of the liberality of the United States, as the necessary basis of permanent tranquillity. This object, it is believed, has been fully attained. The articles agreed upon will be immediately laid before the Senate for their advice and consent.

The Creek and Cherokee Indians, who alone of the Southern tribes had annoyed our frontier, have lately confirmed their pre-existing treaties with us, and have given unequivocal evidence of a sincere disposition to carry them into effect by the surrender of the prisoners and property they had taken. But we have to lament that the fair prospect in this quarter has been momentarily clouded by wanton murders, which some citizens of Georgia have perpetrated on hunting parties of the Creeks, which have again involved that frontier in disquietude and danger, or which will be productive of further expense, and is likely to occasion more effusion of blood. Measures are in train to obviate or mitigate the consequences, and with the reliance of being able at least to prevent general hostility.

A letter from the Emperor of Morocco announces to me the renewal of our treaty, and consequently the restoration of peace, with that power. But the instrument for this purpose, which was to pass Edition: current; Page: [155]through the hands of our minister resident at Lisbon, who was temporarily absent on business of importance, is not yet received. It is with peculiar satisfaction I can add to this intelligence, that an agent, deputed on our part to Algiers, communicates that the preliminaries of a treaty with the regency of that country had been settled, and that he had no doubt of completing the business of his mission, comprehending the redemption of our unfortunate fellow-citizens from a grievous captivity.

The last advices from our envoy to the court of Madrid give, moreover, the pleasing information that he had received positive assurances of a speedy and satisfactory conclusion of his negotiation. While the event, depending on unadjusted particulars, cannot be regarded as ascertained, it is agreeable to cherish the expectation of an issue, which, securing amicably very essential interests of the United States, will, at the same time, establish the foundation of durable harmony with a power whose friendship we have so uniformly and so sincerely endeavored to cultivate.

Though not before officially disclosed to the House of Representatives, you are all apprised that a treaty of amity, commerce, and navigation has been negotiated with Great Britain, and that the Senate, by the voice of two thirds, have advised and consented to its ratification, upon a condition which excepts part of one article. Agreeably to this advice and consent, and to the best judgment I was able to form of the public interest, after full and mature deliberation, I have added my sanction. The result Edition: current; Page: [156]on the part of His Britannic Majesty is unknown. When received, the subject will, without delay, be placed before Congress.

This interesting summary of affairs, with regard to the foreign powers between whom and the United States controversies have subsisted, and with regard also to those of our Indian neighbors, with whom we have been in a state of enmity or misunderstanding, opens a wide field for consoling and gratifying reflections. If, by prudence and moderation on every side, the extinguishment of all the causes of external discord, which have heretofore menaced our tranquillity, on terms consistent with our national rights and honor, shall be the happy result, how firm and how precious a foundation will have been laid for establishing, accelerating, and maturing the prosperity of our country!

Contemplating the situation of the United States in their internal as well as external relations, we find equal cause for contentment and satisfaction, while the greater part of the nations of Europe, with their American dependencies, have been, and several of them continue to be, involved in a contest unusually bloody, exhausting, and calamitous; in which the ordinary evils of foreign war are aggravated by domestic convulsion, riot, and insurrection; in which many of the arts most useful to society are exposed to decay or exile; and in which scarcity of subsistence embitters other sufferings, while even the anticipations of the blessings of peace and repose are alloyed by the sense of heavy and accumulating burthens, which press upon all the departments of industry, Edition: current; Page: [157]and threaten to clog the future springs of government;—our favored country, happy in a striking contrast, enjoys universal peace—a peace the more satisfactory because preserved at the expense of no duty. Faithful to ourselves we have not been unmindful of any obligation to others. Our agriculture, our commerce, our manufactures, prosper beyond former examples (the occasional depredations upon our trade, however detrimental to individuals, being greatly overbalanced by the aggregate benefits derived to it from a neutral position). Our population advances with a celerity which exceeds the most sanguine calculations, augmenting fast our strength and resources, and guaranteeing more and more our national security. Every part of the Union gives indications of rapid and various improvement. With burthens so light as scarcely to be perceived, with resources more than adequate to our present exigencies, with a mild Constitution and wholesome laws, is it too much to say that our country affords a spectacle of national happiness never surpassed, if ever before equalled, in the annals of human affairs?

Placed by Providence in a situation so auspicious, motives the most sacred and commanding admonish us, with sincere gratitude to Heaven and pure love of our country, to unite our efforts to preserve, prolong, and improve the immense advantages of our condition. To co-operate with you in this most interesting work is the dearest wish of my heart.

Fellow-citizens:—Amongst the objects which will claim your attention in the course of the session, a Edition: current; Page: [158]review of our military establishment will not be the least important. It is called for by the events which have changed, and are likely still further to change, the relative situation of our interior frontier. In this review you will no doubt allow due weight to the consideration, that the questions between us and certain foreign powers are not yet finally adjusted, that the war in Europe is not yet terminated, and that the evacuation, of Western posts, when it shall happen, will demand a provision for garrisoning and securing them. You will consider this subject with a comprehensiveness equal to the extent and variety of its relations. The Secretary at War will be directed to lay before Congress the present state of the Department of War.

With the review of our army is naturally connected that of our militia establishment. It will merit inquiry what imperfections, in the existing plan, experience may have unfolded; what improvements will comport with the progress of public opinion. The subject is of so much magnitude, in my estimation, as to beget a constant solicitude that the consideration of it will be renewed, till the greatest attainable degree of perfection is accomplished. Time, while it may furnish others, is wearing away some advantages for forwarding the object. None better deserves the persevering attention of our public councils.

In contemplating the actual condition of our Western borders, the pleasure it is calculated to afford ought not to cause us to lose sight of a truth, to the confirmation of which every day’s experience contributes, Edition: current; Page: [159]viz.: That the provisions heretofore made are inadequate to protect the Indians from the violences of the irregular and lawless part of the frontier inhabitants; and that, without some more effectual plan for restraining the murders of those people, by bringing the murderers to condign punishment, all the exertions of the government to prevent or repress the outrages of the Indians, and to preserve peace with them, must prove fruitless—all our present agreeable prospects fugitive and illusory. The frequent destruction of innocent women and children, chiefly the victims of retaliation, must continue to shock humanity, while an expense truly enormous will drain the treasure of the Union.

To enforce the observance of justice upon the Indians, it is indispensable there should be competent means of rendering justice to them. If to these means could be added a provision to facilitate the supply of the articles they want on reasonable terms (a measure the mention of which I the more readily repeat, as in all the conferences with them they urge it with solicitude), I should not hesitate to entertain a strong hope of a permanent good understanding with them. It is agreeable to add that even the probability of their civilization, by perseverance in a proper plan, has not been diminished by the experiments thus far made.

FAREWELL ADDRESS1

WASHINGTON’S FAREWELL ADDRESS1

The period for a new election of a citizen to administer the executive government of the United States being not very distant, and the time actually Edition: current; Page: [188]arrived when your thoughts must be employed in designating the person who is to be clothed with that important trust for another term, it appears to me proper, and especially as it may conduce to a more distinct expression of the public voice, that I should now apprise you of the resolution I have formed to Edition: current; Page: [189]decline being considered among the number of those out of whom a choice is to be made.

I beg you, nevertheless,1 to be assured that the resolution which I announce has not been taken without a strict regard to all the considerations attached to2 the relation which, as a dutiful citizen, I bear3 to my4 country, and that in withdrawing the tender of my service, which silence in my situation might imply, I am influenced by no diminution of zeal for its future interest, nor by any deficiency of grateful respect for its past kindness, but by a full conviction that such a step is compatible with both.

The acceptance of, and the continuance hitherto in the office to which your suffrages have twice called me, has been a uniform sacrifice of private inclination to5 the opinion of public duty coinciding with what appeared to be your wishes. I had constantly hoped that it would have been much earlier in my power, consistently with motives which I was not at liberty to disregard, to return to that retirement from which those6 motives had reluctantly drawn me.

The strength of my desire to withdraw previous to the last election, had even led to the preparation of Edition: current; Page: [190]an address to declare it to you, but deliberate1 reflection on the very critical and perplexed posture of our affairs with foreign nations, and the unanimous advice of men2 every way entitled to my confidence, obliged3 me to abandon the idea.

I rejoice that the state of your national concerns, external as well as internal, no longer renders the pursuit of my inclination incompatible with the sentiment of duty or propriety, and4 that whatever partiality any portion of you may still retain for my services, they, under the existing circumstances of our country, will not disapprove the5 resolution6 I have formed.

The impressions under which I first accepted the arduous trust of Chief Magistrate of the United States, were explained on the proper occasion. In the discharge of this trust, I can only say that I have, with pure intentions, contributed towards the organization and administration of the government the best exertions of which a very fallible judgment was capable; that conscious at7 the outset of the inferiority of my qualifications for the station, experience in my own eyes, and perhaps still more in those of others, has not diminished in me the diffidence of myself—and every day the increasing weight of years admonishes me more and more that the shade of retirement is as necessary8 as it will be welcome to me. Satisfied that if any circumstances have given a peculiar value to my services, they were temporary, I have the consolation to believe that Edition: current; Page: [191]while inclination and prudence urge me to recede from the political scene, patriotism does not forbid it. May I also have that of knowing in my retreat,1 that the involuntary errors which I have probably committed have been the causes of no serious or lasting mischief to my country, and thus be spared the anguish of regrets which would disturb the repose of my retreat and embitter the remnant of my life! I may then expect to realize, without alloy, the pure enjoyment of partaking, in the midst of my fellow-citizens, of the benign influence of good laws under a free government; the ultimate object of all my wishes, and to which I look as the happy reward2 of our mutual labors and dangers.

In looking forward to the moment which is to terminate the career of my public life, my sensations do not permit me to suspend the deep acknowledgments required by that debt of gratitude, which I owe to my beloved country, for the many honors it has conferred upon me, still more for the distinguished and steadfast confidence it has reposed in me, and for the opportunities it has thus afforded me3 of manifesting my inviolable attachment, by services faithful and persevering—however the inadequateness of my faculties may have ill seconded my4 zeal. If benefits have resulted to you, my fellow-citizens, from these services, let it always be remembered to your praise, and as an instructive example in our annals, that the constancy of your support amidst Edition: current; Page: [192]appearances1 dubious, vicissitudes of fortune often discouraging, and in situations in which, not unfrequently, want of success has seconded the criticisms of malevolence,22 was the essential prop of the efforts and the guaranty of the measures by which they were achieved.

Profoundly penetrated with this idea, I shall carry it with me to my retirement, and to my grave, as a lively incitement to unceasing vows (the only returns I can henceforth make) that Heaven may continue to you the choicest tokens of its beneficence, merited by national piety and morality; that your union and brotherly affection may be perpetual; that the free Constitution, which is the work of your own hands, may be sacredly maintained; that its administration in every department may be stamped with wisdom and virtue; that, in fine, the happiness of the people of these States under the auspices of liberty may be made complete, by so careful a preservation, and so prudent a use of this blessing, as will acquire them the glorious satisfaction of recommending it to the affection, the praise, and the adoption of every nation which is yet a stranger to it.

Here, perhaps, I ought to stop; but a solicitude for your welfare, which cannot end but with my life, and the fear that there may exist projects unfriendly to it, against which it may be necessary you should be guarded, urge me in taking leave of you to offer to your solemn consideration and frequent review, Edition: current; Page: [193]some sentiments, the result of mature reflection confirmed by observation and experience, which appear to me essential to the permanency of your felicity as a people. These will be offered with the more freedom, as you can only see in them the disinterested advice of a parting friend, who can have no personal motive to tincture or bias his counsel.

Interwoven as is the love of liberty with every fibre of your hearts, no recommendation is necessary to fortify your attachment to it. Next to this, that unity of government which constitutes you as one people, claims your vigilant care and guardianship—as a main pillar of your real independence, of your peace, safety, freedom, and happiness.

This being the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively, however covertly and insidiously levelled, it is of the utmost importance that you should appreciate, in its full force, the immense value of your political union to your national and individual happiness—that you should cherish towards it an affectionate and immovable attachment, and that you should watch for its preservation with zealous solicitude.

For this, you have every motive of sympathy and interest. Children for the most part of a common country, that country claims and ought to concentrate your affections. The name of American must always gratify and exalt the just pride of patriotism more than any denomination which can be derived from local discriminations. You have, with slight shades of difference, the same religion, manners, Edition: current; Page: [194]habits, and political institutions and principles; you have, in a common cause, fought and triumphed together. The independence and liberty you enjoy are the work of joint councils, efforts, dangers, sufferings, and successes. By your union you have achieved them, by your union you will most effectually maintain them.

The considerations which address themselves to your sensibility are greatly1 strengthened2 by those which apply to your interest. Here, every portion of our country will find the most urgent and commanding motives for guarding and preserving the union of the whole.

The North, in3 intercourse with the South, under the equal laws of one government, will, in the productions of the latter, many of them peculiar, find vast additional resources of maritime and commercial enterprise.4 The South, in the same intercourse, will share in the benefits of the agency of the North, will find its agriculture promoted and its commerce extended by turning into its own channels those means of navigation which the North more abundantly affords; and while it contributes to extend the national navigation, will participate in the protection of a maritime strength to which itself is unequally adapted. The East, in a like intercourse with the West, finds5 a valuable vent for the commodities which it brings from abroad or manufactures at home. The West derives through this channel Edition: current; Page: [195]an essential supply of its wants; and what is far more important to it, it must owe the secure and permanent enjoyment of the indispensable outlets for its own productions to the weight, influence, and maritime resources of the Atlantic States.1 The tenure by which it could hold this advantage, either from its own separate strength, or by an apostate and unnatural connection with any foreign nation, must be intrinsically and necessarily precarious, at every moment liable to be disturbed by the2 combinations of those primary3 interests which constantly regulate the conduct of every portion of Europe—and where every part finds a particular interest in the Union. All the parts of our country will find in their Union4 strength, proportional security from external danger, less frequent interruption of their peace with foreign nations; and what is far more valuable, an exemption from those broils and wars between the parts if disunited, which, then, our rivalships, fomented by foreign intrigue or the opposite alliances with foreign nations engendered by their mutual jealousies, would inevitably produce.5

These considerations speak a conclusive language to every virtuous and considerate mind. They place Edition: current; Page: [196]the continuance of our union among the first objects of patriotic desire. Is there a doubt whether a common government can long embrace so extensive a sphere? Let time and experience decide the question. Speculation in such a case ought not to be listened to. And ’t is rational to hope that the auxiliary1 governments of the subdivisions, with a proper organization of the whole, will secure a favorable issue to the experiment. ’T is allowable to believe that the spirit of party, the intrigues of foreign nations, the corruption and the ambition of individuals, are likely to prove more formidable adversaries to the unity of our empire, than any inherent difficulties in the scheme. ’T is against these that the guards2 of national opinion, national sympathy, national prudence and virtue, are to be erected. With such obvious motives to union, there will be always cause from the fact itself to distrust the patriotism of those who3 may endeavor to weaken its bands. And by all the love I bear you, my fellowcitizens, I conjure4 you, as often as5 it appears, to frown upon the attempt.

Besides the more serious causes which have been hinted at as endangering our Union, there is another less dangerous, but against which it is necessary to be on our guard; I mean the petulance of party6 differences of opinion. It is not uncommon to hear the irritations which these excite, vent themselves in declarations that the different parts of the Union are ill assorted and cannot remain together—in Edition: current; Page: [197]menaces from the inhabitants of one part to those of another, that it will be dissolved by this or that measure. Intimations of the kind are as indiscreet as they are intemperate. Though frequently made with levity and without being in earnest, they have a tendency to produce the consequence which they indicate. They teach the minds of men to consider the Union as precarious, as an object to which they are not to attach their hopes and fortunes, and thus weaken the sentiment in its favor. By rousing the resentment and alarming the pride of those to whom they are addressed, they set ingenuity to work to deprecate the value of the object, and to discover motives of indifference to it. This is not wise. Prudence demands that we should habituate ourselves in all our words and actions to reverence the Union as a sacred and inviolable palladium of our happiness, and should discountenance whatever can lead to a suspicion that it can in any event be abandoned.

’T is matter of serious concern that parties in this country for some time past have been too much characterized by geographical discriminations—northern and southern States, Atlantic and western country. These discriminations,1 which are the mere artifice of the spirit of party (always dexterous to avail itself of every source of sympathy,2 of every handle by which the passions can be taken hold of, and which has been careful to turn to account the circumstance of territorial vicinity3), have furnished an argument against the Union as evidence of a real difference of local interests and views, and serve to Edition: current; Page: [198]hazard it by organizing large districts of country under the direction of1 different factions whose passions and prejudices, rather than the true interests of the country, will be too apt to regulate the use of their influence. If it be possible to correct this poison in the affairs of our country, it is worthy the best endeavors of moderate and virtuous men to effect it.

One of the expedients which the partisans of faction employ towards strengthening their influence by local discriminations,2 is to misrepresent the opinions and views of rival districts. The people at large cannot be too much on their guard against the jealousies which grow out of these misrepresentations. They tend to render aliens to each other those who ought to be tied together by fraternal affection. The people of the western country have lately had a useful lesson on this subject. They have seen in the negotiation by the Executive, and in the unanimous ratification of the treaty with Spain by the Senate, and in the universal satisfaction at that event in all parts of the country, a decisive proof how unfounded have been the suspicions instilled3 in them of a policy in the Atlantic States, and in the different departments of the general government, hostile to their interests in relation to the Mississippi. They have seen two treaties formed which secure to them every thing that they could desire to confirm their prosperity. Will they not henceforth rely for the preservation of these advantages on that Union by which they were procured? Edition: current; Page: [199]Will they not reject those counsellors who would render them alien to their brethren and connect them with aliens?

To the duration and efficacy of your Union, a government extending over the whole is indispensable. No alliances however strict between the parts could be an adequate substitute. These could not fail to be liable to the infractions and interruptions which all alliances in all times have suffered. Sensible of this important truth, you have lately established a Constitution of general government, better calculated than the former for an intimate union, and more adequate to the duration of your common concerns. This government, the offspring of your own choice, uninfluenced and unawed, completely free in its principles, in the distribution of its powers, uniting energy with safety, and containing in itself a provision for its own amendment, is well entitled to your confidence and support. Respect for its authority, compliance with its laws, acquiescence in its measures,1 are duties dictated by the fundamental maxims of true liberty. The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution for the time, and until changed by an explicit and authentic act of the whole people, is sacredly binding upon all. The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey the established government.

All obstructions to the execution of the laws—all Edition: current; Page: [200]combinations and associations under whatever plausible character, with the real design to counteract,1 control,2 or awe the regular3 action of the constituted authorities, are contrary to this fundamental principle, and of the most fatal tendency. They serve to organize faction,4 and to put in the stead of the delegated will of the whole nation the will of a party, often a small5 minority of the whole community; and according to the alternate triumph of different parties to make the public administration reflect the6 schemes and projects of faction rather than the wholesome plans of common councils and deliberations. However combinations or associations of this description may occasionally promote popular ends and purposes, they are likely to produce, in the course of time and things, the most effectual engines by which artful, ambitious, and unprincipled men will be enabled to subvert the power of the people and usurp the reins of government.

Towards the preservation of your government and the permanency of your present happy state, it is not only requisite that you steadily discountenance irregular oppositions to its authority, but that you should be upon your guard against the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect alterations in the forms of the Constitution tending to impair the energy of the system, and so to undermine what cannot be directly overthrown. In all Edition: current; Page: [201]the changes to which you may be invited, remember that time and habit are as necessary to fix the true character of governments as of any other human institutions; that experience is the surest standard by which the real tendency of existing constitutions of government can be tried; that changes upon1 the credit of mere hypothesis and opinion expose you to perpetual change from the successive and endless variety of hypothesis and opinion. And remember also,2 that for the efficacious management of your common interests, in a country so extensive as ours, a government of as much force and strength as is consistent with the perfect security of liberty is indispensable. Liberty itself will find in such a government, with powers properly distributed and arranged, its surest guardian and protector. In my opinion, the real danger in our system is, that the general government, organized as at present, will prove too weak rather than too powerful.

I have already observed the danger to be apprehended from founding our parties on geographical discriminations. Let me now enlarge the view of this point, and caution you in the most solemn manner against the baneful effects of party spirit in general. This spirit unfortunately is inseparable from human nature, and has its root in the strongest passions of the human heart. It exists under different shapes in all governments, but3 in those of the popular form it is always seen in its utmost vigor and rankness, and is their worst enemy. In republics of Edition: current; Page: [202]narrow extent, it is not difficult for those who at any time possess the reins of administration, or even for partial combinations of men, who from birth, riches, and other sources of distinction have an extraordinary influence, by possessing or acquiring the direction of the military force, or by sudden efforts of partisans and followers, to overturn the established order of things, and effect a usurpation. But in republics of large extent, the one or the other is scarcely possible. The powers and opportunities of resistance of a numerous and wide-extended nation defy the successful efforts of the ordinary military force, or of any collections1 which wealth and patronage may call to their aid, especially if there be no city of overbearing force, resources, and influence. In such republics it is perhaps safe to assert that the conflicts of popular faction offer the only avenues to tyranny and usurpation. The domination of one faction over another, stimulated by that spirit of revenge which is apt to be gradually engendered, and which in different ages and countries has produced the greatest enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result predispose the minds of men to seek repose and security in the absolute power of a single man. And the2 leader of a prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of an ambitious and criminal self-aggrandizement.

Without looking forward to such an extremity Edition: current; Page: [203](which, however, ought not to be out of sight), the ordinary and continual mischiefs of the spirit of party make it the interest and the duty of a wise people, to discountenance and repress it.

It serves always to distract the councils and enfeeble the administration of the government. It agitates the community with ill-founded jealousies and false alarms.1 It opens inlets for foreign corruption and influence, which find an easy access through the channels of party passions, and causes the true policy and interest of our own country to be made subservient to the policy and interest of one and another foreign nation, sometimes enslaving our own government to the will of a foreign government.

There is an opinion that parties in free countries are salutary checks upon the administration of the government, and serve to invigorate the spirit of liberty. This, within certain limits, is true; and in governments of a monarchical character or bias, patriotism may look with some favor on the spirit of party. But in those of the popular kind, in those purely elective, it is a spirit not to be fostered or encouraged. From the natural tendency of such governments, it is certain there will always be enough of it for every salutary purpose, and there being constant danger of excess, the effort ought to be, by the force of public opinion, to mitigate and correct it. ’T is a fire which2 cannot be quenched, but demands3 a uniform vigilance to prevent its Edition: current; Page: [204]bursting into a flame—lest it should not only warm but consume.

It is important, likewise, that the habits of thinking of the people should tend to produce caution in their public agents in the several departments of government, to retain each within its proper sphere, and not to permit one to encroach upon another; that every attempt of the kind, from whatever quarter, should meet with the discountenance1 of the community, and that, in every case in which a precedent of encroachment shall have been given, a corrective be sought in [revocation be effected by] a careful attention to the next choice2 of public agents. The spirit of encroachment tends to absorb3 the powers of the several branches and departments into one, and thus to establish, under whatever form, a despotism. A just knowledge of the human heart, of that love of power which predominates in it, is alone sufficient to establish this truth. Experiments, ancient and modern, some in our own country, and under our own eyes, serve to confirm it. If, in the public opinion, the distribution of the constitutional powers be in any instance wrong, or inexpedient, let it be corrected by the authority of the people in a legitimate constitutional course. Let there be no change by usurpation, for though this may be the instrument of good in one instance, it is the ordinary4 instrument of the destruction5 of free government — and the influence of the precedent is always infinitely more pernicious Edition: current; Page: [205]than any thing which it may achieve can be beneficial.

In all those dispositions which promote political happiness,1 religion and morality are essential props. In vain does he2 claim the praise of patriotism, who labors to subvert or undermine these great pillars of human happiness, these firmest foundations of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and cherish them. A volume could not trace all their connections with private and public happiness.

Let it simply be asked, where is the security for property, for reputation, for life, if the sense of moral and religious obligation deserts the oaths which are administered3 in courts of justice? Nor ought we to flatter ourselves that morality can be separated from religion. Concede as much as may be asked to the effect of refined education in minds of peculiar structure, can we believe, can we in prudence suppose, that national morality can be maintained in exclusion of religious principles? Does it not require the aid of a generally received and divinely authoritative religion?

’T is essentially true that virtue or morality is a main and necessary spring of popular or republican governments. The rule, indeed, extends with more or less force to all free governments. Who that is a prudent and sincere friend to them, can look with indifference on the ravages which are making in the foundation of the fabric—religion? The uncommon Edition: current; Page: [206]means which of late have been directed to this fatal end, seem to make it in a particular manner the duty of a retiring chief of a nation to warn his country against tasting of the poisonous draught.

Cultivate, also, industry and frugality. They are auxiliaries of good morals, and great sources of private and national prosperity. Is there not room for regret, that our propensity to expense exceeds the maturity of our country for expense? Is there not more luxury among us, in various classes, than suits the actual period of our national progress? Whatever may be the apology for luxury in a country mature in all the arts which are its ministers and the means of national opulence—can it promote the advantage of a young agricultural country, little advanced in manufactures, and not much advanced in wealth?1

Cherish public credit as a means of strength and security. As one method of preserving it, use it as little as possible. Avoid occasions of expense by cultivating peace—remembering always that the preparation against danger, by timely and provident disbursements, is often a mean of avoiding greater disbursements to repel it. Avoid the accumulation of debt by avoiding occasions of expense, and by vigorous exertions in time of peace to discharge the debts which unavoidable wars may have occasioned, not transferring to posterity the burthen which we ought to bear ourselves. Recollect, that towards the payment of debts there must be revenue, that to Edition: current; Page: [207]have revenue there must be taxes, that it is impossible to devise taxes which are not more or less inconvenient and unpleasant—that they are always a choice of difficulties, that the intrinsic embarrassment which never fails to attend a selection of objects ought to be a motive for a candid construction of the conduct of the government in making it, and that a spirit of acquiescence in those measures for obtaining revenue which the public exigencies dictate, is, in an especial manner, the duty and interest of the citizens of every state.

Cherish good faith and justice towards, and peace and harmony with, all nations. Religion and morality enjoin this conduct, and it cannot be but that true policy equally demands it. It will be worthy of a free, enlightened, and at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people invariably governed by1 those exalted views. Who can doubt that in a long course of time and events the fruits of such a conduct would richly repay any temporary advantages which might be lost by a steady adherence to the plan? Can it be that Providence has not connected the permanent felicity of a nation with its virtue? The experiment is recommended by every sentiment which ennobles human nature. Alas! is it rendered impossible by its vices?

Towards the execution of such a plan,2 nothing is more essential than that 3 antipathies against particular Edition: current; Page: [208]nations and passionate attachments for others should be avoided, and that instead of them we should cultivate just and amicable feelings towards all. ∗ ∗ ∗ That nation which indulges towards another an habitual hatred or an habitual fondness, is in some degree a slave. ∗ ∗ ∗ It is a slave to its animosity, or to its affection—either of which is sufficient to lead it astray from its duty and interest. Antipathy against one nation, which never fails to beget a similar sentiment in the other, disposes each more readily to offer injury and insult to the other, to lay hold of slight causes of umbrage, and to be haughty and untractable when accidental or trifling differences arise. Hence frequent quarrels1 and bitter and obstinate contests. The nation urged by resentment and rage, sometimes compels the government to war, contrary to its own calculations of policy. The government sometimes participates in this propensity, and does through passion what reason would forbid at other times; it makes the animosity of the nations subservient to hostile projects which originate in ambition and other sinister motives. The peace, often, and sometimes the liberty of nations, has been the victim of this cause.

In like manner2 a passionate attachment of one nation to another produces multiplied ills. Sympathy for the favorite nation, promoting 3 the illusion of a supposed common interest, in cases where it does not exist,4 the enmities of the one betray the Edition: current; Page: [209]other into a participation in its quarrels and wars, without adequate inducements or justifications. It leads to the concession of privileges to one nation, and to the denial of them to others, which is apt doubly to injure the nation making the concession by an unnecessary yielding of what ought to have been retained, and by exciting jealousy, ill-will, and retaliation in the party from whom an equal privilege is withheld. And it gives to ambitious, corrupted 1 citizens, who devote themselves to the views of the favorite foreign power, facility in betraying or sacrificing the interests of their own country, even with popularity,2 gilding with 2

As avenues to foreign influence in innumerable ways, such attachments are peculiarly alarming to the enlightened independent patriot. How many opportunities do they afford to intrigue with domestic factions, to practise with success the arts of seduction, to mislead 4 the public opinion—to influence or awe the public councils? Such an attachment of a small or weak towards a great and powerful nation, destines the former to revolve round the latter as its satellite.

Against the mischiefs of foreign influence all the jealousy of a free people ought to be constantly 5 exerted6; but the jealousy of it to be useful must Edition: current; Page: [210]be impartial, else it becomes an instrument of the very influence to be avoided, instead of a defence1 against it.

Excessive partiality for one foreign nation, and excessive dislike of another, leads to see danger only on one side, and serves to veil 2 the arts of influence on the other. Real patriots, who resist the intrigues of the favorite, become suspected and odious. Its tools and dupes usurp the applause and confidence of the people to betray their interests.

The great rule of conduct for us in regard to foreign nations ought to be to have as little political connection with them as possible. So far as we have already formed engagements, let them be fulfilled with circumspection, indeed, but with perfect good faith; here let it stop.

Europe has a set of primary interests, which have none or a very remote relation to us. Hence she must be involved in frequent contests, the causes of which will be essentially foreign to us. Hence therefore, it must necessarily be unwise on our part to implicate ourselves by an artificial connection in the ordinary vicissitudes of European politics—in the combination and collisions of her friendships or enmities.

Our detached and distant situation invites us to a different course, and enables us to pursue it. If we remain a united people, under an efficient government, the period is not distant when we may defy material injury from external annoyance—when we may take such an attitude as will cause the neutrality Edition: current; Page: [211]we shall at any time resolve to observe, to be violated with caution—when it will be the interest of belligerent nations, under the impossibility of making acquisitions upon us, to be very careful how either forced us to throw our weight into the opposite scale — when we may choose peace or war, as our interest, guided by justice, shall dictate.

Why should we forego the advantages of so felicitous a situation? Why quit our own ground to stand upon foreign ground? Why, by interweaving our destiny with any part of Europe, should we entangle our prosperity and peace in the nets of European ambition, rivalship, interest, or caprice?

Permanent alliance, intimate connection with any part of the foreign world is to be avoided; so far, I mean, as we are now at liberty to do it; for let me never be understood as patronizing infidelity to preexisting engagements. These must be observed in their true and genuine sense.1

Harmony, liberal intercourse, and commerce with all nations are recommended by justice, humanity, and interest. But even our commercial policy should hold an equal hand, neither seeking nor granting exclusive favors or preferences—consulting the natural course of things—diffusing and diversifying by gentle means the streams of commerce, but forcing nothing—establishing with powers so disposed Edition: current; Page: [212]1 temporary 2 rules of intercourse, the best that present circumstances and mutual opinion of interest will permit, but temporary, and liable to be abandoned or varied, as time, experience, and future circumstances may dictate—remembering 3 that it is folly in one nation to expect disinterested favor in another, that to accept 4 is to part with a portion of its independence, and that it may find itself in the condition of having given equivalents for nominal favors, and of being reproached with ingratitude in the bargain. There can be no greater error in national policy than to desire, expect, or calculate upon real favors. ’T is an illusion that experience must cure, that a just pride ought to discard.

In offering to you, my countrymen, these counsels of an old and affectionate friend—counsels suggested by laborious reflection, and matured by a various experience, I dare not hope that they will make the strong and lasting impressions I wish—that they will control the current of the passions, or prevent our nation from running the course which has hitherto marked the destiny of all nations.

But 5 if they may even produce partial benefit, some occasional good ∗ ∗ ∗ that they sometimes recur to moderate the violence of party spirit, to warn against the evils of foreign intrigue, to guard against the impositions of pretended patriotism, the having offered them must always afford me a precious consolation.

How far in the execution of my present office I have been guided by the principles which have been recommended,1 the public records and the external evidences of my conduct must witness. My conscience assures me that I have at least believed myself to be guided by them.

In reference to the present war of Europe, my proclamation of the 22d April, 1793, is the key to my plan, sanctioned by your approving voice, and that of your Representatives in Congress—the spirit of that measure has continually governed me—un-influenced and unawed by the attempts of any of the warring powers, their agents, or partisans, to deter or divert from it.

After deliberate consideration, and the best lights I could obtain (and from men who did not agree in their views of the origin, progress, and nature of that war), I was satisfied that our country, under all the circumstances of the case, had a right and was bound in propriety and interest to take a neutral position. And having taken it, I determined as 2 should depend on me to maintain it steadily and firmly.3

Though in reviewing the incidents of my administration I am unconscious of intentional error, I am yet too sensible of my own deficiencies, not to think it possible 4 that I have committed many errors; I deprecate the evils to which they may tend, and fervently implore the Almighty to avert or mitigate Edition: current; Page: [214]them. I shall carry with me, nevertheless, the hope that my motives will continue to be viewed by my country with indulgence, and that after forty-five years of my life, devoted with an upright zeal to the public service, the faults of inadequate abilities will be consigned to oblivion, as myself must soon be to the mansions of rest.

Neither ambition nor interest has been the impelling cause of my actions. I never designedly misused any power confided in me. The fortune with which I came into office, is not bettered otherwise than by that improvement in the value of property which the natural progress and peculiar prosperity of our country have produced. I retire 1 with a pure heart, 2 with undefiled hands, and with ardent vows for the happiness of a country, the native soil of myself and progenitors for four generations.

PART OF WASHINGTON’S SPEECH TO CONGRESS 3

That, among the objects of labor and industry, agriculture, considered with reference either to individual or national welfare, is first in importance, may safely be affirmed, without derogating from the just and real value of any other branch. It is, indeed, Edition: current; Page: [215]the best basis of the prosperity of every other. In proportion as nations progress in population and other circumstances of maturity, this truth forces itself more and more upon the conviction of rulers, and makes the cultivation of the soil more and more an object of public patronage and care. Institutions for promoting it sooner or later grow up, supported by the public purse—and the full fruits of them, when judiciously conceived and directed, have fully justified the undertaking.

Among these, none have been found of greater utility than Boards, composed of proper characters, charged with collecting and communicating information, and enabled to stimulate enterprise and experiment by premiums and honorary rewards. These have been found very cheap instruments of immense benefits. They serve to excite a general spirit of discovery and improvement, to stimulate invention, to excite new and useful experiments—and accumulating in one centre the skill and improvement of every part of the nation, they spread it thence over the whole nation, at the same time promoting new discovery, and diffusing generally the knowledge of all the discoveries which are made.

In the United States, hitherto, no such institution has been essayed, though perhaps no country has stronger motives to it.

Agriculture among us is certainly in a very imperfect state. In much of those parts where there have been early settlements, the soil, impoverished by an unskilful tillage, yields but a scanty reward for the labor bestowed upon it, and leaves its possessors Edition: current; Page: [216]under strong temptation to abandon it, and emigrate to distant regions, more fertile, because they are newer, and have not yet been exhausted by an unskilful use. This is every way an evil. The undue dislocation of our population from this cause promotes neither the strength, the opulence, nor the happiness of our country. It strongly admonishes our national councils to apply, as far as may be practical, by natural and salutary means, an adequate remedy. Nothing appears to be more unexceptionable, and likely to be more efficacious, than the institution of a Board of Agriculture, with the views I have mentioned, and with a moderate fund towards executing them. After mature reflection, I am persuaded it is difficult to render our country a more precious and general service, than by such an institution.

I will, however, observe, that if it be thought expedient, the objects of the Board may be still more comprehensive. It may embrace the encouragement of the mechanic and manufacturing arts by means analogous to those for the improvement of agriculture, and with an eye to the introduction, from abroad, of useful machinery, etc. Or there may be separate Boards, one charged with one object, the other with the other.

I have, heretofore, suggested the expediency of establishing a National University, and a Military Academy. The vast utility of both these measures presses so seriously and so constantly upon my mind, that I cannot forbear with earnestness to repeat the recommendation.

The assembly to which I address myself will not doubt that the extension of science and knowledge is an object primarily interesting to our national welfare. To effect this is most naturally the care of the particular local jurisdictions into which our country is subdivided, as far as regards those branches of instruction which ought to be universally diffused, and it gives pleasure to observe that new progress is continually making in the means employed for this end. But, can it be doubted that the general government would with peculiar propriety occupy itself in affording nutriment to those higher branches of science, which, though not within the reach of general acquisition, are in their consequences and relations productive of general advantage? Or can it be doubted that this great object would be materially advanced by a university erected on that broad basis to which the national resources are most adequate, and so liberally endowed, as to command the ablest professors in the several branches of liberal knowledge? It is true, and to the honor of our country, that it offers many colleges and academies, highly respectable and useful, but the funds upon which they are established are too narrow to permit any of them to be an adequate substitute for such an institution as is contemplated, and to which they would be excellent auxiliaries. Amongst the motives to such an institution, the assimilation of the principles, opinions, manners, and habits of our countrymen, by drawing from all quarters our youth to participate in a common education, well deserves the attention of government. To render the people Edition: current; Page: [218]of this country as homogeneous as possible, must tend as much as any other circumstance to the permanency of their union and prosperity.

The eligibleness of a military academy depends on that evident maxim of policy which requires every nation to be prepared for war while cultivating peace, and warns it against suffering the military spirit and military knowledge wholly to decay. However particular instances, superficially viewed, may seem exceptions, it will not be doubted by any who have attentively considered the subject, that the military art is of a complicated and comprehensive nature, that it demands much previous study as well as practice, and that the possession of it in its most improved state is always of vast importance to the security of a nation. It ought, therefore, to be a principal care of every government, however pacific its general policy, to preserve and cultivate—indeed, in proportion as the policy of a country is pacific, and it is little liable to be called to practise the rules of the military art, does it become the duty of the government to take care, by proper institutions, that it be not lost. A military academy, instituted on proper principles, would serve to secure to our country, though within a narrow sphere, a solid fund of military information, which would always be ready for national emergencies, and would facilitate the diffusion of military knowledge as those emergencies might require.

A systematic plan for the creation of a moderate navy appears to me recommended by very weighty considerations. An active external commerce demands Edition: current; Page: [219]a naval power to protect it, besides the dangers from wars, in which a maritime state is a party. It is a truth, which our own experience has confirmed, that the most equitable and sincere neutrality is not sufficient to exempt a state from the depredations of other nations at war with each other. It is essential to induce them to respect that neutrality, that there shall be an organized force ready to vindicate the national flag. This may even prevent the necessity of going into war by discouraging from those insults and infractions of right, which sometimes proceed to an extreme that leaves no alternative. The United States abound in materials. Their commerce, fast increasing, must proportionately augment the number of their seamen, and give us rapidly the means of a naval power, respectable, if not great. Our relative situation, likewise, for obvious reasons, would render a moderate force very influential, more so, perhaps, than a much greater in the hands of any other power. It is submitted as well deserving consideration, whether it will not be prudent immediately and gradually to provide and lay up magazines of ship-timber, and to build and equip annually one or more ships of force, as the development of resources shall render convenient and practicable, so that a future war in Europe, if we escape the present storm, may not find our commerce in the defenceless situation in which the present found it.

There is a subject which has dwelt long and much upon my mind, which I cannot omit this opportunity of suggesting. It is the compensation to our public Edition: current; Page: [220]officers, especially those in the most important stations. Every man acquainted with the expense, even of the most frugal plan of living in our great cities, must be sensible of their inadequateness. The impolicy of such defective provisions seems not to have been sufficiently weighed.

No plan of governing is well founded, which does not regard man as a compound of selfish and virtuous passions. To expect him to be wholly guided by the latter, would be as great an error as to suppose him wholly destitute of them. Hence the necessity of adequate rewards for those services of which the public stand in need. Without them, the affairs of a nation are likely to get sooner or later into incompetent or unfaithful hands. If their own private wealth is to supply in the candidates for public office the deficiency of public liberality, then the sphere of those who can be candidates, especially in a country like ours, is much narrowed, and the chance of a choice of able as well as upright men much lessened. Besides that, it would be repugnant to the first principles of our government to exclude men, from the public trusts, because their talents and virtues, however conspicuous, are unaccompanied by wealth. If the rewards of the government are scanty, those who have talents without wealth, and are too virtuous to abuse their stations, cannot accept public offices without a sacrifice of interest; which, in ordinary times, may hardly be justified by their duty to themselves and their families. If they have talents without virtue, they may, indeed, accept offices to make a dishonest and improper use of them. The Edition: current; Page: [221]tendency then is to transfer the management of public affairs to wealthy but incapable hands, or to hands which, if capable, are as destitute of integrity as of wealth. For a time, particular circumstances may prevent such a course of things, and hitherto the inference has not been verified in our experience. But it is not the less probable, that time will prove it to be well founded. In some governments men have many allurements to office, exclusive of pecuniary rewards—but from the nature of our government, pecuniary reward is the only aliment to the interested passions which public men who are not vicious can expect. If, then, it be essential to the prosperous course of every government, that it shall be able to command the services of its most able and most virtuous citizens of every class, it follows, that the compensations which our government allows ought to be revised and materially increased. The character and success of republican government appear absolutely to depend on this policy.

Congress have repeatedly directed their attention to the encouragement of manufactures, and have no doubt promoted them in several branches. The object is of too much importance not to assure a continuance of their efforts in every way which shall appear proper and conducive to the end. But in the present state of our country, we cannot expect that our progress, in some essential branches, will be as expeditious as the public welfare demands,—particularly in reference to security and defence in time of war. This reflection is the less pleasing when it is remembered how large a proportion of our supply Edition: current; Page: [222]the course of our trade derives from a single nation. It appears very desirable, that at least, with a view to security and defence, some measures more efficacious than have heretofore been adopted should be taken. As a general rule, manufactories carried on upon public account are to be avoided. But every general rule may admit of exceptions. Where the state of things in our country leaves little expectation that certain branches of manufacture will, for a great length of time, be sufficiently cultivated—when these are of a nature to be essential to the furnishing and equipping of the troops and ships of war of which we stand in need—are not establishments on the public account, to the extent of the public demand for supply, recommended by very strong considerations of national policy? Ought our country to be dependent in such cases upon foreign supply, precarious because liable to be interrupted? If the necessary supplies1 should be procured in this mode, at great expense—in time of peace—will not the security and independence arising from it very amply compensate? Institutions of this kind commensurate only with our peace establishments, will in time of war be easily extended in proportion to the public exigencies, and they may even perhaps be rendered contributary to the supply of our citizens at large, so as greatly to mitigate the privation arising from the interruption of trade.

The idea at least is worthy of the most serious Edition: current; Page: [223]consideration. If adopted, the plan ought, of course, to exclude all those branches which may be considered as already established in our country, and to which the efforts of individuals appear already, or likely to be, speedily adequate.

A reinforcement of the existing provisions for discharging our public debt was mentioned in my address at the opening of the last session. Congress took some preliminary steps, the maturing of which will no doubt engage their zealous attention during the present. I will only add that it will afford me a heartfelt satisfaction to concur in such auxiliary measures as will ascertain to our country the prospect of a speedy extinguishment of the debt. Posterity may have cause to regret if, from any motive, intervals of tranquillity are left unemployed for accelerating this valuable end.

ADDRESS TO THE ELECTORS OF THE STATE OF NEW YORK

We lately addressed you on the subject of the ensuing election for Governor and Lieutenant-Governor—recommending to your support Stephen Van Rensselaer and James Watson. Since that, we have seen the address of our opponents, urging your preference of George Clinton and Jeremiah Van Rensselaer.

The whole tenor of our address carries with it the evidence of a disposition to be temperate and liberal; Edition: current; Page: [224] to avoid giving occasion to mutual recrimination. It would have been agreeable to us to have seen a like disposition in our adversaries; but we think it cannot be denied that their address manifests a different one. It arraigns the principles of the Federalists with extreme acrimony, and by the allusion to Great Britain, in the preposterous figure of the mantle, attributes to them a principle of action, which every signer of the address knows to have no existence, and which for its falsehood and malice merits indignation and disdain.

So violent an attack upon our principles justifies and calls for an exhibition of those of our opponents. To your good sense, to your love of country, to your regard for the welfare of yourself and families, the comment is submitted.

The pernicious spirit which has actuated many of the leaders of the party denominated anti-federal, from the moment when our national Constitution was first proposed down to the present period, has not ceased to display itself in a variety of disgusting forms. In proportion to the prospect of success it has increased in temerity. Emboldened by a momentary triumph in the choice of our national Chief Magistrate, it seems now to have laid aside all reserve, and begins to avow projects of disorganization, with the sanction of the most respectable names of the party, which before were merely the anonymous ravings of incendiary newspapers.

This precipitation in throwing aside the mask will, we trust, be productive of happy effects. It will serve to show that the mischievous designs ascribed Edition: current; Page: [225] to the party have not been the effusions of malevolence, the inventions of political rivalship, or the visionary forebodings of an over-anxious zeal; but that they have been just and correct inferences from an accurate estimate of characters and principles. It will serve to show that moderate men, who have seen in our political struggles nothing more than a competition for power and place, have been deceived; that in reality the foundations of society, the essential interests of our nation, the dearest concerns of individuals, are staked upon the eventful contest. And by promoting this important discovery, it may be expected to rally the virtuous and the prudent of every description round a common standard; to endeavor, by joint efforts, to oppose mounds to that destructive torrent, which in its distant murmuring seemed harmless, but in the portentous roaring of its nearer approach, menaces our country with all the horrors of revolutionary frenzy.

To what end, fellow-citizens, has your attention been carried across the Atlantic, to the Revolution of France, and to that fatal war of which it has been the source? To what end are you told, that this is the most interesting conflict man ever witnessed—that it is a war of principles—a war between equal and unequal rights—between republicanism and monarchy—between liberty and tyranny.

What is there in that terrific picture which you are to admire or imitate? Is it the subversion of the throne of the Bourbons, to make way for the throne of the Bonapartes? Is it the undistinguishing massacre in prisons and dungeons, of men, women, and Edition: current; Page: [226] children? Is it the sanguinary justice of revolutionary tribunals, or the awful terrors of a guillotine? Is it the rapid succession of revolution upon revolution, erecting the transient power of one set of men upon the tombs of another? Is it the assassinations which have been perpetrated, or the new ones which are projected? Is it the open profession of impiety in the public assemblies, or the ridiculous worship of a Goddess of Reason, or the still continued substitution of decades to the Christian Sabbath? Is it the destruction of commerce, the ruin of manufactures, the oppression of agriculture? Or, is it the pomp of war, the dazzling glare of splendid victories, the bloodstained fields of Europe, the smoking cinders of desolated cities, the afflicting spectacle of millions precipitated from plenty and comfort to beggary and misery? If it be none of these things, what is it?

Perhaps it is the existing government of France, of which your admiration is solicited?

Here, fellow-citizens, let us on our part invite you to a solemn pause. Mark, we beesech you, carefully mark, in this result, the fruit of those extravagant and noxious principles which it is desired to transplant into our happy soil.

Behold a consul for ten years elected, not by the people, but by a conservatory Senate, self-created and self-continued for life; a magistrate who, to the plenitude of executive authority, adds the peculiar and vast prerogative of an exclusive right to originate every law of the republic.

Behold a Legislature elected, not by the people, but Edition: current; Page: [227] by the same conservatory Senate, one branch for fourteen, the other for ten years; one branch with a right to debate the law proposed by the consul, but not to propose; another with right neither to debate nor propose, but merely to assent or dissent, leaving to the people nothing more than the phantom of representation, or the useless privilege of designating one tenth of their whole mass as candidates indiscriminately for the officers of the State, according to the option of the conservatory Senate.

Behold this magic lantern of republicanism; the odious form of real despotism; garnished and defended by the bayonets of more than five hundred thousand men in disciplined array.

Do you desire an illustration of the practical effect of this despotic system, read it in the last advices from France. Read it in the exercise of a power by the chief consul, recognized to belong to him by the conservatory Senate, to banish indefinitely the citizens of France without trial, without the formality of a legislative act. Then say, where can you find a more hideous despotism? Or, what ought ye to think of those men who dare to recommend to you as the Bible of your political creed, the principles of a revolution, which in its commencement, in its progress, in its termination (if termination it can have, before it has overthrown the civilized world), is only fitted to serve as a beacon to warn you to shun the gulfs, the quicksands, and the rocks of those enormous principles?

Surely ye will applaud neither the wisdom nor the patriotism of men, who can wish you to exchange Edition: current; Page: [228] the fair fabric of republicanism which you now enjoy, modelled and decorated by the hand of federalism, for that tremendous form of despotism which has sprung up amidst the volcanic eruptions of principles at war with all past and present experience, at war with the nature of man.

Or, was the allusion to France and her Revolution, to the war of principles of which you have heard, intended to familiarize your ears to a war of arms, as one of the blessings of the new order of things? Facts, which cannot be mistaken, demonstrate that in the early period of the French Revolution, it was the plan of our opponents to engage us in the war as associates of France. But at this late hour, when even the pretence of supporting the cause of liberty has vanished, when acquisition and aggrandizement have manifestly become the only, the exclusive objects of this war, it was surely to have been expected that we should have been left to retain the advantage of a pacific policy.

If there are men who hope to gratify their ambition, their avarice, or their vengeance, by adding this country to the league of northern powers, in the fantastic purpose of an extension of neutral rights, the great body of the people will hardly, we imagine, see in this project benefits sufficiently solid and durable to counterbalance the certain sacrifices of present advantages, and the certain sufferings of positive evils inseparable from a state of war.

Let us now attend to some other parts of this extraordinary address.

We are told that there are many in the bosom of Edition: current; Page: [229] our country who have long aimed at unequal privileges, and who have too well succeeded, by arrogating to themselves the right to be considered as the only friends of the Constitution, the guardians of order and religion, by the lavish abuse of their opponents, and by representing opposition to particular plans of administration as hostility to the government itself.

What is meant by this aiming at unequal privileges?

If we are to judge of the end by the means stated to have been used, the charge amounts to this, that the Federalists have sought to retain in their own hands, by the suffrages of the people, the exercise of the powers of the government.

Admitting the charge to be true, have not the Anti-Federalists pursued exactly the same course? Have they not labored incessantly to monopolize the power of our national and State governments? Whenever they have had it, have they not strained every nerve to keep it? Why is it a greater crime in the Federalists than in their rivals to aim at an ascendant in the councils of our country?

It is true, as alleged, that the Federalists insisted upon their superior claim to be considered as the friends of our Constitution, and have imputed to their adversaries improper and dangerous designs; but it is equally true, that these have asserted a similar claim, have advanced the pretension of being the only republicans and patriots, have charged their opponents with being in league with Great Britain to establish monarchy, have imputed to men of Edition: current; Page: [230] unblemished characters for probity in high public offices, corruption and peculation, and have persisted in the foul charge after its falsity had been ascertained by solemn public inquiry; and in their wanton and distempered rage for calumny have not scrupled to brand even a Washington as a tyrant, a conspirator, a peculator.

It is also true, that the Federalists have represented the leaders of the other party as hostile to our national Constitution; but it is not true that it was because they have been unfriendly to particular plans of its administration.

It is because, as a party, and with few exceptions, they were violent opposers of the adoption of the Constitution itself; predicted from it every possible evil, and painted it in the blackest colors, as a monster of political deformity.

It is because the amendments subsequently made, meeting scarcely any of the important objections which were urged, leaving the structure of the government, and the mass and distribution of its powers where they were, are too insignificant to be with any sensible man a reason for being reconciled to the system if he thought it originally bad.

It is because they have opposed not particular plans of the administration, but the general course of it, and almost all the measures of material consequence, and this, too, not under one man or set of men, but under all the successions of men.

It is because, as there have been no alterations of the Constitution sufficient to change the opinion of its merits, and as the practice under it has met with Edition: current; Page: [231] the severest reprobation of the party, there is no circumstance from which to infer that they can really have been reconciled to it.

It is because the newspapers under their direction have from time to time continued to decry the Constitution itself.

It is because they have openly avowed their attachment to the excessive principles of the French Revolution, and to leading features in the crude forms of government which have appeared only to disappear; utterly inconsistent with the sober maxims upon which our federal edifice was reared, and with essential parts in its structure. As specimens of this, it is sufficient to observe that they have approved the unity of the legislative power in one branch, and have been loud in their praises of an executive directory—that five-headed monster of faction and anarchy.

It is because they have repeatedly shown, and in their present address again show, that they contemplate innovations in our public affairs, which, without doubt, would disgrace and prostrate the government.

On these various and strong grounds have the Federalists imputed to their opponents disaffection to the national Constitution. As yet they have no reason to retract the charge. To future proofs of repentance and reconciliation must an exculpation be referred. The Anti-Federalists have acquired the administration of the national government. Let them show by a wise and virtuous management that they are its friends, and they shall then have all the Edition: current; Page: [232] credit of so happy a reformation; but till then their assertions cannot be received as proofs.

And if the views which the signers of the address now boldly avow should unfortunately be those which should regulate the future administration of the government, the tokens of their amity would be as pernicious as could possibly be the tokens of their most deadly hatred.

They enumerate, as the crimes of the Federalists, the funding system, the national debt, the taxes which constitute the public revenue, the British treaty, the federal city, the mint, a mausoleum, the sedition law, and a standing army; and they tell us in plain terms that these are “abuses no longer to be suffered.”

Let it be observed in the first place that these crying sins of our government are not to be placed exclusively to the account of the Federalists; that for some of them the other party are chiefly responsible, and that in others they have participated.

As to the federal city, it is not to be denied that this was a favorite of the illustrious Washington. But it is no less certain that it was warmly patronized by Mr. Jefferson, Mr. Madison, and the great majority of the members who at the time composed the opposition in Congress, and who are now influential in the anti-federal party. It is also certain that the measure has never been a favorite of a majority of the federal party.

As to the mint, it was not at all a measure of party. With slight diversities of opinion about some of the details, it was approved by both parties.

As to the mausoleum, it has not taken place at all. The bill for erecting it was lost in the Senate, where the Federalists have a decided majority; and, instead of it, an appropriation of fifty thousand dollars was made for erecting an equestrian statue, agreeably to a resolution of Congress passed under the old Confederation. Is there an American who would refuse this memorial of gratitude to the man who is the boast of his country, the honor of his age?

As to the funding system, it was thus far a measure of both parties, that both agreed there should be a funding system. In the formation of it the chief points of difference were, 1st, a discrimination between original holders and transferees of the public debt; 2d, a provision for the general debt of the Union, leaving to each State to make separate provision for its particular debt.

Happily for our country, by the rejection of the first, which would have been an express violation of contracts, the faith of the government was preserved, its credit maintained and established.

Happily for our country, by not pursuing the last, unity, simplicity, and energy were secured to our fiscal system. The entanglements of fourteen conflicting systems of finance were avoided. The same mass of debt was included in one general provision instead of being referred to fourteen separate provisions, more comprehensive justice was done, the States which had made extraordinary exertions for the support of the common cause were relieved from the unequal pressure of burthens which must have crushed them, and the people were saved from the Edition: current; Page: [234] immense difference of expense between a collection of the necessary revenues by one set of officers or by fourteen different sets.

The truth, then, fellow-citizens, is this:—Both parties agreed that there should be a funding system; and the particular plan which prevailed was most agreeable to the contract of the government, most conducive to general and equal justice among the States and individuals, to order and efficiency in the finances, to economy in the collection.

Ought not these ideas to have governed? What is meant by holding up the funding system as an abuse no longer to be tolerated?

What is this funding system? It is nothing more nor less than the pledging of adequate funds or revenues for paying the interest and for the gradual redemption of the principal of that very debt which was the sacred price of independence. The country being unable to pay off the principal, what better could have been done?

It is recollected, that long before our revolution most of the States had their funding systems. They emitted their paper money, which is only another phrase for certificates of debt; and they pledged funds for its redemption, which is but another phrase for funding it. What, then, is there so terrible in the idea of a funding system? Those who may have been accustomed under some of the State governments to gamble in the floating paper, and when they had monopolized a good quantity of it among themselves at low prices, to make partial legislative provisions for the payment of the particular kinds, Edition: current; Page: [235] would very naturally be displeased with a fixed and permanent system, which would give to the evidences of debt a stable value, and lop off the opportunities for gambling speculations; but men who are sensible of the pernicious tendency of such a state of things, will rejoice in a plan which was designed to produce, and has produced, a contrary result.

What have been the effects of this system? An extension of commerce and manufactures, the rapid growth of our cities and towns, the consequent prosperity of agriculture, and the advancement of the farming interest. All this was effected by giving life and activity to a capital in the public obligations, which was before dead, and by converting it into a powerful instrument of mercantile and other industrious enterprise.

We make these assertions boldly, because the fact is exemplified by experience, and is obvious to all discerning men. Our opponents in their hearts know it to be so.

As to the public debt; the great mass of it was not created by the Federalists peculiarly. It was contracted by all who were engaged in our councils during our revolutionary war. The Federalists have only had a principal agency in providing for it. No man can impute that to them as a crime who is not ready to avow the fraudulent and base doctrine, that it is wiser and better to cheat than to pay the creditors of a nation.

It is a fact certain and notorious, that under the administration of the first Secretary of the Treasury Edition: current; Page: [236] ample provision was made, not only for paying the interest of this debt, but for extinguishing the principal in a moderate term of years.

But it is alleged that this debt has been increased, and is increasing.

On this point we know that malcontent individuals make the assertion and exhibit statements intended to prove it. But this we also know, that a committee of the House of Representatives, particularly charged with the inquiry, have stated and reported the contrary; and we think that more credit is due to their representation than to that of individuals, especially as nothing is easier than in a matter of this sort to make plausible statements, which, though utterly false, cannot be detected except by those who possess all the materials of a complex calculation, who are qualified, and who will take the pains to make it.

We know likewise that extraordinary events have compelled our government to extraordinary expenditures—an Indian war, for some time disastrous, but terminated on principles likely to give durable tranquillity to our frontier; two insurrections fomented by the opposition to the government; the hostilities of a foreign power, encouraged by the undissembled sympathies of the same opposition, which obliged the government to arm for defence and security. These things have retarded the success of the efficacious measures which have been adopted for the discharge of our debt; measures which, with a peaceable and orderly course of things, accelerated by the rapid growth of our country, are sufficient in a few years, Edition: current; Page: [237] without any new expedient, to exonerate it from the whole of its present debt.

These, fellow-citizens, are serious truths, well known to most of our opponents, but which they shamefully endeavor to disfigure and disguise.

As to taxes, they are evidently inseparable from government. It is impossible without them to pay the debts of the nation, to protect it from foreign danger, or to secure individuals from lawless violence and rapine. It is always easy to assert that they are heavier than they ought to be, always difficult to refute the assertion, which cannot ever be attempted without a critical review of the whole course of public measures. This gives an immense advantage to those who make a trade of complaint and censure.

But, fellow-citizens, it is in our power to state to you in relation to this subject, and upon good information, one material fact.

There is, perhaps, no item in the catalogue of our taxes which has been more unpopular than that which is called the direct tax.

This tax may emphatically be placed to the account of the opposite party; it was always insisted upon by them as preferable to taxes of the indirect kind. And it is a truth capable of full proof, that Mr. Madison, second in the confidence of the antifederal party, the confidential friend of Mr. Jefferson, and now Secretary of State by his nomination, was the proposer of this tax. This was done in a committee of the last House of Representatives, of which he was a member, was approved by that committee, and referred to the late Secretary of the Edition: current; Page: [238] Treasury, Mr. Wolcott, with instructions to prepare a plan as to the mode. Let it be added that it was a principle of the federal party never to resort to this species of tax but in time of war or hostility with a foreign power; that it was in such a time when they did resort to it, and that the occasion ceasing by the prospect of an accommodation, it has been resolved by them not to renew the tax.

As to the British treaty, it is sufficient to remind you of the extravagant predictions of evil persons of its ratification, and to ask you in what have they been realized? You have seen our peace preserved, you have seen our western posts surrendered, our commerce proceed with success in its wonted channels, and our agriculture flourish to the extent of every reasonable wish; and you have been witnesses to none of the mischiefs which were foretold. You will, then, conclude with us that the clamors against this treaty are the mere ebullitions of ignorance, of prejudice, and of faction.

As to the sedition law, we refer you to the debates in Congress for the motives and nature of it. More would prolong too much this reply, already longer than we could wish.

We will barely say that the most essential object of this act is to declare the courts of the United States competent to the cognizance of those slanders against the principal officers and departments of the Federal Government, which at common law are punishable as libels, with the liberal and important mitigation of allowing the truth of an accusation to be given in exoneration of the accuser. What do you Edition: current; Page: [239] see in this to merit the execrations which have been bestowed on the measure?

As to a standing army, there is none, except four small regiments of infantry, insufficient for the service of guards in the numerous posts of our immense frontiers stretching from Niagara to the borders of Florida, and two regiments of artillery, which occupy in the same capacity the numerous fortifications along our widely extended sea-coast. What is there in this to affright or disgust? If these corps are to be abolished, substitutes must be found in the militia. If the experiment shall be made, it is to foretell that it will prove not a measure of economy, but a heavy bill of additional cost, and like all other visionary schemes will be productive only of repentance and a return to a plan injudiciously renounced.

This exposition of the measures which have been represented to you as abuses no longer to be suffered (mark the strength of the phrase) will, we trust, serve to satisfy you of the violence and absurdity of those crude notions which govern our opposers, if we believe them to be sincere. Happily for our country, however, there has just beamed a ray of hope that these violent and absurd notions will not form the rule of conduct of the person whom the party have recently elevated to the head of our national affairs.

In the speech of the new President upon assuming the exercise of his office, we find among the articles of his creed,—“the honest payment of our debt, and sacred preservation of the public faith.”

The funding system, the national debt, the British treaty, are not therefore in his conception abuses, which, if no longer to be tolerated, would be of course to be abolished.

But we think ourselves warranted to derive from the same source, a condemnation still more extensive of the opinions of our adversaries. The speech characterizes our present government “as a republican in the full tide of successful experiment.” Success in the experiment of a government, is success in the practice of it, and this is but another phrase for an administration, in the main, wise and good. That administration has been hitherto in the hands of the Federalists.

Here then, fellow-citizens, is an open and solemn protest against the principles and opinions of our opponents, from a quarter which as yet they dare not arraign.

In referring to this speech, we think it proper to make a public declaration of our approbation of its contents. We view it as virtually a candid retraction of past misapprehensions, and a pledge to the community, that the new President will not lend himself to dangerous innovations, but in essential points will tread in the steps of his predecessors.

In doing this, he prudently anticipates the loss of a great portion of that favor which has elevated him to his present station. Doubtless, it is a just foresight. Adhering to the professions he has made, it will not be long before the body of the Anti-Federalists will raise their croaking and ill-omened voices against him. But in the talents, the patriotism, and Edition: current; Page: [241] the firmness of the Federalists, he will find more than an equivalent for all that he shall lose.

All those of whatever party who may desire to support the moderate views exhibited in the presidential speech, will unite against the violent projects of the men who have addressed you in favor of Mr. Clinton, and against a candidate who, in all past experience, has evinced that he is likely to be a fit instrument of these projects.

Fellow-citizens, we beseech you to consult your experience and not listen to tales of evil, which exist only in the language, not even in the imaginations, of those who deal them out. This experience will tell you, that our opposers have been uniformly mistaken in their views of our Constitution, of its administration, in all the judgments which they have pronounced of our public affairs; and, consequently, that they are unfaithful or incapable advisers. It will teach you that you have eminently prospered under the system of public measures pursued and supported by the Federalists. In vain are you told that you owe your prosperity to your own industry, and to the blessings of Providence. To the latter, doubtless, you are primarily indebted. You owe to it, among other benefits, the Constitution you enjoy, and the wise administration of it by virtuous men as its instruments. You are likewise indebted to your own industry. But has not your industry found aliment and incitement in the salutary operation of your government—in the preservation of order at home—in the cultivation of peace abroad—in the invigoration of confidence in pecuniary dealings—in Edition: current; Page: [242] the increased energies of credit and commerce—in the extension of enterprise, ever incident to a good government well administered? Remember what your situation was immediately before the establishment of the present Constitution? Were you then deficient in industry more than now? If not, why were you not equally prosperous? Plainly, because your industry had not at that time the vivifying influences of an efficient and well-conducted government.

There is one more particular in the address which we cannot pass over in silence, though, to avoid being tedious, we must do little more than mention it. It is a comparison between the administration of the former and present governors of this State, on the point of economy, accompanied with the observation, that the former had shown an anxious solicitude to exempt you from taxation.

The answer to this is, that under the administration of Mr. Clinton the State possessed large resources, which were the substitute for taxation—the duties of impost, the proceeds of confiscated property, and immense tracts of new land, which, if they had been providently disposed of, would have long deferred the necessity of taxation. That this was not done, Mr. Clinton, as one of the commissioners of the land office, is in a principal degree responsible.

Under the administration of Mr. Jay, the natural increase of the State has unavoidably augmented the expense of the government, and the appropriations of large sums, in most of which all parties have concurred, to a variety of objects of public utility and necessity, have so far diminished the funds of the Edition: current; Page: [243] State as in the opinion of all parties to have required a resort to taxes.

The principal of these objects have been: 1. The erection of fortifications, and the purchase of cannon, arms, and other warlike implements for the purpose of defence. 2. The building and maintenance of the State prisons, in the laudable experiment of an amelioration of our penal code. 3. The purchase from Indians of lands which, though resold, have not yet been productive of revenue. 4. The payment of dower to the widows of persons whose estates have been confiscated. 5. Large appropriations for the benefit of common schools, roads, and bridges. 6. The erection of an arsenal and public offices in the city of Albany.

Hence it is evident that the difference which has been remarked to you in respect to taxation, has proceeded from a difference of circumstances, not from the superior providence or economy of the former, or from the improvidence or profusion of the existing administration. Our opponents may be challenged to bring home to Mr. Jay the proofs of prodigality, and they may be told that the purity and integrity of his conduct in relation to the public property have never for a moment been drawn into question.

We forbear to canvass minutely the personalities in which our adversaries have indulged. ’T is enough for us, that they acknowledge our candidate to possess the good qualities which we have ascribed to him. If he has inherited a large estate, ’t is certainly no crime.

’T is to his honor that his benevolence is as large Edition: current; Page: [244] as his estate. Let his numerous tenants be his witnesses:—attached as they are to him, not by the ties of dependence (for the greater part of them hold their lands in fee simple and upon easy rents), but by the ties of affection, by those gentle and precious cords which link gratitude to kindness. Let the many indigent and distressed who have been gladdened by the benign influence of his bounty, be his witnesses. And let every reflecting man well consider, whether the people are likely to suffer because the ample fortune of a virtuous and generous Chief Magistrate places him beyond the temptation of a job, for the accumulation of wealth.

We shall not inquire how ample may be the domains, how productive the revenues, how numerous the dependents of Mr. Clinton, nor how his ample domains may have been acquired. ’T is enough for us to say, that if Mr. Van Rensselaer is rich, Mr. Clinton is not poor, and that it is at least as innocent in the former to have been born to opulence, as in the latter to have attained to it by means of the advantages of the first office of the State, long, very long enjoyed, for three years at least too long, because, by an unlawful tenure, contrary to a known majority of suffrages.

We shall not examine how likely it is that a man considerably past the meridian of life, and debilitated by infirmities of body, will be a more useful and efficient governor, and more independent of the aid of friends and relations, than a man of acknowledged good sense, of mature years, in the full vigor of life, and in the full energy of his faculties.

We shall not discuss how far it is probable that the radical antipathy of Mr. Clinton to the vital parts of our National Constitution has given way to the little formal amendments which have since been adopted. We are glad to be assured that it has. It gives us pleasure to see proselytes to the truth; nor shall we be over-curious to inquire how men get right if we can but discover that they are right. If, happily, the possession of the power of our once-detested government shall be a talisman to work the conversion of all its enemies, we shall be ready to rejoice that good has come out of evil.

But we dare not too far indulge this pleasing hope. We know that the adverse party has its Dantons, and its Robespierres, as well as its Brissots and its Rolands; and we look forward to the time when the sects of the former will endeavor to confound the latter and their adherents, together with the Federalists, in promiscuous ruin.

In regard to these sects, which compose the pith and essence of the anti-federal party, we believe it to be true that the contest between us is indeed a war of principles—a war between tyranny and liberty, but not between monarchy and republicanism. It is a contest between the tyranny of Jacobinism, which confounds and levels every thing, and the mild reign of rational liberty, which rests on the basis of an efficient and well-balanced government, and through the medium of stable laws shelters and protects the life, the reputation, the civil and religious rights of every member of the community.

’T is against these sects that all good men should Edition: current; Page: [246] form an indissoluble league. To resist and frustrate their machinations is alike essential to every prudent and faithful administration of our government, whoever may be the depositories of the power.

EXAMINATION OF JEFFERSON’S MESSAGE TO CONGRESS OF DECEMBER 7, 18011

LANSING OR BURR1

LAW BRIEFS

CARRIAGE TAX1

What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain Edition: current; Page: [379]for any antecedent settled legal meaning to the respective terms—there is none.

We shall be as much at a loss to find any disposition of either which can satisfactorily determine the point.

Shall we call an indirect tax, a tax which is ultimately paid by a person, different from the one who pays it in the first instance?

Truly speaking, there is no such tax—those on imported articles best claim the character. But in many instances the merchant cannot transfer the tax to the buyer; in numerous cases it falls on himself, partly or wholly. Besides, if the same article which is imported by a merchant for sale, is imported by a merchant for his own use, or by a lawyer, a physician, or mechanic, for his own use, there can be no question about the transfer of the tax. It remains upon him who pays it.

According to that rule, then, the same tax may be both a direct and indirect tax, which is an absurdity. To urge that a man may either buy an article already imported, or import it himself, amounts to nothing; sometimes he could not have that option.

But the option of an individual cannot alter the nature of a thing. In like manner he might avoid the tax on carriages by hiring occasionally instead of buying.

The subject of taxation, not the contingent optional conduct of individuals, must be the criterion of direct or indirect taxation. Shall it be said that an indirect tax is that of which a man is not conscious when he pays? Neither is there any such tax. The Edition: current; Page: [380]ignorant may not see the tax in the enhanced price of the commodity—but the man of reflection knows it is there. Besides, when any but a merchant pays, as in the case of the lawyer, etc., who imports for himself, he cannot but be conscious that it falls upon himself.

By this rule, also, then a tax would be both direct and indirect—and it will be equally impracticable to find any other precise or satisfactory criterion.

In such a case no construction ought to prevail calculated to defeat the express and necessary authority of the government.

It would be contrary to reason, and to every rule of sound construction, to adopt a principle for regulating the exercise of a clear constitutional power which would defeat the exercise of the power.

It cannot be contested that a duty on carriages specifically is as much within the authority of the government as a duty on lands or buildings.

Now, if a duty on carriages is to be considered as a direct tax, to be apportioned according to the rates of representation, very absurd consequences must ensue.

‘T is possible that a particular State may have no carriages of the description intended to be taxed, or a very small number.

But each State would have to pay a proportion of the sum to be laid, according to its relative numbers; yet, while the State would have to pay a quota, it might have no carriages upon which its quota could be assessed, or so few, as to render it ruinous to the owners to pay the tax. To consider then a duty on Edition: current; Page: [381]carriages as a direct tax, may be to defeat the power of laying such a duty. This is a consequence which ought not to ensue from construction.

Further: If the tax on carriages be a direct tax, that on ships according to their tonnage must be so likewise. Here is not a consumable article. Here the tax is paid by the owner of the thing taxed, from time to time, as would be the tax on carriages.

If it be said that the tax is indirect because it is alternately paid by the freighter of the vessel, the answer is, that sometimes the owner is himself the freighter, and at other times the tonnage accrues when there is no freight, and is a dead charge on the owner of the vessel.

Moreover, a tax on a hackney or stage-coach or other carriage, or on a dray or cart employed in transporting commodities for hire, would be as much a charge on the freight as a tax upon vessels; so that, if the latter be an indirect tax, the former cannot be a direct tax.

And it would be too great a refinement for a rule of practice in government to say, that a tax on a hackney or stage-coach, and upon a dray or cart, is an indirect one, and yet a tax upon a coach or wagon ordinarily used for the purposes of its owner, is a direct one.

The only known source of the distinction between direct and indirect taxes is in the doctrine of the French Economists—Locke and other speculative writers—who affirm that all taxes fall ultimately upon land, and are paid out of its produce, whether laid immediately upon itself, or upon any other thing. Edition: current; Page: [382]Hence, taxes upon lands are in that system called direct taxes; those on all other articles indirect taxes.

According to this, land taxes only would be direct taxes, but it is apparent that something more was intended by the Constitution. In one case, a capitation is spoken of as a direct tax.

But how is the meaning of the Constitution to be determined? It has been affirmed, and so it will be found, that there is no general principle which can indicate the boundary between the two. That boundary, then, must be fixed by a species of arbitration, and ought to be such as will involve neither absurdity nor inconvenience.

The following are presumed to be the only direct taxes.

Capitation or poll taxes.

Taxes on lands and buildings.

General assessments, whether on the whole property of individuals, or on their whole real or personal estate; all else must of necessity be considered as indirect taxes.

To apply a rule of apportionment according to numbers to taxes of the above description, has some rationale in it; but to extend an apportionment of that kind to other cases, would, in many instances, produce, as has been seen, preposterous consequences, and would greatly embarrass the operations of the government. Nothing could be more capricious or outré, than the application of quotas in such cases.

The Constitution gives power to Congress to lay and collect the taxes, duties, imposts, and excises, Edition: current; Page: [383]requiring that all duties, imposts, and excises shall be uniform throughout the United States.

Here duties, imposts, and excises appear to be contradistinguished from taxes, and while the latter is left to apportionment, the former are enjoined to be uniform.

But, unfortunately, there is equally here a want of criterion to distinguish duties, imposts, and excises from taxes.

If the meaning of the word excise is to be sought in the British statutes, it will be found to include the duty on carriages, which is there considered as an excise, and then must necessarily be uniform and not liable to apportionment; consequently not a direct tax.

An argument results from this, though not perhaps a conclusive one: yet where so important a distinction in the Constitution is to be realized, it is fair to seek the meaning of terms in the statutory language of that country from which our jurisprudence is derived.

THE LAW OF LIBEL1

• I.—The liberty of the press consists in the right to publish with impunity truth, with good motives, for justifiable ends, though reflecting on government, magistracy, or individuals.
• II.—That the allowance of this right is essential to Edition: current; Page: [384]the preservation of free government—the disallowance of it, fatal.
• III.—That its abuse is to be guarded against by subjecting the exercise of it to the animadversion and control of the tribunals of justice; but that this control cannot safely be intrusted to a permanent body of magistracy, and requires the effectual co-operation of court and jury.
• IV.—That to confine the jury to the mere question of publication and the application of terms, without the right of inquiry into the intent or tendency, referring to the court the exclusive right of pronouncing upon the construction, tendency, and intent of the alleged libel, is calculated to render nugatory the function of the jury; enabling the court to make a libel of any writing whatsoever, the most innocent or commendable.
• V.—That it is the general rule of criminal law, that the intent constitutes the crime, and that it is equally a general rule that the intent, mind, or quo animo, is an inference of fact to be drawn by the jury.
• VI.—That if there are exceptions to this rule, they are confined to cases in which not only the principal fact, but its circumstances can be and are specifically defined by statute or judicial precedent.
• VII—That in respect to libel there is no such specific and precise definition of facts and circumstances to be found, that consequently it is difficult, if not impossible, to pronounce that any writing is per se and exclusive of all circumstances libellous; that its libellous character must depend on intent and tendency, the one and the other being matter of fact.
• Edition: current; Page: [385]VIII.—That the definitions or descriptions of libels to be found in the books predicate them upon some malicious or mischievous intent or tendency, to expose individuals to hatred or contempt, or to occasion a disturbance or breach of the peace.
• IX—That in determining the character of a libel, the truth or falsehood is in the nature of things a material ingredient, though the truth may not always be decisive, but being abused, may still admit of a malicious and mischievous intent which may constitute a libel.
• X—That in the Roman law, one source of the doctrine of libel, the truth in cases interesting to the public, may be given in evidence. That the ancient statutes probably declaratory of the common law, make the falsehood an ingredient of the crime. That ancient precedents in the courts of justice correspond, and that these precedents to this day charge a malicious intent.
• XI.—That the doctrine of excluding the truth as immaterial originated in a tyrannical and polluted source, the court of Star Chamber, and that though it prevailed a considerable length of time, yet there are leading precedents down to the Revolution, and even since, in which a contrary practice prevailed.
• XII.—That this doctrine being against reason and natural justice, and contrary to the original principles of the common law enforced by statutory provisions, precedents which support it deserve to be considered in no better light than as malus usus which ought to be abolished.
• Edition: current; Page: [386]XIII.—That in the general distribution of powers in our system of jurisprudence, the cognizance of law belongs to the court, of fact to the jury; that as often as they are not blended, the power of the court is absolute and exclusive. That in civil cases it is always so, and may rightfully be so exerted. That in criminal cases the law and fact being always blended, the jury, for reasons of a political and peculiar nature, for the security of life and liberty, is intrusted with the power of deciding both law and fact.
• XIV.—That this distinction results: 1, from the ancient forms of pleading in civil cases, none but special pleas being allowed in matter of law; in criminal, none but the general issue; 2, from the liability of the jury to attaint in civil cases, and the general power of the court as its substitute in granting new trials, and from the exemption of the jury from attaint in criminal cases, and the defect of power to control their verdicts by new trials, the test of every legal power being its capacity to produce a definitive effect liable neither to punishment nor control.
• XV.—That in criminal cases, nevertheless, the court are the constitutional advisers of the jury in matter of law; who may compromit their conscience by lightly or rashly disregarding that advice, but may still more compromit their consciences by following it, if exercising their judgments with discretion and honesty they have a clear conviction that the charge of the court is wrong.

SPEECH IN THE CASE OF HARRY CROSWELL1

In rising to address your honors at so late a period of the day, and after your attention has been so much fatigued, and the cause has been so ably handled, I may say, so exhausted, I feel a degree of embarrassment which it is with difficulty I can surmount. I fear lest it should not be possible for me to interest the attention of the court on the subject on which I have to speak. Nevertheless, I have a duty to perform, of which I cannot acquit myself, but by its execution. I have, however, this consolation, that though I may fail in the attempt, I Edition: current; Page: [388]shall be justified by the importance of the question. I feel that it is of the utmost magnitude; of the highest importance viewed in every light. First, as it regards the character of the head of our nation; for, if indeed the truth can be given in evidence, and that truth can, as stated in the indictment, be established, it will be a serious truth, the effect of which it will be impossible to foresee. It is important also as it regards the boundaries of power between the constituent parts of our constitutional tribunals, to which we are, for the law and the fact, to resort—our judges and our juries. It is important, as it regards settling the right principles that may be applied to the case, in giving to either the one or the other the authority destined to it by the spirit and Edition: current; Page: [389]letter of our law. It is important on account of the influence it must have on the rights of our citizens. Viewing it, therefore, in these lights, I hope I shall, in the arduous attempt, be supported by its importance, and if any doubt hangs on the mind of the court, I shall, I trust, be able to satisfy them that a new trial ought to be had.

The question branches itself into two divisions. The first as to the truth—whether, under a general issue of not guilty, it ought to be given in evidence. The other, as to the power of the court—whether it has a right, exclusively, over the intent, or whether that and the law do not constitute one complicated fact, for the cognizance of the jury, under the direction of the judge. The last, I trust, can be made to appear, on the principle of our jurisprudence, as plainly as it is possible to evince anything to a court; and that, in fact, there are no precedents which embrace the doctrines of the other side, or rather that they are so diverse and contrarient that nothing can arise from them to make an application to this case.

After these preliminary observations, and before I advance to the full discussion of this question, it may be necessary for the safety and accuracy of investigation, a little to define what this liberty of the press is, for which we contend, and which the present doctrines of those opposed to us, are, in our opinions, calculated to destroy.

The liberty of the press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on the government, on Edition: current; Page: [390]magistrates, or individuals. If it be not allowed, it excludes the privilege of canvassing men, and our rulers. It is in vain to say, you may canvass measures. This is impossible without the right of looking to men. To say that measures can be discussed, and that there shall be no bearing on those who are the authors of those measures, cannot be done. The very end and reason of discussion would be destroyed. Of what consequence to show its object? Why is it to be thus demonstrated, if not to show, too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power. If this be not to be done, then in vain will the voice of the people be raised against the inroads of tyranny. For, let a party but get into power, they may go on from step to step, and, in spite of canvassing their measures, fix themselves firmly in their seats, especially as they are never to be reproached for what they have done. This abstract mode, in practice, can never be carried into effect. But if, under the qualifications I have mentioned, the power be allowed, the liberty for which I contend will operate as a salutary check. In speaking thus for the freedom of the press, I do not say there ought to be an unbridled license; or that the characters of men who are good will naturally tend eternally to support themselves. I do not stand here to say that no shackles are to be laid on this license.

I consider this spirit of abuse and calumny as the Edition: current; Page: [391]pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters, and though it has pleased God to take him from us and this band of calumniators, I say that falsehood eternally repeated would have affected even his name. Drops of water, in long and continued succession, will wear out adamant. This, therefore, cannot be endured. It would be to put the best and the worst on the same level.

I contend for the liberty of publishing truth, with good motives and for justifiable ends, even though it reflect on government, magistrates, or private persons. I contend for it under the restraint of our tribunals. When this is exceeded, let them interpose and punish. From this will follow none of those consequences so ably depicted. When, however, we do look at consequences, let me ask whether it is right that a permanent body of men, appointed by the executive, and, in some degree, always connected with it, should exclusively have the power of deciding on what shall constitute a libel on our rulers, or that they shall share it, united with a changeable body of men chosen by the people. Let our juries still be selected, as they now are, by lot. But it cannot be denied, that every body of men is, more or less, liable to be influenced by the spirit of the existing administration; that such a body may be liable to corruption, and that they may be inclined to lean over towards party modes. No man can think more highly of our judges, and I may say personally so of those who now preside, than myself; Edition: current; Page: [392]but I must forget what human nature is, and how her history has taught us that permanent bodies may be so corrupted, before I can venture to assert that it cannot be. As then it may be, I do not think it safe thus to compromise our independence. For though, as individuals, the judges may be interested in the general welfare, yet, if once they enter into these views of government, their power may be converted into the engine of oppression. It is in vain to say that allowing them this exclusive right to declare the law, on what the jury has found, can work no ill; for, by this privilege, they can assume and modify the fact, so as to make the most innocent publication libellous. It is therefore not a security to say, that this exclusive power will but follow the law. It must be with the jury to decide on the intent; they must in certain cases be permitted to judge of the law, and pronounce on the combined matter of law and of fact. Passages have been adduced from Lord Mansfield’s declarations to show that judges cannot be under the influence of an administration. Yet still it would be contrary to our own experience, to say that they could not. I do not think that even as to our own country it may not be. There are always motives and reasons that may be held up. It is therefore still more necessary, here, to mingle this power, than in England. The person who appoints there, is hereditary. That person cannot alone attack the judiciary; he must be united with the two Houses of Lords and of Commons, in assailing the judges. But, with us, it is the vibration of party. As one side or the other Edition: current; Page: [393]prevails, so of that class and temperament will be the judges of their nomination. Ask any man, however ignorant of principles of government, who constitute the judiciary, he will tell you the favorites of those at the head of affairs. According then to the theory of this our free government, the independence of our judges is not so well secured as in England. We have here reasons for apprehension not applicable to them. We are not, however, to be now influenced by the preference to one side or the other. But of which side soever a man may be, it interests all, to have the question settled, and to uphold the power of the jury, consistently however with liberty, and also with legal and judicial principles, fairly and rightly understood. None of these impair that for which we contend—the right of publishing the truth, from good motives and justifiable ends, though it reflect on government, on magistrates, or individuals.

Some observations have, however, been made in opposition to these principles. It is said, that as no man rises at once high into office, every opportunity of canvassing his qualities and qualifications is afforded, without recourse to the press; that his first election ought to stamp the seal of merit on his name. This, however, is to forget how often the hypocrite goes from stage to stage of public fame, under false array, and how often, when men obtain the last object of their wishes, they change from that which they seemed to be; that men, the most zealous reverers of the people’s rights, have, when placed on the highest seat of power, become their most deadly Edition: current; Page: [394]oppressors. It becomes, therefore, necessary to observe the actual conduct of those who are thus raised up.

I have already shown that, though libelling shall continue to be a crime, it ought to be so only when under a restraint, in which the court and the jury shall co-operate. What is a libel that it should be otherwise? Why take it out of the rule that allows, in all criminal cases, when the issue is general, the jury to determine upon the whole? What is then a libel to produce this? That great and venerable man, Lord Camden, already cited with so much well-deserved eulogy, says that he has never yet been able to form a satisfactory definition. All essays made towards it are neither accurate nor satisfactory; yet, such as they are, I shall cite them and animadvert.

Blackstone and Hawkins declare that it is any malicious defamation, with an intent to blacken the reputation of any one, dead or alive.

The criminal quality is its maliciousness. The next ingredient is, that it shall have an intent to defame. I ask, then, if the intent be not the very essence of the crime. It is admitted that the word falsity, when the proceedings are on the statute, must be proved to the jury, because it makes the offence. Why not then the malice, when, to constitute the crime, it must necessarily be implied? In reason there can be no difference.

A libel is, then, a complicated matter of fact and law, with certain things and circumstances to give them a character. If so, then the malice is to be Edition: current; Page: [395]proved. The tendency to provoke is its constituent. Must it not be shown how and in what manner? If this is not to be the case, must every one who does not panegyrize be said to be a libeller? Unless the court are disposed to go to that extreme length, it is necessary that the malice and intent must be proved. To this it is certain the definition of Lord Coke may, in some degree, be opposed. He does seem to super-add “the breach of the peace.” Lord Coke, however, does not give this as a specific definition; and even then the defamatory writing, which he particularizes, includes the question both of intent and malice. The breach of the peace, therefore, is not made the sole, but only one of the qualities. The question is not on the breaking of the peace, but depends on time, manner, and circumstances, which must ever be questions of fact for jury determination. I do not advocate breaking the peace; observations may be made on public men, which are calculated merely to excite the attention of the community to them; to make the people exercise their own functions, which may have no tendency to a breach of the peace, but only to inspection. For surely a man may go far in the way of reflecting on public characters, without the least design of exciting tumult. He may only have it in view to rouse the nation to vigilance and a due exertion of their right to change their rulers. This, then, being a mere matter of opinion, can it be not a matter for them to judge of to whom it is addressed? The court, to be sure, may, like a jury, and in common with them, have the legal power and moral discernment to Edition: current; Page: [396]determine on this; yet it does not arise out of the writing, but by adverting to the state of things and circumstances. It, therefore, answers no purpose to say it has a tendency to a breach of the peace.

Lord Loughborough, in the Parl. Chron., 644, 657, instances that passages from holy writ may be turned into libels.

Lord Thurlow admits that this may happen, and that time and circumstances may enter into the question. He, it is true, sanctioned the doctrines of our opponents, but allowed time and circumstances to be ingredients; and, strange to say, though these are extrinsic to the record, was of opinion for the old law. Lord Thurlow says, however, that it might be something more than a bare libel—intimating here that it may be even treason; and is it not, then, to confess that intent is a matter of fact? If so, who or where shall be the forum but the jury?

My definition of a libel is, and I give it with all diffidence after the words of Lord Camden—my definition, then, is this: I would call it a slanderous or ridiculous writing, picture, or sign, with a malicious or mischievous design or intent, towards government, magistrates, or individuals. If this definition does not embrace all that may be so called, does it not cover enough for every beneficial purpose of justice? If it have a good intent, it ought not to be a libel, for it then is an innocent transaction; and it ought to have this intent, against which the jury have, in their discretion, to pronounce. It shows itself to us as a sentence of fact. Crime is a matter of fact by the code of our jurisprudence. In my opinion, Edition: current; Page: [397]every specific case is a matter of fact, for the law gives the definition. It is some act in violation of law. When we come to investigate, every crime includes an intent. Murder consists in killing a man with malice prepense. Manslaughter, in doing it without malice, and at the moment of an impulse of passion. Killing may even be justifiable, if not praiseworthy, as in defence of chastity about to be violated. In these cases the crime is defined, and the intent is always the necessary ingredient. The crime is matter of law, as far as definition is concerned; fact, as far as we are to determine its existence.

But it is said the judges have the right, on this fact, to infer the criminal intent, that being matter of law. This is true; but what do we mean by these words, unless the act dependent on and united with its accessories, such as the law has defined, and which when proved constitute the crime? But whether the jury are to find it so with all its qualities, is said to be a question; no act, separate from circumstances, can be criminal, for without these qualities it is not a crime. Thus, as I have before instanced, murder is characterized by being with malice prepense; manslaughter, by being involuntary; justifiable homicide, by having some excuse. Killing, therefore, is not a crime; but it becomes so in consequence of the circumstances annexed. In cases that are, in the general opinion of mankind, exceptions to the explanations I have given, the law contemplates the intent. In duelling, the malice is supposed, from the deliberate acts of reflecting, sending Edition: current; Page: [398]a challenge, and appointing the time and place of meeting. Here, it is true, the law implies the intent; but then, let it be remembered that it is in consequence of its having previously defined the act, and forbidden its commission. This too is on the principle of natural justice, that no man shall be the avenger of his own wrongs, especially by a deed alike interdicted by the laws of God and of man. That, therefore, the intent shall in this case constitute the crime, is because the law has declared it shall be so. It is impossible to separate a crime from the intent. I call on those opposed to us to say what is a libel. To be sure they have told us that it is any scandalous publication, etc., which has a tendency to a breach of the peace. This, indeed, is a broad definition, which must, for the purpose of safety, be reduced to a positive fact, with a criminal intent. In this there is no violation of law: it is a settled maxim, that mens facit reum; non reus, nisi sit mens rea.

When a man breaks into a house it is the intent that makes him a felon. It must be proved to the jury that it was his intention to steal; they are the judges of whether the intent was such, or whether it was innocent. Then so, I say, should it be here; let the jury determine, as they have the right to do, in all other cases, on the complicated circumstances of fact and intent. It may, as a general and universal rule, be asserted that the intention is never excluded in the consideration of the crime. The only case resorted to, and which is relied on by the opposite side (for all the others are built upon it), to show a contrary doctrine, was a star-chamber decision. To Edition: current; Page: [399]prove how plainly the intent goes to the constituting the crime of libel, the authority cited by the counsel associated with me, is fully in point. In that, the letter written to the father, though (as far as words were concerned) perfectly a libel, yet having been written for the purpose of reformation, and not with an intent to injure, was held not to amount to a libel. Suppose persons were suspected of forging public papers, and this communicated by letter to the Secretary of State, with a good design, still if the doctrines contended for were to prevail, it would be libellous and punishable, though the party not only did it with the best of motives, but actually saved the State. In madness and idiocy, crimes may be perpetrated, nay, the same malicious intent may exist, but the crime does not. These things tend to show that the criminality of an act is a matter of fact and law combined, and on which it cannot belong to the exclusive jurisdiction of the court to decide the intent; for the question is forever a question of fact.

The criminal intent, says Lord Mansfield, in the Dean of St. Asaph’s case, is what makes the crime.

Here, that truly great man—for great he was, and no one more fully estimates him than I do, yet he might have some biases on his mind not extremely favorable to liberty,—here, then, he seems to favor the doctrine contended for; but he will be found to be at times contradictory, nay, even opposed to himself. “A criminal intent in doing a thing in itself criminal, without a lawful excuse, is an inference of law.” How can that be in itself criminal which admits of a lawful excuse? Homicide is not in itself a Edition: current; Page: [400]crime, therefore it is not correct to say a criminal intent can be inferred, because a lawful excuse may be set up. A thing cannot be criminal which has a lawful excuse, but as it may have a certain quality which constitutes the crime. To be sure you may go on to say that where the intent bestows the character of criminality on an act indifferent, then it is a matter of fact, and not where the act is bad in itself. But this is begging the question. We contend that no act is criminal, abstracted and divested of its intent. Trespass is not in itself innocent. No man has a right to enter another’s land or house. Yet it becomes in this latter case felony only in one point of view, and whether it shall be holden in that point is a subject of jury determination. Suppose a man should enter the apartments of a king; this, in itself, is harmless, but if he do it with intent to assassinate, it is treason. To whom must this be made to appear in order to induce conviction? To the jury. Let it rather be said that crime depends on intent, and intent is one parcel of the fact. Unless, therefore, it can be shown that there is some specific character of libel that will apply in all cases, intent, tendency, and quality must all be matters of fact for a jury. There is therefore, nothing which can be libel, independent of circumstances; nothing which can be so called in opposition to time and circumstances. Lord Loughborough, indeed, in the parliamentary debates on this very subject, to which I have referred the court, admits this to be the case. Lord Mansfield, embarrassed with the truth and strength of the doctrine, endeavors to contrast meaning with intent. Edition: current; Page: [401]He says that the truth may be given in evidence to show the meaning, but not the intent. If this can be done to show the application where the person is imperfectly described, why not to prove the intent, without which the crime cannot be committed? Whatever is done collaterally must show this, and in all cases collateral facts are for the jury. The intent here has been likened to the construction of a deed, or any unwritten instrument, in all of which the intent is for the court. But the comparison will not hold; for even there the intent may be inquired aliunde. When you go to quality and explain, what is this but to decide on the intent by matters of fact? Lord Mansfield is driven into this contradiction when, on one occasion, he says it is a matter on which the jury may exercise their judgment, and in another that it is not. I am free to confess, that in all difficult cases, it is the duty of a jury to hearken to the directions of a judge with very great deference. But if the meaning must be either on the face of the libel or from any thing aliunde, then it must be a matter of fact for the jury. That the quo animo affects the constitution of libel, cannot be disputed, and must be inquired of by somebody. Now, unless this is tried by the jury, by whom is it to be determined? Will any man say, that in the case of the star chamber, respecting the letter written to the child’s father, the intent was not the reason why it was held innocent, and the quo animo not gone into? Did they not then endeavor to prove the guilt by the intent? Now, if you are to show things malicious aliunde, you may defend by the same means. The mens is the Edition: current; Page: [402]question, and in common parlance it is that to which we resort to show guilt. II. Mod., the Queen vs. Brown, will explain how it is to be found. Nay, in this very case, when the counsel for the defendant objected to the attorney-general reading passages from the prospectus of the Wasp, and from other numbers, he expressly avowed that he thus acted in order that the jury might see it to be “manifest that the intent of the defendant was malicious.” This, I here observe, is a mistake that law officers would not be very apt to slide into. Yet, on this very intent, this malicious intent thus proved to the jury, and on which they founded their verdict, is the court now asked to proceed to judgment. To demonstrate how fully this matter of intent is by our law a subject of jury determination, suppose the grand jury had, in the present case, returned to the bill ignoramus; on what would they have founded their return? Is not this, then, a precedent that the quo animo is for a jury? If it be necessary only to find the publication, why is not the grand jury competent for the whole? For if the supposition is that the grand jury may decide on the finding of the bill, surely the petit jury may acquit. If so, then is the case I have mentioned an important precedent. In Rex vs. Horne, an authority that has been justly urged, the principle is allowed. It appears there that the jury are to exercise their judgment from the nature of the act, what is its intent. Into a confession of this is Lord Mansfield himself driven. Regina vs. Fuller, we are told from the other side, was a case on the statute for scandalum magnatum. Of this, however, I can find Edition: current; Page: [403]no trace in the books, and there Lord Holt, repeatedly interrogated as to the truth, would have allowed it to be given in evidence, and directed the jury that if they did not believe the allegations false, they were not to find the defendant guilty. This, then, is a decision, as we contend, that not only the intent, but the truth is important to constitute the crime, and nothing has been shown against it. Nay, Lord Holt goes on still further; he bids the jury consider whether the papers have not a tendency to beget sedition, riot, and disturbance. Surely this authority of that great man demonstrates that intent and tendency are matters of fact for a jury. This argument will be further strengthened when I enumerate those cases where truth has been permitted to be shown. But before I do that, I must examine how far truth is to be given in evidence. This depends on the intent being a crime. Its being a truth is a reason to infer that there was no design to injure another. Thus, not to decide on it would be injustice, as it may be material in ascertaining the intent. It is impossible to say that to judge of the quality and nature of an act, the truth is immaterial. It is inherent in the nature of things, that the assertion of truth cannot be a crime. In all systems of law this is a general axiom, but this single instance, it is attempted to assert, creates an exception, and is therefore an anomaly. If, however, we go on to examine what may be the case that shall be so considered, we cannot find it to be this. If we advert to the Roman Law, we shall find that Paulus and Pereizius take a distinction between those truths which relate to Edition: current; Page: [404]private persons and those in which the public are interested. Vinnius lays it down in the doctrine cited by the associate counsel who last spoke. If, then, we are to consider this a doctrine to be adopted in all that relates to public men, it ought now to be received. When we advert to the statutes they confirm our positions. Those statutes are indisputably declaratory of the early law. We know that a great part of the common law has been, for certainty, reduced to statutes. Can we suppose that the common law did not notice that no punishment was to be inflicted for speaking the truth, when we see a statute thus enacting?

Therefore, the fair reasoning is, that they are declaratory of the common law. That, by our code, falsehood must be the evidence of the libel. If we apply to precedents, they are decidedly for us. In the case cited from 7 D. and E. this is admitted, for there it is allowed that the word false is contained in all the ancient forms. This, then, is a strong argument for saying that the falsity was, by the common law, considered a necessary ingredient. It is no answer to say that in declarations for assaults we use the words “sticks,” “staves,” etc. When instruments are named, this imports only one or the other which might be used; but when a word by way of epithet, that it means a precise idea, and we are to take it as if introduced for the purpose of explaining the crime. As to the practice on this occasion, we must take various epochs of the English history into consideration. At one time, that the law was as we have shown, is proved by the statutes. Edition: current; Page: [405]At that time the truth was clearly drawn into question, and that since the period of Lord Raymond a different practice has prevailed, is no argument against the common law. The authority from the third institute is conclusive, at least satisfactory, to show that it was then necessary to show the words were true. Et quid, etc., quœ litera in se continet nullum veritatem ideo, etc. It is to be supposed that the truth in this case was not inquired into, when the want of it is the reason of the judgment. Unless this had been gone into, the court would not nor could not have spoken to it. The insertion of that, then, is a strong argument that this was the old law, and it shows us what that law was. In the case of the seven bishops, they were allowed to go into all the evidence they wanted. The court permitted them to read every thing to show it.

On that occasion Halloway and all agreed as to the admissibility of the truth. But this case is important in another view, as it shows the intent ought to be inquired into, for the bishops might have done it either with a seditious or an innocent motive. They declare that by the law they could not do the act required. They exculpated themselves by an appeal to their consciences. This shows the necessity of inquiring into the intent of the act.

In Rex vs. Fuller, this very atrocious offender was indicted for a most infamous libel, and yet Lord Holt at every breath asked him, Can you prove the truth? At the time, then, when this was done, there were some things in favor of the truth. It stands, then, a precedent for what we contend. I shall now Edition: current; Page: [406]notice some intermediate authorities between that day and those in which a contrary principle has been endeavored to be supported. It is true that the doctrine originated in one of the most oppressive institutions that ever existed; in a court whose oppressions roused the people to demand its abolition, whose horrid judgments cannot be read without freezing the blood in one’s veins. This is not used as declamation, but as argument. If doctrine tends to trample on the liberty of the press, and if we see it coming from a foul source, it is enough to warn us against polluting the stream of our own jurisprudence. It is not true that it was abolished merely for not using the intervention of juries, or because it proceeded ex parte, though that, God knows, would have been reason enough, or because its functions were discharged by the court of king’s bench. It was because its decisions were cruel and tyrannical; because it bore down the liberties of the people, and inflicted the most sanguinary punishments. It is impossible to read its sentences without feeling indignation against it. This will prove why there should not be a paramount tribunal to judge of these matters.

Want’s case is the first we find on this subject; but even then we do not meet the broad definition of Lord Coke, in the case of de famosis libellis. I do not deny this doctrine of the immateriality of the truth as a universal negative to a publication’s being libellous, though true. But still I do say, that in no case may you not show the intent; for, whether the truth be a justification will depend on the motives with which it was published.

Personal defects can be made public only to make a man disliked. Here, then, it will not be excused; it might, however, be given in evidence to show the libellous degree. Still, however, it is a subject of inquiry. There may be a fair and honest exposure. But if he uses the weapon of truth wantonly; if for the purpose of disturbing the peace of families; if for relating that which does not appertain to official conduct, so far we say the doctrine of our opponents is correct. If their expressions are, that libellers may be punished though the matter contained in the libel be true, in these I agree. I confess that the truth is not material as a broad proposition respecting libels. But that the truth cannot be material in any respect, is contrary to the nature of things. No tribunal, no codes, no systems can repeal or impair this law of God, for by his eternal laws it is inherent in the nature of things. We first find this large and broad position to the contrary in 5 Rep. And here it is to be noticed that when Lord Coke himself was in office, when he was attorney-general, and allowed to give his own opinion, he determines the truth to be material. But when he gets into that court, and on that bench, which had pronounced against it, when he occupies a star-chamber seat, then he declares it is immaterial. I do not mention this as derogating from Lord Coke, for, to be sure, he may be said to have yielded; but this, I say, is the first case on this point in which he seems to be of a contrary opinion. We do not, in every respect, contend even against his last ideas, we only assert that the truth may be given in evidence. But this we Edition: current; Page: [408]allow is against the subsequent authorities, which, in this respect, overturn the former precedents. These latter, however, are contrary to the common law; to the principles of justice and of truth. The doctrine, that juries shall not judge on the whole matter of law and fact, or the intent and tendency of the publication, is not to be found in the cases before the time of Lord Raymond; and it is contrary to the spirit of our law, because it may prevent them from determining on what may, perhaps, be within their own knowledge. It was only by Lord Raymond that this was first set up and acted upon, and this has been followed by Lord Mansfield and his successors. Here, then, have been a series of precedents against us. Blackstone, too, says that the truth may not be given in evidence so as to justify; and so, with the qualifications I have before mentioned, do we. Prior, indeed, to his time, Lord Holt had laid down the law, in one or two cases, in conformity to that of the other side, and later times have given this a currency by a coincidence of precedents in its favor. A reflection may, perhaps, be here indulged, that, from what I have before remarked on Lord Coke, it is frequent for men to forget sound principles, and condemn the points for which they have contended. Of this, the very case of the seven bishops is an example, when those, who there maintained the principles for which we contend, supplanted the persons then in power, they were ready to go the whole length of the doctrine that the truth could not be given in evidence on a libel. This is an admonition that ought at all times to be attended Edition: current; Page: [409]to; that at all times men are disposed to forward principles to support themselves. The authority of Paley had been adduced, if indeed he may be called an authority. That moral philosopher considers every thing as slanderous libels whether true or false, if published with motives of malice.

In these cases he does not consider the truth a justification. Nor do we; we do not say that it is, alone, always a justification of the act; and this we say, consistent with sound morality, is good law and good sense. On what ought a court to decide on such an occasion as this? Shall they be shackled by precedents, weakened in that very country where they were formed? Or rather, shall they not say, that we will trace the law up to its source? We consider, they might say, these precedents as only some extraneous bodies engrafted on the old trunk; and as such I believe they ought to be considered. I am inclined to think courts may go thus far, for it is absolutely essential to right and security that the truth should be admitted. To be sure, this may lead to the purposes suggested. But my reply is, that government is to be thus treated, if it furnish reasons for calumny. I affirm that, in the general course of things, the disclosure of truth is right and prudent, when liable to the checks I have been willing it should receive as an object of animadversion.

It cannot be dangerous to government, though it may work partial difficulties. If it be not allowed, they will stand liable to encroachments on their rights. It is evident that if you cannot apply this mitigated doctrine, for which I speak, to the cases Edition: current; Page: [410]of libels here, you must forever remain ignorant of what your rulers do. I never can think this ought to be; I never did think the truth was a crime; I am glad the day is come in which it is to be decided, for my soul has ever abhorred the thought that a free man dared not speak the truth; I have forever rejoiced when this question has been brought forward.

I come now to examine the second branch of this inquiry—the different provinces of the court and the jury. I will introduce this subject by observing that the trial by jury has been considered, in the system of English jurisprudence, as the palladium of public and private liberty. In all the political disputes of that country, this has been deemed the barrier to secure the subjects from oppression. If, in that country, juries are to answer this end, if they are to protect from the weight of state prosecutions, they must have this power of judging of the intent, in order to perform their functions; they could not otherwise answer the ends of their institution. For, under this dangerous refinement of leaving them to decide only the fact of composing and publishing, any thing on which they may decide, may be made a libel. I do not deny the well-known maxim—that to matters of fact the jury, and to matters of law the judges, shall answer. I do not deny this, because it is not necessary, for the purpose of this or any other case, that it should be denied. I say, with this complicated explanation, I have before given of the manner in which the intent is necessarily interwoven in the fact, the court has the general cognizance of the law. In all cases of ancient Edition: current; Page: [411]proceedings the question of law must have been presented.

It was in civil cases alone that an attaint would lie. They have, it is said, the power to decide in criminal cases, on the law and the fact. They have then the right, because they cannot be restricted in its exercise; and, in politics, power and right are equivalent. To prove it, what shall we say to this case? Suppose the Legislature to have laid a tax, which, by the Constitution, they certainly are entitled to impose, yet still the Legislature may be guilty of oppression; but who can prevent them, or say they have not authority to raise taxes? Legal power, then, is the decisive effect of certain acts without control. It is agreed that the jury may decide against the direction of the court, and that their verdict of acquittal cannot be impeached, but must have its effect. This, then, I take to be the criterion, that the Constitution has lodged the power with them, and they have the right to exercise it. For this I could cite authorities. It is nothing to say, in opposition to this, that they, if they act wrong, are to answer between God and their consciences. This may be said of the Legislature, and yet, nevertheless, they have the power and the right of taxation. I do not mean to admit that it would be proper for jurors thus to conduct themselves, but only to show that the jury do possess the legal right of determining on the law and the fact. What, then, do I conceive to be true doctrine? That in the general distribution of power in our Constitution, it is the province of the jury to speak to fact, yet, in Edition: current; Page: [412]criminal cases, the consequences and tendency of acts, the law and the fact are always blended. As far as the safety of the citizen is concerned, it is necessary that the jury shall be permitted to speak to both. How, then, does the question stand? Certainly not without hazard; because, inasmuch as in the general distribution of power, the jury are to be confined to fact, they ought not wantonly to de-depart from the advice of the court; they ought to receive it, if there be not strong and valid reasons to the contrary; if there be, they should reject. To go beyond this is to go too far. Because, it is to say, when they are obliged to decide, by their oath, according to the evidence, they are bound to follow the words of the judge. After they are satisfied from him what the law is, they have a right to apply the definition. It is convenient that it should be so. If they are convinced that the law is as stated, let them pronounce him guilty; but never let them leave that guilt for the judge; because, if they do, the victim may be offered up, and the defendant gone. Will any one say, that under forms of law we may commit homicide? Will any directions from any judge excuse them? I am free to say, I would die on the rack, were I to sit as a juror, rather than confirm such a doctrine, by condemning the man I thought deserved to be acquitted; and yet I would respect the opinion of the judge, from which, however, I should deem myself at liberty to depart, and this I believe to be the theory of our law.

These are the propositions I shall endeavor to maintain. I have little more to do than examine Edition: current; Page: [413]how far precedents accord with principles, and whether any establish a contrary doctrine. I do not know that it is necessary to do more than has already been done by my associate counsel, and yet, perhaps, I should not complete my duty without adverting to what has fallen, on this point, from our opponents. There is not one of the ancient precedents in which our doctrine has not in general prevailed, and it is, indeed, to be traced down to one of a modern date. The case of the seven bishops is that to which I allude. There it was permitted to go into the truth, and all the court submitted the question to the jury. This case deserves particular attention. If, on the one hand, it was decided at a time when the nation was considerably agitated, it was, on the other hand, at a time when great constitutional precedents and points were discussed and resolved. The great one was, the power of the jury; and this power was submitted to, to extricate the people, for the salvation of the nation, from the tyranny with which they were then oppressed. This was one of the reasons which brought about their glorious revolution, and which, perhaps, tended to the maturing those principles which have given us ours. This ought to be considered as a landmark to our liberties, as a pillar which points out to us on what the principles of our liberty ought to rest; particularly so if we examine it as to its nature, and the nature of the attempts then made to set up and support the endeavors to construe an act of duty a libel—a deed in which conscience did not permit those reverend characters to act in any other way than what they did, a respect Edition: current; Page: [414]to which they held a bounden duty. It is a precedent then on which we should in every way fasten ourselves. The case of Fuller is of minor importance. Yet that is one in which Lord Holt called on the defendant to enter into the truth. In the King vs. Tutchin, Lord Holt expressly tells the jury, You are to consider whether the tendency of this writing be not to criminate the administration; you, the jury are to decide on this. Owen’s case is to the same effect. There Lord Camden was of counsel, and in the discussion, in the House of Lords, he tells us, and surely his testimony is good, that being of counsel for the defendant, he was permitted to urge to the jury a cognizance of the whole matter of libel; that in the case of Shepherd, where, by his official situation, he was called on to prosecute for the Crown, where the interests of government called on him to maintain an opposite doctrine, yet then he insisted for a verdict on the whole matter, from the consideration of the jury. In the King vs. Horne, Lord Mansfield himself tells the jury they have a right to exercise their judgment from the nature of the intent. This surely, then, is a precedent down to a late period. It is not, however, to be denied, that there is a series of precedents on the other side. But as far as precedents of this kind can be supported, they can rest on precedents alone, for the fundamental rights of juries show, that as by their power they can affect a question of this nature, so, politically speaking, they have the right. To ascertain this, it is necessary to inquire, whether this law, now contended for, uniformly and invariably formed Edition: current; Page: [415]the practice of all the judges in Westminster Hall. For, if so, then an argument may, with more propriety, be raised; but if it was disputed, then it is to be doubted. Precedents ought to be such as are universally acknowledged, and this, if we are to credit the highest authority, was not the invariable practice. Lord Loughborough says, that his practice was the other way. He declares that he invariably left the whole to the jury; and Lord Camden gives us to understand the same thing. Here, then, is proof that it was not universally acquiesced in, and this, by some of the most respected characters that ever sat on a bench.

Can we call this a settled practice—a practice which is contradicted by other precedents? Have they not varied? I consider nothing but a uniform course of precedents, so established that the judges invariably conform to it in their judicial conduct, as forming a precedent. When this is not the case, we must examine the precedent, and see how far it is conformable to principles of general law. If, then, they have not that character of uniformity, which gives force to precedents, they are not to be regarded, for they are too much opposed to fundamental principles. The court may, therefore, disregard them, and say the law was never thus settled. It was a mere floating of litigated questions. Different conduct was pursued by different men, and, therefore, the court is at liberty to examine the propriety of all; and if it be convenient that a contrary mode should be adopted, we ought to examine into what has been done, for we have a right so to do, and it is Edition: current; Page: [416]our sacred duty. When we pass from this to the declaratory law of Great Britain, the whole argument is enforced by one of the first authorities. I do not consider it as binding, but as an evidence of the common law. If so, I see not why we may not now hold it as evidence of another evidence, that the law had not been settled by a regular course of judicial precedents. In all the debates on this question, it is denied to have been so settled. It must then be confessed that it was so; the law was one thing, and the practice another; that to put it out of doubt was the end and object of Mr. Fox’s bill. Therefore it is in evidence that the law was not settled in that country. I notice another fact, or historical evidence of this; it is what was mentioned by Lord Lansdowne, in the very debates to which I have before alluded. It is, that twenty years before, a similar act was brought forward and dropped. Here then is a matter of fact to show that, in the consideration of that nation, the doctrines of Lord Mansfield were never palatable nor settled, and that the opinions of judges and lawyers were considered by many as not the law of the land. Let it be recollected, too, that with that nation the administration of justice in the last resort is in the House of Lords. That being so it gives extreme weight to a declaratory act, as it shows the sense of the highest branch of the judicature of that country. It is in evidence that what we contend for was and had been the law, and never was otherwise settled. It is a very honorable thing to that country, in a case where party passions had been excited to a very great height, to Edition: current; Page: [417]see that all united to bring it in. It was first introduced by Mr. Fox; the principal officers of the crown acquiesced; the Prime-Minister gave it his support, and in this they were aided by many of the great law lords. All parties concurred in declaring the principles of that act to be the law, and not only does the form prove it to be declaratory, but when the court read the debates on that subject they will see this to be the fact. Adding the word “enacted” to a bill does not vary the conclusion of its being declaratory. The word “enacted” is commonly super-added, but the word “declared” is never used but when it is intended that the act shall be considered as declaratory; and when they insert the word “declare” it is because they deem it important that it should be so understood. This I deem conclusive evidence of the intent. Thus also it was understood by all the judges except Lord Kenyon, and he does not say that it was not declaratory. To be sure he makes use of some expressions that look that way, such as, “that the act had varied the old law.” But not one word to show that it was not intended by Parliament to be a declaratory law. But it would not be surprising that Lord Kenyon, who opposed the passage of the act, should, in a judicial decision, still adhere to his old ideas. This, however, does not affect the evidence which arises from the words of the act. I join in issue, then, whether this be sufficient evidence to the court. For I contend, that notwithstanding the authority of Lord Kenyon and the cases on the other side, the conclusions they maintain would be unfair. For if these conclusions Edition: current; Page: [418]necessarily tend to the subversion of fundamental principles, though they be warranted by precedents, still the precedents ought not to weigh. But should they have settled the law by their precedents, still this court will admit any evidence to show that the facts are otherwise, and the law never was as they have settled it. In this case, then, I say, as matters of evidence, these precedents shall not prevail and shall not have any effect. In practice on this declaratory act they have gone into a construction important to our argument. But previously to entering into this I shall make one observation to show the nature of this act to be declaratory; the recital states it to be so.

Spencer, Attorney-General—The whole matter in issue are the words.

Hamilton—Is it to be doubted that every general issue includes law and fact? Not a case in our criminal code in which it is otherwise. The construction, the publication, the meaning of the innuendoes, the intent and design, are all involved in the question of libel, and to be decided on the plea of not guilty, which puts the whole matter in issue. It is, therefore, a subtlety to say that the fact and law are not in issue. There can be no distinction taken, even by judges, between libels and other points. But will it be said, that when this question was before the Parliament, whether the law and the fact should be in issue, that the Parliament did not mean to give the power to decide on both? It is a mere cavil to say that the act did not mean to decide on this very point. The opposition of the twelve Edition: current; Page: [419]judges has been much insisted on. But in my opinion they have given up the point as to the right of the jury to decide on the intent. They in some part of their answer assert the exclusive power of the court; they deny in terms the power of the jury to decide on the whole. But when pressed on this point as to a letter of a treasonable nature, how do they conclude? Why, the very reverse of all this. Here, then, we see the hardship into which the best of men are driven, when compelled to support a paradox. Can the jury do it with power, and without right? When we say of any forum that it can do and may hazard the doing a thing, we admit the legal power to do it. What is meant by the word “hazard”? If they choose to do it, they have then the legal right; for legal power includes the legal right. This is really only a question of words. But in the exercise of this right, moral ideas are no doubt to restrain; for the conscience ought to decide between the charge and the evidence which ought to prevail, one side or the other. The moment, however, that question as to the power is admitted, the whole argument is given up. I consider the judges driven to yield up, at the conclusion of their opinion, that point for which they had in the former parts contended. Thus, then, stands the matter, on English conduct, and on English precedent. Let us see if any thing in the annals of America will further the argument. Zenger’s case has been mentioned as an authority. A decision in a factitious period, and reprobated at the very time.

A single precedent never forms the law. If in Edition: current; Page: [420]England it was fluctuating in an English court, can a colonial judge, of a remote colony, ever settle it? He cannot fix in New York what was not fixed in Great Britain. It was merely one more precedent to a certain course of practice. But because a colonial governor, exercising judicial power, subordinate to the judges of the mother country, decides in this way, can it be said that he can establish the law, and that he has, by a solitary precedent, fixed what his superior could not? The most solemn decisions of the court of king’s bench are at one time made and at another time overruled. Why are our courts to be bound down by the weight of only one precedent? Is a precedent, like the laws of the Medes and Persians, never to be changed? This is to make the colonial precedent of more weight than is in England allowed to a precedent of Westminster Hall. To pursue the precedents more emphatically our own, let us advert to the sedition law, branded indeed with epithets the most odious, but which will one day be pronounced a valuable feature in our national character. In this we find not only the intent but the truth may be submitted to the jury, and that even in a justificatory manner. This, I affirm, was on common-law principles. It would, however, be a long detail to investigate the applicability of the common law to the Constitution of the United States. It is evident, however, that parts of it use a language which refers to former principles. The habeas corpus is mentioned, and as treason, it adopts the very words of the common law. Not even the Legislature of the Union can change it. Edition: current; Page: [421]Congress itself cannot make constructive or new treasons. Such is the general tenor of the Constitution of the United States, that it evidently looks to antecedent law. What is, on this point, the great body of the common law? Natural law and natural reason applied to the purposes of society. What are the English courts now doing but adopting natural law?

What have the court done here? Applied moral law to constitutional principles, and thus the judges have confirmed this construction of the common law; and therefore, I say, by our Constitution it is said the truth may be given in evidence. In vain it is to be replied that some committee met, and in their report gave it the name of amendment. For when the act says declared, I say the highest legislative bodies in this country have declared that the common law is, that the truth shall be given in evidence; and this I urge as a proof of what that common law is. On this point a fatal doctrine would be introduced if we were to deny the common law to be in force according to our federal Constitution. Some circumstances have doubtless weakened my position. Impeachments of an extraordinary nature have echoed through the land, charging as crimes things unknown, and although our judges, according to that Constitution, must appeal to the definitions of the common law for treasons, crimes, and misdemeanors, this, no doubt, was that no vague words might be used. If, then, we discharge all evidence of the common law, they may be pronounced guilty ad libitum, and the crime and offence being at once Edition: current; Page: [422]their will, there would be an end of that Constitution.

By analogy a similar construction may be made of our own Constitution, and our judges thus got rid of. This may be of the most dangerous consequences. It admonishes us to use with caution these arguments against the common law; to take care how we throw down this barrier which may secure the men we have placed in power; to guard against a spirit of faction, that great bane to our community, that mortal poison to our land. It is considered by all great men as the natural disease of our form of government, and therefore we ought to be careful to restrain that spirit. We have been careful that when one party comes in it shall not be able to break down and bear away the others. If this be not so, in vain have we made constitutions; for if it be not so, then we must go into anarchy, and from thence to despotism and to a master. Against this I know there is an almost insurmountable obstacle in the spirit of the people. They would not submit to be thus enslaved. Every tongue, every arm would be uplifted against it; they would resist, and resist, and resist, till they hurled from their seats those who dared make the attempt. To watch the progress of such endeavors is the office of a free press—to give us early alarm, and put us on our guard against the encroachments of power. This, then, is a right of the utmost importance; one for which, instead of yielding it up, we ought rather to spill our blood. Going on, however, to precedents, I find another in the words of Chief-Justice Jay, when pronouncing the Edition: current; Page: [423]law on this subject. The jury are, in the passage already cited, told the law, and the fact is for their determination; I find him telling them that it is their right. This admits of no qualification. The little, miserable conduct of the judge in Zenger’s case, when set against this, will kick the beam; and it will be seen that even the twelve judges do not set up, with deference, however, to their known ability, that system now insisted on. If the doctrine for which we contend is true in regard to treason and murder, it is equally true in respect to libel. For there is the great danger. Never can tyranny be introduced into this country by arms; these can never get rid of a popular spirit of inquiry; the only way to crush it down is by a servile tribunal. It is only by the abuse of the forms of justice that we can be enslaved. An army never can do it. For ages it can never be attempted. The spirit of the country, with arms in their hands, and disciplined as a militia, would render it impossible. Every pretence that liberty can be thus invaded is idle declamation. It is not to be endangered by a few thousand of miserable, pitiful military. It is not thus that the liberty of this country is to be destroyed. It is to be subverted only by a pretence of adhering to all the forms of law, and yet by breaking down the substance of our liberties; by devoting a wretched but honest man as the victim of a nominal trial. It is not by murder, by an open and public execution that he would be taken off. The sight of this, of a fellow-citizen’s blood, would at first beget sympathy; this would rouse into action, and the Edition: current; Page: [424]people, in the madness of their revenge, would break, on the heads of their oppressors, the chains they had destined for others.

One argument was stated to the court of a most technical and precise kind. It was that which relates to putting on the record a part only of the libel. That on this, no writ of error would lie. What was the answer given? That it could not be presumed judges could be so unjust. Why, it requires neither prejudice nor injustice, it may be matter of opinion. The argument goes to assert that we are to take for granted the infallibility of our judges. The court must see that some better reason must be given, that it must be shown that this consequence cannot ensue. If not, it is decisive against the argument. Surely this question deserves a further investigation. Very truly and righteously was it once the intention of the attorney-general that the truth should have been given in evidence. It is desirable that there should be judicial grounds to send it back again to a jury. For surely it is not an immaterial thing that a high official character should be capable of saying any thing against the father of this country.

It is important to have it known to the men of our country, to us all, whether it be true or false; it is important to the reputation of him against whom the charge is made, that it should be examined. It will be a glorious triumph for truth; it will be happy to give it a fair chance of being brought forward; an opportunity, in case of another course of things, to say that the truth stands a chance of being the criterion of justice. Notwithstanding, however, the contrary Edition: current; Page: [425]is asserted to be the doctrine of the English courts, I am, I confess, happy to hear that the freedom of the English is allowed; that a nation with king, lords, and commons, can be free. I do not mean to enter into a comparison between the freedom of the two countries. But the attorney-general has taken vast pains to celebrate Lord Mansfield’s character. Never, till now, did I hear that his reputation was high in republican estimation; never, till now, did I consider him as a model for republican imitation. I do not mean, however, to detract from the fame of that truly great man, but only conceived his sentiments were not those fit for a republic. No man more truly reveres his exalted fame than myself; if he had his faults, he had his virtues; and I would not only tread lightly on his ashes, but drop a tear as I passed by. He, indeed, seems to have been the parent of the doctrines of the other side. Such, however, we trust, will be proved not to be the doctrines of the common law nor of this country, and that in proof of this, a new trial will be granted.

FRAGMENT ON THE FRENCH REVOLUTION1

Facts, numerous and unequivocal, demonstrate that the present ÆRA is among the most extraordinary which have occurred in the history of human Edition: current; Page: [426]affairs. Opinions, for a long time, have been gradually gaining ground, which threaten the foundations of religion, morality, and society. An attack was first made upon the Christian revelation, for which natural religion was offered as the substitute. The Gospel was to be discarded as a gross imposture, but the being and attributes of god, the obligations of piety, even the doctrine of a future state of rewards and punishments, were to be retained and cherished.

In proportion as success has appeared to attend the plan, a bolder project has been unfolded. The very existence of a Deity has been questioned and in some instances denied. The duty of piety has been ridiculed, the perishable nature of man asserted, and his hopes bounded to the short span of his earthly state. Death has been proclaimed an eternal sleep; “the dogma of the immortality of the soul a cheat, invented to torment the living for the benefit of the dead.” Irreligion, no longer confined to the closets of conceited sophists, nor to the haunts of wealthy riot, has more or less displayed its hideous front among all classes.

Wise and good men took a lead in delineating the odious character of despotism, in exhibiting the advantages of a moderate and well-balanced government, in inviting nations to contend for the enjoyment of national liberty. Fanatics in political science have since exaggerated and perverted their doctrines. Theories of government unsuited to the nature of man, miscalculating the force of his passions, disregarding the lessons of experimental wisdom, have been projected and recommended. These Edition: current; Page: [427]have everywhere attracted sectaries, and everywhere the fabric of government has been in different degrees undermined.

A league has at length been cemented between the apostles and disciples of irreligion and of anarchy. Religion and government have both been stigmatized as abuses; as unwarrantable restraints upon the freedom of man; as causes of the corruption of his nature, intrinsically good; as sources of an artificial and false morality which tyrannically robs him of the enjoyments for which his passions fit him, and as clogs upon his progress to the perfection for which he was destined.

As a corollary from these premises, it is a favorite tenet of the sect that religious opinion of any sort is unnecessary to society; that the maxims of a genuine morality and the authority of the magistracy and the laws are a sufficient and ought to be the only security for civil rights and private happiness.

As another corollary, it is occasionally maintained by the same sect that but a small portion of power is requisite to government; that even this portion is only temporarily necessary, in consequence of the bad habits which have been produced by the errors of ancient systems; and that as human nature shall refine and ameliorate by the operation of a more enlightened plan, government itself will become useless, and society will subsist and flourish free from shackles.

If all the votaries of this new philosophy do not go the whole length of its frantic creed, they all go far enough to endanger the full extent of the mischiefs Edition: current; Page: [428]which are inherent in so wild and fatal a scheme, every modification of which aims a mortal blow at the vitals of human happiness.

The practical development of this pernicious system has been seen in France. It has served as an engine to subvert all her ancient institutions, civil and religious, with all the checks that served to mitigate the rigor of authority; it has hurried her headlong through a rapid succession of dreadful revolutions, which have laid waste property, made havoc among the arts, overthrown cities, desolated provinces, unpeopled regions, crimsoned her soil with blood, and deluged it in crime, poverty, and wretchedness; and all this as yet for no better purpose than to erect on the ruins of former things a despotism unlimited and uncontrolled; leaving to a deluded, an abused, a plundered, a scourged, and an oppressed people, not even the shadow of liberty to console them for a long train of substantial misfortunes, of bitter suffering.

This horrid system seemed awhile to threaten the subversion of civilized society and the introduction of general disorder among mankind. And though the frightful evils which have been its first and only fruits have given a check to its progress, it is to be feared that the poison has spread too widely and penetrated too deeply to be as yet eradicated. Its activity has indeed been suspended, but the elements remain, concocting for new eruptions as occasion shall permit. It is greatly to be apprehended that mankind is not near the end of the misfortunes which it is calculated to produce, and that it still portends Edition: current; Page: [429]a long train of convulsion, revolution, carnage, devastation, and misery.

Symptoms of the too great prevalence of this system in the United States are alarmingly visible. It was by its influence that efforts were made to embark this country in a common cause with France in the early period of the present war; to induce our government to sanction and promote her odious principles and views with the blood and treasure of our citizens. It is by its influence that every succeeding revolution has been approved or excused; all the horrors that have been committed justified or extenuated; that even the last usurpation, which contradicts all the ostensible principles of the Revolution, has been regarded with complacency, and the despotic constitution engendered by it slyly held up as a model not unworthy of our imitation.

In the progress of this system, impiety and infidelity have advanced with gigantic strides. Prodigious crimes heretofore unknown among us are seen. The chief and idol of ∗ ∗ ∗ [The rest is wanting.]

DEFENCE OF THE FUNDING SYSTEM1

The second feature of the plan as stated was to fund the entire debt, foreign and domestic, original and assumed.

The funding of the debt has been unexpectedly the theme of much declamation and invective. A confusion of ideas has been attempted to be produced among the ignorant. The funding with the assumption has been sometimes treated as the creation of the debt; at others the funding has been represented as its perpetuation, and as a direct attempt to fasten the bur-then irrevocably about the necks of the people. A particular ingredient in the plan proposed—the rendering the debt redeemable only in certain proportions—has been pressed to reinforce this argument and to prove the iniquitous tendency of the plan. The circumstance of qualified redeemability will be spoken of hereafter. Remarks here will be confined to the mere funding of the debt.

The Revolution, which gave us independence and secured us liberty, left upon the country as the price of it a considerable debt, partly contracted by Edition: current; Page: [431]the United States in their joint capacity, partly by the individual States in their separate capacities.

What was to be done with the debt? Was it to be wiped off with a sponge or was it to be provided for?

The first idea was the extreme of political profligacy and folly. Governments like individuals have burthens which ought to be deemed sacred, else they become mere engines of violence, oppression, extortion, and misery. Adieu to the security of property, adieu to the security of liberty! Nothing is then safe.

All our favorite notions of natural and constitutional right vanish. Every thing is brought to a question of power. Right is anathematized, excommunicated, and banished.

In the code of moral and political obligations, that of paying debts holds a prominent place. Tried by the test of utility, there is perhaps none of greater force or extent. Without it, no borrowing or lending, no selling or purchasing upon time; no credit, private or public; consequently a more cramped and less prosperous agriculture, fewer and more imperfect mechanic and other industrial arts; less and more embarrassed commerce; an immense contraction of national resource and strength. A most active power in the whole scheme of national happiness would be destroyed. A vast void would be created. Every thing would languish and wither.

No one will be hardy enough directly to dispute these positions or advocate the horrid doctrine of applying the sponge, but it was seen to lurk beneath some very insidious suggestions, often reiterated and urged with earnestness and exaggeration.

The debt had a great deal of alloy in it. A great part of it had been produced for no adequate value. To pay it, therefore, involved injustice and injury to the public.

The real state of the fact which is the basis of this suggestion shall be discussed in another place. Here it shall be taken for granted that it was well founded.

But what were the causes? The bad arrangement and delinquencies of government itself; the infidelity of its own agents; the enhancement of price from the demand and scarcity incident to a long and exhausting war; the embarrassments and risks to individuals from a depreciating currency; the eventual hazards inseparable from a state of revolution. These were the essential causes of the alloy, if any, in the debt.

Was any one or all of them a good plea to the government not to pay? Was it just that the whole debt should be cancelled because a fifteenth, or a tenth, or a fifth of it had been contracted without adequate consideration? Was it equitable that those persons who had yielded their personal services, lent their money, and parted with their property to the government, upon fair and reasonable compensation and values, should lose their rights because others may have extorted or imposed; because the disorders in the public arrangements had prevented proper liquidations of accounts and had let in unfounded claims; because the infidelity of the government’s own agents had produced dilapidations and had emitted evidences of debt without value or for little value? Was it reasonable to object Edition: current; Page: [433]to compensations and allowances predicated upon a state of war, revolution, disorder, and hazard, because they were not agreeable to a standard adjusted to a state of peace, established government credit, and safety? An individual may plead duress and compulsion as an objection to the performance of his engagements; but this is impossible to a government. Individuals cannot exercise over it that species of control which may be demonstrated as compulsion. It may oppress, but it cannot be oppressed. Circumstances which, according to the laws, enable individuals to demand high prices for their property are never arguments of compulsion to vitiate the contract.

Where would an objection of this kind lead? War, insurrection, every great disturbance of the social order is apt to augment price. Is there constantly on the return of peace and order to be a revision and reliquidation or a rejection of the contracts? How long would governments under such a system obtain any success but by exactions and violence in similar emergencies?

It is plain that such an objection ought to be discarded as a contemptible and pernicious subterfuge. It was in the view both of justice and policy indispensable to provide fairly for the debt. ’T is afflicting that there should be a state of public opinion or feeling, however limited, which should encourage a man to dare to expect to give currency to a contrary insinuation, or to throw any degree of unpopularity upon a fair provision for the debt.

Another weapon indirectly used against a provision Edition: current; Page: [434]for the debt was the fact of alienations of it at low values.

But how could this supersede the obligation of the government to pay or provide? The government had received the benefit of the services, loans, or supplies which were the consideration of its contracts. These contracts were in their constitution alienable and assignable. The proprietors had a full right to part with them at any value they pleased, or even to give them away. What was it to the government how they disposed of them? By what rule of reason, law, or right was the government dispensed, by alienations, provident or improvident, of the original proprietors, from paying its debts and performing its engagements?

It is evident that the only colorable question which could be raised was not whether the debt should be provided for, but for whose benefit the provision should accrue—that of the original proprietors or of their alienees—a question which will be examined in another place.

The obligation to provide for the debts of the benefit of those who were best entitled was indisputable. No argument can enforce it; no man who has the least regard for his reputation will hazard a denial of it.

But the anonymous publications have, by insinuations, attempted to raise doubts and prejudices. Not the mode merely of providing has been attacked, but by implication any provision whatever. The debt itself has been sometimes treated as a nuisance, as a morbid excrescence on the body politic, as the Edition: current; Page: [435]creature of a wicked combination to create a monied aristocracy and undermine the republican system. A debt created by that very revolution which gave us the republican system has been artfully presented in these odious colors to the dislikes of a spirit of jealousy and avarice, and those who were disposed to uphold the integrity and credit of the nation have been exhibited as conspirators against democratic principles. It is afflicting that there should be a state of public information, opinion, or feeling which should encourage any man to attempt to traffic for popularity by means so absurd and so base as these. If they could succeed we must renounce those pretensions to intelligence and light as a people which we claim hitherto on such just grounds; we must soon after renounce that republican system of which these men affect to be so fond.

The plainest maxims of common sense and common honesty establish that our government had no option but to make a fair provision for the debt. Justice, true policy, character, credit, interest, all spoke on this head a uniform and unequivocal language. Not to have listened to it would have been to have prostrated every thing respectable among nations. It would have been an act of suicide in the government at the very commencement of its existence. It would not have strangled the serpents which threatened, but it would have strangled itself.

The only possible question was about the nature of the provision. And to this point indeed were confined all the questions formally raised, though indirectly it has been endeavored to excite prejudices Edition: current; Page: [436]in the public mind against the debt itself, and consequently against all provision for it.

But among the questions raised as to the nature of the provision, I neither recollect nor can trace that among the legislative parties, while the subject was under discussion, there was any party against the principle of funding the debt as contradistinguished from other modes of providing.

Indeed, but three options occurred: to pay off the principal and interest at once, which was impossible; to provide annually for the interest and occasionally for reimbursing as much of the principal as the public resources permitted; to fund the debt, or, in other words, to pledge specified and adequate funds for the regular payment of interest till the principal was reimbursed, and, as an auxiliary measure, to constitute and pledge adequate funds for the reimbursement of the principal.

The last was conformable to the sense of America repeatedly and solemnly expressed. Different acts of Congress under the old Confederation embrace and enforce the propriety of this measure, and frequently with unanimity. The States separately had all sanctioned it. The objectors were a few solitary individuals, neither numerous nor significant enough by weight of talents or character to form a party.

In proposing, therefore, to fund the debt, I considered myself not only as pursuing the true principles of credit and the true policy of the case, but the uniform general sense of the Union.

I had heard no lisp from any description of men in the national legislature of an objection to this idea, Edition: current; Page: [437]and accordingly when the plan proposed was under discussion there appeared none in opposition to it.

The clamors therefore which have been subsequently raised on this head and patronized more or less directly by a whole party are not less strong indications of the disingenuousness of party spirit than of an immaturity of ideas on the subject of public credit.

The substance of the argument against the funding systems is that by facilitating credit they encourage to enterprises which produce expense; by furnishing in credit a substitute for revenue, they prevent the raising contemporarily with the causes of expense as much as might be raised to avoid the unpopularity of laying new taxes, and in both ways occasion a tendency to run in debt, consequently a progressive accumulation of debt and its perpetuation—at least till it is crushed beneath the load of its own enormous weight.

An analysis of this argument proves that it turns upon the abuses of a thing intrinsically good.

A prosperous state of agriculture, commerce, and manufactures nourishes and begets opulence, resource, and strength. These, by inspiring a consciousness of power, never fail to beget in the councils of nations, under whatever form of government, pride, ambition, and a sentiment of superiority. These dispositions lead directly to war, and consequently to expense and to all the calamities which march in the train of war. Shall we, therefore, reprobate and reject improvements in agriculture, commerce, and manufactures?

Again the same causes leading to opulence, increasing the means of enjoyment, naturally sharpen the appetite for it, and so promote luxury, extravagance, dissipation, effeminacy, disorders in the moral and political system, convulsions, revolutions, the overthrow of nations and empires. Shall we, therefore, on this account renounce improvements in agriculture, commerce and manufactures?

Again, science, learning, and knowledge promote those momentous discoveries and improvements which accelerate the progress of labor and industry, and with it the accumulation of that opulence which is the parent of so many pleasures and pains, so many blessings and calamities. Shall we, therefore, on this account explode science, learning, and knowledge?

Again, true liberty, by protecting the exertions of talents and industry, and securing to them their justly acquired fruits, tends more powerfully than any other cause to augment the mass of national wealth and to produce the mischiefs of opulence. Shall we, therefore, on this account proscribe liberty also?

What good, in fine, shall we retain? ’T is the portion of man, assigned to him by the eternal allotment of Providence that every good he enjoys shall be alloyed with ills, that every source of his bliss shall be a source of his affliction—except virtue alone, the only unmixed good which is permitted to his temporal condition.

But shall we on this account forego any advantage which we are fitted to enjoy? Shall we put in practice Edition: current; Page: [439]the horrid system of the detestable Robespierre? Shall we make war upon science and its professors? Shall we destroy the arts useful as well as pleasurable? Shall we make knowledge a crime, ignorance a gratification? Shall we lay in ruins our towns and deform the face of our fields? Shall we enchain the human mind and blunt all its energies under the withering influences of privation and the benumbing strokes of terror? Shall we substitute the unmingled misery of a gloomy and destructive despotism to the alternate sunshine and storms of liberty?

The very objection to funding systems makes their panegyric. “They facilitate credit”; they give energy, solidity, and extent to the credit of a nation; they enable it in great and dangerous emergencies to obtain readily and copiously the supplies of money of which it stands in need for its defence, safety, and the preservation or advancement of its interests. They enable it to do this, too, without crushing the people beneath the weight of intolerable taxes; without taking from industry the resources necessary for its vigorous prosecution; without emptying all the property of individuals into the public lap; without subverting the foundation of social order.

Indeed, war, in the modern system of it, offers but two options—credit or the devastation of private property. ’T is impossible merely with that portion of the income of the community which can be spared from the wants, conveniences, and industrious pursuits of individuals to face the expenses of a serious war during its progress.

There must be anticipation by credit, or there must Edition: current; Page: [440]be a violent usurpation of private property. The state must trench upon the capital instead of the revenue of the people, and thus every war would involve a temporary ruin.

’T is the signal merit of a vigorous system of national credit, that it enables a government to support war without violating property, destroying industry, or interfering unreasonably with individual enjoyments. The citizens retain their capital to carry on their several businesses and a due proportion of its produce for obtaining their usual comforts. Agriculture, commerce, and manufactures may receive some check, but they receive no serious wound; their stamina remain, and, on peace returning, they quickly resume their wonted elasticity.

War, by the use of credit, becomes less a scourge and loses a great portion of its sting.

Will it be said that equal credit may be established without funding systems? Then I answer the objection made to those systems will apply to that mode whatever it is by which this equal credit is obtained. ’T is credit which, giving extraordinary resources to government encourages to enterprises that produce expense, and which, furnishing a substitute for revenue, relaxes the efforts of taxation, and prevents the raising for the current expenditure as much as might be raised in this way. However that credit is acquired the same consequences follow—the same evils ensue.

Will it be said that without funding systems not an equal but a competent credit might be secured? I answer by asking what is this competent credit? Is Edition: current; Page: [441]it the power of obtaining by loans all that the state may want for extraordinary exigencies, more than it can conveniently and without oppression or disorder raise on the citizens? If any thing less it is plainly not enough, and if it is this it is as much as funding systems effect. The how much in each case to be obtained in loans beyond what can be conveniently raised in taxes depends on the pressure of the occasion and the opinion of the legislature of the day. And this opinion will be affected by the temper of the times—the degree of popular favor or disfavor towards the object of expense and the genius of the government. A credit is not good which does not extend the power of the government to borrow to the utmost limit of the power of individuals to lend.

Thus it appears that the great objection to funding systems resolves itself into an objection to credit in the abstract, and if listened to drives us to the alternative of a mean surrender of our rights and interests to every enterprising invader, or to the oppression of the citizens and destruction of capital and industry in every war in which we should be engaged, and in the end from the insupportableness of that situation to the same surrender of our rights and interests.

Indeed as far as it is the attribute of funding systems to invigorate credit, it is their tendency in an important particular to diminish debt. This relates to the lower or higher rate of interest at which money is borrowed according to the state of credit. A government which borrows 100 dollars at three per cent. owes in fact a less debt than a government Edition: current; Page: [442]which is obliged to borrow the same sum at five per cent. Interest is always a part of the debt, and it is self-evident that the ultimate discharge of one which bears five per cent. will exhaust more money or income than that of one which only bears three per cent. This principle runs through all the public operations in which credit is concerned, and the difference in the result of the public expenditures, and consequently its debts, from a perfect or an imperfect state of credit, is immense.

Every state ought to aim at rendering its credit—that is, its ability to borrow—commensurate with the utmost extent of the lending faculties of the community and of all others who can have access to its loans. ’T is then that it puts itself in a condition to exercise the greatest portion of strength of which it is capable, and has its destiny most completely in its own hands. ’T is then that it is able to supply all its wants, not only in the most effectual manner, but at the cheapest rate. ’T is then that the various departments of its industry are liable to the least disturbance and proceed with the most steady and vigorous motion. An ignorance which benights the political world and disputes the first principles of administration is requisite to bring this position for a moment into question. The principle on which such a question could be founded would equally combat every institution that promotes the perfection of the social organization; for this perfection in all its shapes, by giving a consciousness of strength and resource and inspiring pride, tends to ambitious pursuits, to war, expense, and debt.

On this question, as on most others, evils are traced to a wrong source. Funding systems, as the engines of credit, are blamed for the wars, expenses, and debts of nations. Do these evils prevail less in countries where either those systems do not exist or where they exist partially and imperfectly? Great Britain is the country where they exist in most energy. Her wars have no doubt been frequent, her expenses great, and her debts are vast. But is not this, with due allowance for difference of circumstances, the description of all the great powers of Europe—France, Spain, Austria, Russia, Prussia? Are they not as frequently at war as Great Britain, and as often of their own choice? Have not their expenses compared with their means and the state of society been as great? Have they not all, except Prussia, heavy debts?

The debt of France brought about her revolution. Financial embarrassments led to those steps which led to the overthrow of the government and to all the terrible scenes which have followed.

Let us then say, as the truth is, not that funding systems produce wars, expenses, and debts, but that the ambition, avarice, revenge, and injustice of man produce them. The seeds of war are sown thickly in the human breast. It is astonishing, after the experience of its having deluged the world with calamities for so many ages, with how great precipitancy and levity nations still rush to arms against each other.

Besides what we see abroad, what have we recently witnessed among ourselves? Never was a Edition: current; Page: [444]thing more manifest than that our true policy lay in cultivating peace with scrupulous care. Never had a nation a stronger interest. Yet how many were there who directly, and indirectly raised and joined in the cry of war. Sympathy with one nation and animosity against another, made it infinitely difficult for the government to steer a course calculated to avoid our being implicated in the volcano, which shook and overwhelmed Europe. Vague speculations about the cause of liberty seconded by angry passions, had like to have plunged this young country, just recovering from the effects of the long and desolating war, which confirmed its revolution, just emerging from a state little short of anarchy; just beginning to establish system and order, to revive credit and confidence, into an abyss of war, confusion, and distress!

After all the experience, which has been had upon the point, shall we still charge upon funding systems evils which are truly chargeable upon the bad and turbulent passions of the human mind?

Peruse the history of Europe from its earliest period, were wars less frequent or pernicious before the system of credit was introduced than they have been since? They were more frequent and more destructive though perhaps not of as long duration at one time.

But they did not equally produce debt. This is true, yet it remains to compare the evils of debt with those which resulted from the antecedent system of war—the devastations and extortions, the oppressions, and derangements of industry in all its Edition: current; Page: [445]branches; and it remains to consider whether expedients may not be devised, which may secure to nations the advantages of credit and avoid essentially its evils. If this shall be practicable, the argument in favor of the system of credit has no counterpoise and becomes altogether conclusive.

Credit may be called a new power in the mechanism of national affairs. It is a great and a very useful one, but the art of regulating it properly, as is the case with every new and great contrivance, has been till lately imperfectly understood. The rule of making contemporary provision for the extinguishment of principal as well as for the payment of interest in the act of contracting new debt, is the desideratum—the true panacea.

But this, like most others, is not an absolute but a relative question. If it were even admitted that the system of anticipation by credit is, in the abstract, a bad one, it will not follow that it can be renounced by any one nation while nations in general continue to use it. It is so immense a power in the affairs of war, that a nation without credit would be in great danger of falling a victim in the first war with a power possessing a vigorous and flourishing credit.

What astonishing efforts has credit enabled Great Britain to make? What astonishing efforts does it enable her at this very moment to continue? What true Englishman, whatever may be his opinion of the merits and wisdom of the contest in which his country is engaged, does not rejoice that she is able to employ so powerful an instrument of warfare? However he may wish for peace, he will reflect that Edition: current; Page: [446]there must be two parties to the pacification, and that it is possible the enemy may either be unwilling to make peace, or only willing to make it on terms too disadvantageous and humiliating.

He must, therefore, cherish the national credit, as an engine by which war, if inevitable can be maintained, and by which, from that very possibility, a better peace can be secured.

It is remarkable too that Great Britain, the only power which has uniformly cultivated an enlightened and exact plan of national credit at a juncture so critical as the present, continues to uphold the various branches of her commerce and industry in great energy and prosperity, and will in the end tax her adversary, in exchange for the products of her industry, with a large proportion of the expenses of the actual war.

The commerce and manufactures of France are so prostrated that this consequence cannot but follow. For some years to come, after peace, she must be customer to Great Britain for vast supplies.

But let us still return to and keep in view this very material point already stated. ’T is credit in general, not funding systems in particular, against which the objections made, as far as they have foundation, lie. However obtained, it leads to exactly the same consequences, which are charged on funding systems, which are no otherwise answerable for those consequences than as they are means of credit.

Any provision, therefore, for our revolution debt, which from its justice and efficiency would have given Edition: current; Page: [447]satisfaction and inspired confidence, would equally have conferred national credit, and would have been equally liable to the evils of an abuse of credit.

The dilemma was either to make and continue a just and adequate provision for the debt, till it was discharged, and thereby establish credit, and incur the chances of the evils incident to its abuse; or not to make a just and adequate provision for the debt, and so commit national injustice, incur national dishonor and disgrace, and, it may be added, shake and weaken the foundation of property and social security.

Thus we may discard from the examination of the subject, the general question whether the system of credit (and as a means of credit, the funding of debts) is a salutary or a pernicious system. It could only with propriety arise with regard to the policy of the government in future cases—that is, how it would or would not in future emergencies resort to anticipation by credit, or find immediate resources in contemporary contributions of the community and in the spoils of war. It could never be properly raised as to a debt previously contracted. The objections to a system of credit could never, with an honest man, justify a moment’s hesitation about the obligation and propriety of a just and efficacious provision for a debt previously incurred, either from a real necessity or from a past neglect of the government to attend duly to the impolicy of employing credit and of contracting debt.

A government which does not rest on the basis of justice rests on that of force. There is no middle Edition: current; Page: [448]ground. Establish that a government may decline a provision for its debts, though able to make it, and you overthrow all public morality, you unhinge all the principles that must preserve the limits of free constitutions, you have anarchy, despotism, or what you please, but you have no just or regular government.

In all questions about the advantages or disadvantages of national credit, or in similar questions which it has been seen may be raised (and it may be added have been raised) with respect to all the sources of social happiness and national prosperity, the difference between the true politician and the political empyric is this: the latter will either attempt to travel out of human nature and introduce institutions and projects for which man is not fitted and which perish in the imbecility of their own conception and structure, or without proposing or attempting any substitute they content themselves with exposing and declaiming against the ill sides of things, and with puzzling and embarrassing every practicable scheme of administration which is adopted. The last indeed is the most usual because the easiest course, and it embraces in its practice all those hunters after popularity who, knowing better, make a traffic of the weak sides of the human understanding and passions.

The true politician, on the contrary, takes human nature (and human society its aggregate) as he finds it, a compound of good and ill qualities, of good and ill tendencies, endued with powers and actuated by passions and propensities which blend enjoyment Edition: current; Page: [449]with suffering and make the causes of welfare the causes of misfortune.

With this view of human nature he will not attempt to warp or disturb its natural direction, he will not attempt to promote its happiness by means to which it is not suited, he will not reject the employment of the means which constitute its bliss because they necessarily involve alloy and danger, but he will seek to promote its action according to the bias of his nature, to lead him to the development of his energies according to the scope of his passions, and erecting the social organization on this basis he will favor all those institutions and plans which tend to make men happy according to their natural bent, which multiply the sources of individual enjoyment and increase national resources and strength, taking care to infuse in each case all the ingredients which can be devised as preventives or correctives of the evil which is the eternal concomitant of temporal blessing.

Thus, observing the immense importance of credit to the strength and security of nations, he will endeavor to obtain it for his own country in its highest perfection, by the most efficient means; yet not overlooking the abuses to which, like all other good things, it is liable, he will seek to guard against them by prompting a spirit of true national economy, by pursuing steadily, especially in a country which has no need of external acquisition, the maxims of justice, moderation, and peace, and by endeavoring to establish, as far as human inconstancy allows, certain fixed principles in the administration of the finances Edition: current; Page: [450]calculated to secure efficaciously the extinguishment of debt as fast at least as the public exigencies of the nation are likely to occasion the contracting of it. These, I can truly say, are the principles which have regulated every part of my conduct in my late office.

And as a first step to this great result, I proposed the funding of the public debt.

This quality of funding appeared to me essential in the plan of providing, for different reasons.

• 1.First it appeared to me advisable that the nature of the provision should be such as to give satisfaction and confidence by inspiring an opinion of security to the creditors. This was important not only as it regarded their advantage, but as it regarded the public interest, the national credit was intimately connected with that satisfaction and confidence. They tended besides to produce another important effect which will be noticed hereafter.
• 2.

  It was desirable to guard the government and the creditors against the danger of inconstancy in the public councils. The debt being once funded, it would require the concurrence of both branches of the legislature and of the President, or of two thirds of both branches overruling the opposition of the President, to shake the provision. Of this there was a moral impossibility—at least the highest degree of improbability. To make a provision annually would require the like concurrence in its favor; of course, would be continually liable to be defeated by improper views on either of the branches or departments. Whoever has attended to the course of our public councils, and to the dispositions which have Edition: current; Page: [451]been manifested by a powerful party in them, must be sensible that danger in this case was not ideal. There was good ground to apprehend that the accidental result of a single election and the accidental prevalency of ill-humors in parts of the community might violate the justice and prostrate the credit of the nation.

  It is the part of wisdom in a government, as well as in an individual, to guard against its own infirmities; and, having taken beforehand a comprehensive view of its duty and interest, to tie itself down by every constitutional precaution to the steady pursuit of them.

• 3.It appeared important to give all practicable solidity and stability to the funds or stock which constituted the debt. The funding of the debt was essential to this end. This is but an inference from the preceding remarks. It was to result from obviating the danger of fluctuating councils concerning the debt from the satisfaction and confidence of the creditors arising from an opinion of security, from the constant estimation in which that opinion of security would cause it to be holden, not only by the creditors, but by all other classes of the community, and by foreigners.

One effect of this was to accelerate the period which would terminate an irregular and excessive spirit of speculation in the funds. It is evident that this must have been in proportion to the causes calculated to produce fluctuation in the public opinion with regard to the value of the funds. Insecurity, the chance of the provision being interrupted or deteriorated, Edition: current; Page: [452]occurring at every new period of making it, was a more fruitful source than any other of that fluctuation of opinion. The degree of this being always incalculable would have given the utmost scope to imagination, to the acts and intrigues of stock-jobbers, and must have kept the funds constantly an object of the most gambling speculation.

The moment opinion, regulated by experience, had liquidated the value of the funds, speculation would be confined within the limits necessary to give them due activity and value. The immutability of the provision by furnishing better data of calculation, as well as giving security, would hasten that moment, and once arrived it would continue.

The funds in this State would become as they ought to be an object of ordinary and temperate speculation like any other article, whether of commerce, manufactures, or agriculture. While on the opposite plan they would be as long as they existed a mere game of chance and a subject of the most gambling speculation.

It may be remarked that it is now a considerable time since the public stock has reached the desirable point and put an end to the excessive spirit of speculation. This, for some time past, has been far more active, even to intemperateness in other pursuits, in trading adventures and in lands. And it is curious to observe how little clamor there is against the spirit of speculation in its present direction; though it were not difficult to demonstrate that it is not less extravagant or as pernicious in the shape of land-jobbing than in that of stock-jobbing. But many Edition: current; Page: [453]of the noisy patriots who were not in condition to be stock-jobbers are land-jobbers, and have a becoming tenderness for this species of extravagance. And virtuous, sensible men, lamenting the partialities of all over-driven speculation, know at the same time that they are inseparable from the spirit and freedom of commerce and that the cure must result from the disease.

Another important effect of funding the debt was the quick appreciation of the funds from the same opinion of security. This was calculated to save immense sums to the country. Foreigners else would have become the proprietors of the stock at great undervalues, to the loss of millions to the holders and to the country. The loss to the holders is perceived at once, but the loss to the country, though an obvious consequence, has not been equally palpable to all.

But a little reflection and combination must make it evident to the meanest capacity. If the sale of any article is made at an undervalue by one citizen to another of the same country, what one loses the other gains, and containing within its own bosom the gainer as well as the loser is neither the richer nor the poorer by the operation. It possesses exactly the same property which it had before the bargain between its two citizens. But when the citizen of one country sells to the citizen of another country residing abroad any article at an undervalue, a more valuable thing goes out of the country in exchange for a less valuable thing which is brought into it, and the state whose citizen is the seller loses in exact Edition: current; Page: [454]proportion to the difference of value of the things exchanged, whether commodity for commodity, or commodity for money—that is, the state loses exactly what its citizen loses by the disadvantageous sale.

It has been imagined, however, that if our debt had not been funded, its precariousness would have been a security against transfers to foreigners. But waiving the observation that this precariousness, which it is supposed would deter foreigners, would imply a depreciation and discredit of the funds, and consequently a bad state of national credit, it may be replied that the effect expected from it would not have been realized.

Foreigners who possessed redundant capitals would still have devoted a part of them to play in this precarious stock, to buy and to sell again. And, though permanent transfers of the stock might not have taken place in the same degree, yet it is probable more property of the country in another shape might have been extracted by the force of this gambling capital acting upon the occasional necessities and sporting with the occasional confidences of our citizens.

Another expedient has been mentioned for preventing alienations, and consequently loss by alienations to foreigners. This was to forbid the alienations to foreigners; in other words, to render them incapable of holding the debt.

But this expedient was inadmissible, and would have been ineffectual.

• 1.The original debt was alienable without restriction, and foreigners had actually become the Edition: current; Page: [455]bona-fide proprietors of a considerable sum of it which they had an indisputable title to a provision for, and it was not easy in many cases to distinguish between past and future acquisition, without danger of interfering with rights already acquired.
• 2.The original debt being in its constitution alienable without restriction, which was an ingredient of value to the holder, it could not have been taken away without breach of contract, unless with his consent upon an equivalent, and this would have increased the embarrassment of such a modification of the debt with consent of the creditors as would consist with the contract and with the immediate requisite accommodation of the government.
• 3.It was ineligible, as calculated to diminish the value of the stock. All restraints upon alienation, by fettering the free use and circulation of an article of property, naturally lessen its value. As far as foreign capital could have been excluded from the stock market, the effect would have been sensible upon it. It is evident that the value of an article must depend materially on the quantity of capital employed in its negotiations, and it is known that foreign capital has formed and must have formed a considerable portion of that which was employed in the funds.

But, in fact, this exclusion would not have taken place. Foreigners under the cover of citizens would have continued to speculate in the funds, but they would have given considerably less for them on account of the additional risk from the necessity of that cover. And it might have happened that fewer Edition: current; Page: [456]of those solid and discreet capitalists, who meant to hold, would have engaged in the business, and more of those who meant a temporary profit proportioned to the risk, and, in the end, the probability was the price of stock would have been much lower and less steady, and the foreigners would have had as much of the property either in the shape of stock in trust or in equivalents resulting from the traffic in it as if there was not restriction, and for a less compensation to the country. This has been exemplified in the case of our waste-lands in those States which do not permit foreigners to hold. The only effect, then, of the restriction would have been to depreciate the stock of the country, the thermometer of its credit, without any counterbalancing good.

Indeed, if the exclusion of foreigners could have been effected, cui bono? What harm is there that foreigners should speculate in our funds, if they give full value for them? Will not the money they give for the stock, employed in extending our commerce, agriculture, manufactures, roads, canals, and other ameliorations, more than indemnify the country for the interest which they will receive upon the stock, till the principal is reimbursed? In a country with so much improvable matter in a crude state as ours it cannot be doubted that capital employed in those ways will incomparably more than repay the interest of the money employed.

But to overthrow this important consideration, it is alleged that the money acquired by the sales of stock to foreigners would not be employed on the objects which have been mentioned, but would be Edition: current; Page: [457]dissipated in the enjoyments of luxury and extravagance and sent abroad again to pay for these objects, to the loss pro tanto of the country?

This suggestion was not founded in probability, nor has been warranted by the fact. It was true that a large increase of active capital and augmentation of private fortunes would beget some augmentation of expense among individuals, and that a portion of this expense would be laid out on foreign articles of luxury. But the proportion which this employment of the new capital would bear to the part of it which would be employed on useful and profitable objects, would be and has been inconsiderable. Whoever will impartially look around will see that the great body of the new capital created by the stock has been employed in extending commerce, agriculture, manufactures, and other improvements. Our own real navigation has been much increased, our external commerce is carried on much more upon our own capitals than it was; our marine insurances in a much greater proportion are made by ourselves; our manufactures are increased in number and carried on upon a larger scale. Settlements of our waste-land are progressing with more vigor than at any former period. Our cities and towns are increasing rapidly by the addition of new and better houses. Canals are opening, bridges are building with more spirit and effect than was ever known at a former period. The value of lands has risen everywhere.

These circumstances (though other causes may have co-operated) it cannot be doubted by a Edition: current; Page: [458]well-formed or candid man are imputable in a great degree to the increase of capital in public debt, and they prove that the predictions of the dissipation in luxurious extravagances have not been verified. If a part has gone in that way, this loss has not been considerable enough to impair the force of the argument. The universal vivification of the energies of industry has laid the foundation of benefits far greater than the interests to be paid to foreigners can counterbalance as a disadvantage.

Indeed, it is a question whether there has not been an incidental advantage equivalent to the incidental disadvantage of an increased expense in foreign articles. It is the restoration of stock alienated to the country by the emigration to it of foreign settlers with capitals. It may be said that this advantage is foreign to the operation of the plan—it arises from other causes out of the state of Europe. But it is to be remembered that collateral facilities, when dispositions to a certain event exist, contribute to give them an effect which they would not have without those facilities. The convenient mode of transferring property to this country, through the medium of our stock in the markets of Europe, has materially promoted the emigration of persons possessed of capital. And if our government continues to operate in a manner which will maintain the confidence of foreigners, it is a question whether the possession of large sums in our funds will not bring over most of the proprietors, so as to reinvest the country with the alienated stock, and thus procure it a double compensation on foreign alienations.

A third important effect of giving solidity and stability to the stock by funding the debt, was the rendering it useful as capital. Those who may deny that it has even this tendency in defiance of the most manifest facts, cannot dispute that it must have it, if at all, in proportion to the security of the footing upon which it stands.

The opinion of its being a safe and substantial property is essential to that ready marketable quality which will render it expedient to invest unemployed monies in it till the opportunity of employment occurs, and certain that it can be brought into action when the opporuntity arrives.

To be certain of its operation as active capital it is only necessary to consider that it is property which can almost at any moment be turned into money. All property is capital; that which can quickly and at all times be converted into money is active capital. It is nearly the same thing as if the possessor had an equal sum of money in hand. The profound and ingenious Hume thus describes its effects.

∗ ∗ ∗ ∗ ∗ ∗

Who doubts that a man who has in his desk 10,000 dollars in good bank notes, has that sum of active capital? Who doubts any more, though there be two steps in the process, that a man who has in his hand 10,000 dollars of the notes of merchants of unquestionable solidity and credit, which he can at any moment discount at the banks, has an equal sum, bating the price of discount, of active capital? Who can doubt any more that the possessor of 10,000 dollars of funded stock which he can readily carry Edition: current; Page: [460]into the market and sell for 10,000 dollars of these merchants’ or bank notes, or gold and silver, is equally possessor of so much active capital?

In this country, where the sum of gold and silver, the great organ of alienation and circulation, is comparatively more limited than in Europe, the certainty of an immediate conversion of stock into money is not as great as in some of the great stock markets of Europe; but the difference is not so material as to prevent the effect being substantially the same.

When the stock is unfunded and precarious, its salableness is proportionably fluctuating and uncertain. So much so, that it does not possess the quality of active capital, but inverts the effect by becoming a mere subject of gambling speculation. This was noticed in my first report on the finances in these words. ∗ ∗ ∗

Some theoretical writers on political economy have contested the effect of public funds as capital.

Their objections, and an answer to them are to be found in my report on manufactures. ∗ ∗ ∗

It may be useful to add some further illustrations. Trace the progress of a public debt in a particular case.

The government borrows of an individual one hundred dollars in specie, for which it gives its funded bonds. These hundred dollars are expended on some branch of the public service. It is evident they are not annihilated; they only pass from the individual who lent, to the individual or individuals to whom the government has disbursed them. They Edition: current; Page: [461]continue, in the hands of their new masters, to perform their usual functions, as capital. But besides this, the lender has the bonds of the government for the sum lent. These from their negotiable and easily vendible nature, can at any moment be applied by him to any useful or profitable undertaking which occurs; and thus the credit of the government produces a new and additional capital, equal to one hundred dollars, which, with the equivalent for the interest on that sum, temporarily diverted from other employments while passing into and out of the public coffers, continues its instrumentality as a capital, while it remains not re-imbursed.

When, indeed, the money borrowed by the government is sent abroad to be expended, the effect above described does not happen, unless the expenditure is for a purpose which brings a return. But this is a partial exception to the general rule.

It has been said that from the sum of the debt acting as capital is to be deducted the quantity of money actually employed in the negotiation of the funds. To conceive well of the immense disparity between the capital negotiated and the organ of negotiation, money, it may be useful to advert to the small quantity of specie in certain nations of immense capital in fixed and negotiable property. The specie of Great Britain, for example, is computed as from 15,000,000 to 20,000,000 stg. How small a sum to be the organ of all the alienations of landed property, ships, merchandise, manufactures, public funds, and of insurances and other pecuniary negotiations! The capital value of its land is estimated Edition: current; Page: [462]at ∗ ∗ ∗ The public funds amount to near ∗ ∗ ∗ The objects of foreign and domestic commerce, including manufactures and other casual objects, cannot be estimated at less than ∗ ∗ ∗ Yet the small sum of from 15,000,000 to 20,000,000 of specie is directly and indirectly the instrument of all the alienation of this prodigious mass. This gives us an idea of the vast activity of the power.

A simple, concise, and yet comprehensive view of the effect of the funds as capital is comprised in this exhibition of it. To the mass of active capital resulting from the property and credit of all the individuals of the nation, is added another mass constituted as the joint credit of the whole nation, and existing in the shape of the government stock, which continues till that stock is extinguished by redemption or reimbursement. Is it not evident that this throwing into the common stock of individual operations the credit of the nation, must increase and invigorate the powers of industrious enterprise?

See what a wonderful spectacle Great Britain exhibits. Observe the mature state of her agricultural improvements under the auspices of large capitals employed to that end. Consider the extent of her navigation and external commerce. Note the huge and varied pile of her manufactures. See her factors and agents spread over the four quarters of the globe, doing a great part of the business of other nations by force of capital. View the great extent of her marine insurances attracting to her a considerable portion of the profits of the commerce of most other nations. View her, in fine, the creditor of the world.

Consider withal what her population is, that all the gold and silver she contains probably falls short of 20,000,000 stg., then ask whether there be not a strong presumption that her public funds are a principal pillar of this astonishing edifice, as her own men of business generally believe. But another and a powerful motive to the funding of the debt was that it would serve as one of the equivalents to be offered to induce the public creditors to consent voluntarily to those modifications of their claims which the public accommodation required.

The public debt of this country, as I stated in my first report upon the finances, was fifty-four millions.

There was no obligation to do more than make provision annually for the debt. The funding of it was no part of the original contract.

This, therefore, superadded a material advantage for the creditors to their primitive rights. The additional security was a reasonable ingredient or commutation to be proposed for something to be relinquished.

Among individuals, money lent for a length of time on personal security frequently carries a higher interest than if lent on real security. The change from one to the other would be a fair ground for a stipulation to lower the interest as the consideration. A government need not fear imputations on its honor or loss of credit by regulating itself in its money concerns according to the rules which prevail among fair individuals.

The third feature of my plan was to provide, in the first instance, for the foreign part of the general Edition: current; Page: [464]debt in exact conformity with the contracts concerning it.

The propriety of this has been uncontested and speaks for itself. It would have been highly inexpedient and would have exposed our credit abroad to have perplexed our creditors with any new propositions concerning their debts. Even the measure of endeavoring to transfer the foreign debt to a domestic foundation, which has been subsequently proposed, upon equivalents to be given, would have been premature till confidence had been inspired by an experience of the efficacy of the provision.

The fourth feature was “to take, as the basis of the provision for the domestic part of the general debt, the contracts with the creditors as they stood at the time of the adoption of the new Constitution, according to the then unrevoked acts and resolutions of the former government, except as to such alterations as they might, on legal principles, be pronounced to have undergone by voluntary acts and acquiescences of the creditors themselves; bottoming the provision on this principle, that those contracts were to be fulfilled as far and as fast as was practicable, and were not to be departed from without the free consent of the creditors.”

To a man who thinks justly and feels rightly for the reputation of the country of which he is a citizen, it is a humiliating reflection that it should be at all necessary to insist on the propriety of regulating the provision for the debt by the contracts concerning it.

The obligation to fulfil contracts is so fundamental a principle of private morality and social justice—so Edition: current; Page: [465]essential a basis of national credit, that nothing less than the fact itself could induce a belief that the application of the rule to our public debt could have been controverted by leaders of parties or by any considerable portion of the community. Yet, in truth, it has been controverted, either avowedly or virtually, by a great proportion of all parties, by declarations or propositions disclaiming the application of the principle, or by the rejection of propositions necessary to give it effect.

The general proposition, indeed, which affirms the obligation of fulfilling contracts, on governments as well as individuals, was of a nature which the most profligate politician was not shameless enough to deny.

But it has been contended that the case of our public debt was an extraordinary and peculiar case, justifying, on great principles of national justice and policy, a departure from common rules. The quantity of alloy in its original concoction, the extensive alienations at undervalues, the extreme point of depreciation for a certain period, the confused state of the debt by antecedent violations of contract and by the concession of partial advantages to particular descriptions of it, the impossibility of reinstating the primitive contracts which had been formerly violated, and the inequality of a full provision according to the new,—all these were urged or espoused as reasons for arbitrary provisions for the debt according to certain abstract notions of equity and right. It has been intimated that these heretics were divided into two principal classes: one which advocated a Edition: current; Page: [466]provision for the debt on the ground of a discrimination between original holders and alienees; another which advocated an equal provision for all at some arbitrary rate of interest inferior to the stipulated rates.

The first was apparently at least subdivided into three lesser sects: one which contended for providing in favor of original holders according to the terms of the contract, and in cases of alienation by a kind of composition or compromise between the original holders and alienees, which, in the course of the debate in Congress, took the specific form of giving ten shillings in the pound to one and the same to the other; another which contended for a full premium for original holders who had not alienated, and for an inferior one to alienees, without regarding the original holders who had alienated; a third for a reliquidation of the debt, making a full provision according to that reliquidation for original holders and an inferior one for alienees, with or without regard to the creditors who alienated.

The second general sect had also a diversity of opinions, some willing to allow a higher, some a lower rate of interest; some willing to fix the standard absolutely, without compensations for the reduction; others willing to give some kind of equivalents, but to make the provision absolute and final, leaving no option to the creditors.

The latter, when the subject was under debate, made no direct propositions; but then and since, they discovered their intentions in their conversations, in endeavoring to pare down the provision Edition: current; Page: [467]proposed in my report, and in resisting in subsequent cases a compliance with the contracts as to those creditors who have not accepted the terms held out to them.

The former made a formal and passionate effort to substitute their scheme for that which was contained in the plan reported from the Treasury. It failed, but it has laid the foundation of the great schism which has since prevailed.

There never was a doubt that if the idea of discrimination had obtained it would have resulted in a fraud on alienees without benefit to their alienors. A large proportion of those who supported the principle of discrimination clearly manifested that they meant to leave the difference in the public pocket.

The substance of the argument for a discrimination was this: [The rest is wanting.]

DEFENCE OF THE FUNDING SYSTEM