Chapter M (13)

2. But the _absurdity_ and _bad policy_ of laws against usury, are so obvious, that it iz surprizing scarcely an attempt haz been made to abolish them in any country. Such laws are absurd and impolitic, because they actually and always produce and multiply the distresses they are designed to remedy. It iz impossible it should be otherwise: The very laws of nature and commerce require that such restraints should necessarily counteract their own design. It iz necessary that commodities should be sometimes plenty and sometimes scarce; and it iz equally necessary that money, the representativ of all commodities, should be liable to the same fluctuations. In the commercial world, money and commodities wil always flow to that country, where they are most wanted and wil command the most profit. The consequence iz that a high price soon produces a low price, and vice versa.

Let us apply the principle to the present question. When money can bear its own profit, its profit or the interest arising on loans, wil be in proportion to the profit made in commercial transactions. If a man can make _twelv per cent._ on hiz stock, in any kind of trade or speculation, he wil not convert that stock into cash, and loan it at _six per cent._ While therefore commerce or speculation wil afford a man greater profits, than the law affords him on hiz loans of cash, he wil hav no money to lend. The consequence iz, while the law fixes the rate of interest lower than the annual profits of other business, a country wil be destitute of money.

This iz precisely the case in America. Our remittances to Europe and the East Indies require considerable sums in specie to be exported; and the merchant wil not import specie, except to facilitate the purchase of hiz cargoes in America. He will not import it for the purpose of loaning, because hiz stock in trade affords a better profit. The few landholders who hav a little cash abuv their annual expenditures, wil not loan it; for they can make twelv, fifteen, eighteen per cent. on their money by the purchase of certificates, and more on the purchase of lands. There are therefore no motivs, no inducements, for the welthy citizens to loan money, and consequently when a man iz distressed to make a payment, he iz compelled to sacrifice property to perhaps five times the valu of the det; because the law will not permit hiz nabor to take twelv or fifteen per cent. per ann. for the loan of money, a few months; when he haz the money, and would gladly releev hiz frend, if he could receev an adequate compensation.

Thus laws against usury drive cash from a country. They really and continually create a scarcity of an article, and then restrain men from raizing the price, in proportion to that scarcity. They create distresses of the poor, and at the same time, create an impossibility of releef. Were money left, like all kinds of commodities, to command its own price in market; whenever its price should rize abuv the usual cleer profit of other business, men would import specie, or turn their stock into cash, and loan it on good security; for no man would submit to the drudgery of business, if he could make money az fast by lying stil, with hiz money at interest. Had money been permitted to bear its own price according to the demand for it in America since the war, it would hav been kept in the country, or introduced til the rate of interest had fallen, even below the legal standard. Limit the profit on any article of life, and set the price so low that peeple can make more by deeling in other articles, and the articles so fixed wil become scarce and deer. Were the legislatures of the several states to say that our traders should make but one per cent. on salt, they would not bring cargoes of it to the country. It would be az scarce az money iz now. Let the price of wheet be fixed at half a dollar a bushel, and in two years we should not hav a bushel in market. It iz the same case with money. The low profits on the use of money, expel it from the country, and none can be obtained at the legal price. Let the interest rize to any sum which can be obtained, and in two years, it would be az eezy to borrow money at a low interest, az it iz now difficult to command it at any price. The laws of nature wil continue to opperate, in spite of the feeble opposition of human power.

Another consideration demands our notice. The laws against usury increase the distresses of the needy, by enhancing the risk, and consequently the insurance on loans.[142] It iz fruitless to attempt to prevent loans of money. When men are pressed for money, they can always find persons to supply them, upon _some_ terms. But az a loan of money at a higher rate of interest than iz allowed by law, exposes the lender to a loss of the money, and a fine or forfiture besides, hiz demand for the use of hiz money wil rize in proportion to that risk. This haz always been one of the most pernicious effects of such laws. So that the law, not only creates a scarcity in the first instance, but actually raizes the demand of interest much abuv the natural demand required by that scarcity. In short, insted of releeving the detter, it multiplies hiz distresses four fold.

[142] See Blackstone on this subject, Com. Vol. II. 455,
where the author's reezoning holds good, whether against
fixing the value of horse hire or money lent. All exorbitant
demands are unjust _in foro conscientiæ_; but what right haz
a legislature to fix the price of money loaned, and not of
house-rent?

Besides, such laws, like all national restrictions on trade, tend to make men dishonest, in particular things, and thus weeken the powers of the moral faculty. There are ten thousand ways of evading such laws, and slight evasions gradually produce a habit of violating law, and harden the mind against the feer of its penalties. Indeed, such laws tend to undermine that confidence which iz the basis of social intercourse. Laws which encourage _informations_, should be enacted with caution. Such are laws against usury. A man haz often the strongest temptation to be a treecherous rascal, by inducing hiz frend to loan him money, on illegal interest, and then betraying him. This species of villany waz lately carried so far in Massachusetts, az to induce the legislature to repeel a clauze of their law against usury. And a man of morality must shudder, while he reeds the legal prosecutions and adjudications in England upon their statutes of usury.

The absurdity of attempting to _fix the valu of money_ iz another objection to it of no small consequence. The valu of it depends wholly on the quantity in circulation and the demand. In this respect it resembles all other articles of trade; and who ever thought of fixing the price of goods by law?[143] It iz almost impossible for a legislature to ascertain exactly the valu of money at any one time; and utterly impossible to say that the valu when ascertained, shall continu the same for six months. Nay, two slates adjoining eech other may estimate the use of money very differently at the same period. In New York the legal interest iz seven per cent. in New England but six. A man may therefore do that legally in one state, which in the others would expoze him to a severe penalty.

[143] The legislatures of several states during the late war,
were rash enough to make the attempt; and the success of the
scheme waz just equal to the wisdom that planned it.

In ancient Rome, the interest waz twelv per cent. The emperor Justinian reduced it to four, but allowed higher interest to be taken of merchants, on account of the risk. In Holland, when Grotius wrote, the common interest waz eight per cent.; but twelv to merchants. In England, the statute 37th, Henry VIII, confined interest to _ten_ per cent. By the 21st James I, it waz reduced to eight; by the 12th Charles II, to six; and by 12th Ann, to five, the present legal interest in that country.[144]

[144] Blackstone Vol. II. 462.

Postlethwaite remarks very justly that theze laws hav not ascertained the real valu or interest of money; for when the legal interest haz been six per cent. the real interest haz sometimes been four; and when the legal interest haz been five, the real interest haz sometimes been seven. Indeed the interest of money depends on such a combination of circumstances, az the scarcity of money, the demand in market, and the hazard, that an attempt to find and fix a permanent rate, iz one of the most visionary schemes that a public body can undertake. To proov the impossibility of such a scheme, I would only mention the continual practice of violating laws against usury; which would not be the case, if the real valu of money had been ascertained and fixed.[145] If legislatures had found the tru valu of the use of money, there would hav been fewer violations of their laws: If they hav, in any case, fixed a rate of interest lower than the real valu, they hav violated the rights of their subjects. This iz a serious consideration; and perhaps in no instance are the laws of England and America more strongly marked with the traces of ancient prejudice and barbarity, than in the prohibition which prevents a man from using hiz _money_ az he pleezes, while he may demand any sum whatever for the use of hiz other property.

[145] What are marine insurances, bottomry, loans at
respondentia and annuities for life, but exceptions to the
general law against usury? The necessity of higher interest
than common iz pleeded for theze exceptions. Very good; but
they proov the absurdity of attempting to fix that, which the
laws of nature and commerce require should be fluctuating.
Such laws are partial and iniquitous.

The only power, I conceev, a legislature haz to determin what interest shall arize on the use of money, or property, iz where the parties hav not determined it by agreement. Thus when a man haz taken up goods upon credit, or where, by any other legal meens, a man becomes possessed of anothers money or estate, without a specific stipulation for interest, the law very properly steps in and ascertains the sum which the detter shall pay for the use of that money. But to make a law that a man shall not take but six per cent. for the use of money, when the borrower iz willing to giv more, and the lender cannot part with hiz money at that rate of interest, iz a daring violation of private rights, an injury often to both parties, and productiv of innumerable embarrassments to commerce.

We are told that such laws are necessary to guard men from the oppression of the rich. What an error! Waz a monied man ever compelled to assist a distressed nabor, by the forfitures incurred by such laws? Iz not hiz money hiz own? Wil he lend it all, if it should not be for hiz benefit? Besides, cannot a man in necessity alienate hiz property for one fourth of its valu? Are not such bona fide contracts made every day to raize money to answer a temporary purpose? Nay, hav not the laws of all commercial states authorized _sales by auction_, where any man may part with hiz property for a fourth of its valu? Iz there any remedy in law against such a sacrifice of a man's estate? Wherein then consists the security of laws against usury? In the name of common sense and common equity, let legislators be consistent. If men are improvident, lazy and careless, a loss of property wil be their punishment, and no mezures of government wil prevent it.

To what then shall we ascribe the severe laws against high interest, which hav been and stil are existing in most commercial countries? I presume the cause may be easily assigned. The Jewish prohibition, not to take interest, except of strangers, first gave rise to douts in the minds of our pious christian forefathers, with respect to the legality of any interest at all. This produced, in the dark ages, severe ecclesiastical laws against taking any thing for the use of money; and theze laws originated a general prejudice against it, thro the Christian world.

In the twelfth and thirteenth centuries, commerce began to revive; but az there waz but little money, and trade waz lucrativ, because in few hands, money bore a very high interest. In some parts of Europe, the interest waz forty per cent. Even with this interest, certain Italian traders could make an annual profit, and therefore it waz for their benefit to giv it. It however rendered them very unpopular.[146]

[146] Robertsons Charles V. Vol. I. 280.

The Jews, for their infidelity, had been considered by the Christians az outcasts on earth. Severe laws were enacted against them in almost every country; depriving them of the rights of citizens, and forbidding them to hold real estates. Proscribed and insulted, the poor Jews were compelled to turn their _hand against every man_ in their own defence. They commenced strolling traders and bankers, and by theze meens commanded a large share of the money in every kingdom.

With this command of cash, the Jews very justly compensated themselves for the injuries they suffered from the tyrannical laws which existed against them. They loaned money at the highest rate of interest they could obtain. Hence the general karacter of the Jews, and the prejudice against them that survives to this enlightened period.

It iz very probable, that before the discovery of the American mines, money waz so scarce in Europe, that a few brokers in eech kingdom might engross such a share, az to hav it in their power to oppress peeple. This waz evidently the case in England, about the reign of Edward I, and the parliament thought proper to interfere and restrain the evil. Laws against usury were doutless necessary and useful at that time. But since the world haz been filled with gold and silver from South America, and nations hav opened an intercourse with eech other, there never can be a want of specie, where a country can supply produce enough to exchange for it. It haz become a mere fluid in the commercial world; and in order to obtain a supply, in a country abounding with produce and manufactures, the legislature haz nothing to do, but let it bear its own price; let it command its own valu, ether at interest, or in exchange for commodities.

Laws against usury therefore I consider az originating ether in the necessity of the times, which long ago ceesed, or in a bigotted prejudice against the Jews, which waz az barbarous formerly, az it iz now infamous. Laws restraining the interest of money I now consider, in the same light, az I do laws against freedom of conscience. And were it not for the force of habit, I should az soon expect to see a modern legislature ordering a pious sectary to the stake for hiz principles, az to see them gravely passing a law, to limit the profit on the use of hiz money. And unless the legislatures of this enlightened age should repeel such laws, and place money on a footing with other property, they will be considered az accessory to a direct violation of the deerest rights of men, and will be answerable for more frauds, perjuries, treechery and expensiv litigations, than proceed from any other single cause in society. I am so firmly persuaded of the truth of theze principles, that I venture to predict, the opinions of men will be changed in less than half a century, and posterity will wonder that their forefathers could think of maintaining a position so absurd and contradictory, az that men hav no right to make more than six per cent. on the _loan of money_, while they hav an indefeezable right to make unlimited profit on their money in any other manner. They will vew laws against usury in the same light that we do the inquisition in Spain, the execution of gypsies and witches in the last century, or thoze laws of England which make 100l. annual income necessary to qualify a man for killing a partridge, while they allow _forty shillings_ only to qualify him for electing a knight of the shire.

NO. XXV.

HARTFORD, OCTOBER, 1789.

_On_ ALLEGIANCE.

Writers on law divide allegiance into two kinds, _natural_ and _local_. "Natural allegiance iz such az iz du from all men born within the kings dominions, immediately upon their berth. For immediately upon their berth, they are under the kings protection; at a time too when (during their infancy) they are incapable of protecting themselves. Natural allegiance iz therefore a det of gratitude, which cannot be forfeited, cancelled or altered, by any change of time, place or circumstances; nor by any thing but the united concurrence of the legislature. An Englishman who remoovs to France or to China, owes the same allegiance to the king of England there az at home, and twenty years hence az wel az now. For it iz a principle of universal law, that the natural born subject of one prince cannot by any act of hiz own, no, not by swearing allegiance to another, put off or discharge hiz natural allegiance to the former; for hiz natural allegiance waz intrinsic and primitiv and antecedent to the other, and cannot be devested, without the concurrent act of that prince to whom it waz first du. Indeed the natural born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it iz hiz own act that brings him into theze straits and difficulties, of owing service to two masters; and it iz unreezonable that, by such voluntary act of hiz own, he should be able at plezure to unloose thoze bands by which he iz connected to hiz natural prince."[147]

[147] Blackstone Com. Vol. I. 369.

I mistake much, however, if the natural born subject would be so much _entangled with hiz straits and difficulties_, az lord Coke, Hale and Blackstone, would be, to support their assertions and obviate the absurdities of their reezoning.

It iz astonishing to observe how slowly men get rid of old prejudices and opinions. The feudal ideas of allegiance, which make _fidelity in the subject an obligation or grateful return for the protection of the prince_, stil prevail, and are made the basis of all modern reezoning on the subject. Such ideas in the dark ages, and in the days of feudal despotism, are not to be wondered at. Every baron waz a tyrant on hiz manor, and az hiz only safety consisted in hiz castle and hiz vassals, it waz necessary to bind hiz subjects to him by oaths and superstition, az wel az by a demand upon their gratitude. But wil our sage writers on government and law, forever think by tradition? Wil they never examin the grounds of receeved opinions? Let me enquire.

What iz the real ground of _allegiance_? Iz it not _protection_? Not at all. We may just az wel invert the proposition, and say, that _allegiance_ iz the ground of _protection_. A prince iz the representativ of a nation or state, so that allegiance to him, iz merely allegiance to a state or body politic.[148] According to our ideas, allegiance to a king, and fidelity to a state, are the same thing; for detach a king from all connection with a nation or state, and he becumes a private man, and entitled only to the rights of such. This at leest iz the opinion of an _American_, whose mind iz not biassed by personal attachments to a sovereign.

[148] Blackstone remarks that allegiance iz applicable, not
only to the political capacity of the king, or regal office,
but to hiz _natural person_ and _blood royal_. I would ask
then what _blood royal_ there can be in a man, except in hiz
_kingly capacity_?

What then iz the ground of fidelity to a state? The answer iz eezy; the _moral law_, which haz for its object the _good of society_. This iz the basis of all obligations in a state, whether express or implied; yet writers on this subject hav hardly mentioned it. Blackstone indeed takes notice of an implied, original allegiance, antecedent to any express promis; but seems rather to consider it az a return for the duties of the sovereign, which he owes before coronation, than az an obligation arising from the very constitution of society.

Taking the moral law or the good of society for the ground of all allegiance, we discuver two species of duties to be performed by every man; the _moral duties_, which exist at all times and in all places; and certain _political duties_, required by the municipal laws of eech state. The first are the basis of natural or perpetual allegiance; the last, of local allegiance. The first or moral duties create an obligation upon every man, the moment he iz born, which cannot be cancelled or discharged by any act of an individual, or by any agreement between prince and subject; the last, or political duties, impoze an obligation upon every member of a state or body politic, the moment he steps within its jurisdiction, to submit peaceably to such positiv injunctions of that state, az hav been judged necessary for its welfare.

Now to maintain that an oath of allegiance wil bind a man to perform all the last class of duties, or the positiv duties enjoined by a particular state, and not required by the general laws of society, when the man haz perhaps become a member of another state, three thousand miles distant, iz to defend the wildest notions that can possess any man's brain. Every man iz bound always and in all places to _do right, and avoid doing rong_; and this with, or without taking an oath of fidelity to any state. This iz implied allegiance, universal and perpetual; and I deny that there iz any other ground of this allegiance, except the universal principles of right and rong.

Should it be said, that a man may bind himself _by oath_ to perform the positiv or political duties required by a state, altho he may remoov and become a citizen of another state; I answer, this wil involv him in the _straits_ and _difficulties_ mentioned by Blackstone; for the political duties of the two states may interfere with eech other. The truth iz, a man haz no right to take such an oath, nor haz a state any right to require it. He may swear, when he enters into any kingdom or state, that he wil be a good citizen, and submit to all the laws of the state, _while he iz a member of it_; and further, that he wil observe the moral law in hiz conduct towards that society, after _he haz ceesed to be a member of it_. Further than this, he haz no right to swear. Az to every duty, not required by the laws of society in general, but only by the municipal laws of a state, a man's allegiance commences when he enters that state; and ceeses the moment he leeves it.[149] The doctrin of a perpetual allegiance iz wholly a feudal idea; inculcated, when every lord waz at war with hiz nabor; and waz compelled by self preservation to attach hiz vassals to himself by oaths, the penalties of perjury and the forfeitures of treezon.

[149] Except the case of Ambassadors or other agents.

Blackstone says, in the passage already quoted, "that natural allegiance iz a det of gratitude," because the subject iz under the kings protection while an infant. He might just az wel say, _protection iz a det of gratitude_ du from the prince, because the subject iz born in hiz dominions. On this principle of gratitude, a child iz obliged to obey and serve hiz parent, after he haz left hiz family, and while he livs. This det, according to the same author, cannot be cancelled, but _by "concurrence of the legislature."_ How in the name of reezon, can an act of the legislature dissolv a _natural tie_? How can it _cancel a det of gratitude_? Common sense looks with disdain on such week and futile reezoning. But if there iz such a thing az natural and perpetual allegiance, an Englishman, who remoovs to France, cannot take arms to defend France against an invasion from England. Is this agreeable to the laws of nature and society, that a man should not protect himself and hiz property? It wil be said that the man iz within the English king's liegeance, and entitled to hiz protection. But the king cannot protect him; it iz beyond hiz power, and the Englishman iz not obliged to leev France and seek protection in England. Hiz estate and hiz family may be in France, and if he chooses to reside there, it iz hiz unalienable right and duty to defend both against any invasion whatever. Every war, except a defensiv one, iz a breech of the moral law; but when a natural born subject of England, haz become a citizen of France, he iz subject to the laws of France, and bound to assist, if required, in defending the kingdom against hiz natural prince.

No. XXVI.

HARTFORD, JULY, 1789.

EXPLANATION _of the_ REEZONS, _why_ MARRIAGE _iz_ PROHIBITED _between_ NATURAL RELATIONS.

Much haz been said and written to ascertain between what relations marriage ought to be permitted. The civil, the canon, and the English laws, differ az to the degrees of consanguinity necessary to render this connection improper. A detail of the arguments on this subject, and even a recapitulation of the decrees of ecclesiastical councils, in the erly ages of the church, would be tedious and uninteresting. I shall only offer a few thoughts of my own on the question, with a view to illustrate a single point, which haz been agitated in modern times, and on which the different American states hav passed different decisions. The point iz, whether a man should be permitted to marry hiz former wife's sister. In some states this iz permitted; in others, prohibited.

Thoze who favor the prohibition, ground their reezon on the Levitical law, which says a man shall not marry hiz wife's sister, during the life of hiz wife, to vex her. This prohibition, while it restrains a man from having two sisters for wives at the same time, among a peeple where poligamy waz permitted, iz a negativ pregnant, and a strong argument that a man waz allowed, after the deth of a wife, to marry her sister.

The Jewish law, however divine, waz designed for a particular nation, and iz no farther binding upon other nations, than it respects the natural and social duties. In no one particular, hav men been more mistaken, than in explaining divine commands. It haz been sufficient for them to reseiv a law into the wil of God, without examining into the reezons for which the law waz revealed. They seem to hav inverted the foundation of moral obligation, in supposing the moral law to derive its propriety and fitness originally from the wil of Deity, rather than from the nature of things. They talk about the fitness and unfitness of things, independent, not only of society, but of God himself. Such wild notions, I presume, are not common. There could be no fitness nor unfitness of things, before things were made; nor could right and rong exist without social beings. The moral duties therefore are not right, merely because they are commanded by God; but they are commanded by him, because they are right. The propriety or fitness of them depends on the very nature of society; and this fitness, which waz coeval with creation, waz the ground of the divine command.[150]

[150] It may be said, that _moral right_ and _rong_ must
ultimately be resolved into the wil of Deity, because society
itself depends on hiz wil. This iz conceded; I only contend
that moral fitness and unfitness result _immediately_ from
the state of created beings, with relation to eech other, and
not from any arbitrary rules imposed by Deity, subsequent to
creation.

The law of Moses, regulating marriages, waz founded on this propriety or fitness of things. A divine command givs a sanction to the law; but the propriety of it existed prior to the command. The reezons for prohibiting marriage between certain relations are important; yet they seem not to be understood. It haz been sufficient, in discussing this point, to say, _such iz the law of God_; and few attempts hav been made to find the reezons of it, by which alone its extent and authority can be ascertained.

There are two rules, furnished by the laws of nature, for regulating matrimonial connections. The first iz, that marriage, which iz a social and civil connection, should not interfere with a natural relation, so az to defeet or destroy its duties and rights. Thus it iz highly improper that an aunt should marry her nephew, or a grandfather hiz grand daughter; because the duties and rights of the natural relation, would be superseded by the positiv duties and rights of the civil connection.

The other rule iz much more important. It iz a law of nature that vegetables should degenerate, if planted continually on the same soil. Hence the change of seeds among farmers. Animals degenerate on the same principle. The physical causes of this law of nature, are perhaps among the arcana of creation; but the effects are obvious; and it iz surprizing that modern writers on law and ethics should pass over almost the only reezons of prohibiting marriage between blood relations. Consanguinity, and not affinity, iz the ground of the prohibition.[151]

[151] By the ancient laws of England, relations in the same
degree, whether by consanguinity or affinity, were placed
exactly on a footing. See the suttle reezoning by which the
prohibitions were supported, in Reeve's History of the
English Laws, Vol. IV.

It iz no crime for brothers and sisters to intermarry, except the fatal consequences to society; for were it generally practised, men would soon become a race of pigmies. It iz no crime for brothers and sisters children to intermarry, and this iz often practised; but such near blood connections often produce imperfect children. The common peeple hav hence drawn an argument to proov such connections criminal; considering weakness, sickness and deformity in the offspring az judgements upon the parents. Superstition iz often awake, when reezon iz asleep. It iz just az criminal for a man to marry hiz cousin, az it iz to sow flax every year on the same ground; but when he does this, he must not complain, if he haz an indifferent crop.

Here then the question occurs, iz it proper for a man to marry hiz wife's sister? The answer iz plain. The practice does not interfere with any law of nature or society; and there iz not the smallest impropriety in a man's marrying ten sisters of hiz wife in succession. There iz no natural relation destroyed; there iz no relation by blood; and _cessante ratione, cessat et ipsa Lex_; the law ceeses when the reezon of it ceeses.

No. XXVII.

HARTFORD, FEBRUARY, 1790.

MISCELLANEOUS REMARKS _on_ DIVIZIONS _of_ PROPERTY, GUVERNMENT, EDUCATION, RELIGION, AGRICULTURE, SLAVERY, COMMERCE, CLIMATE _and_ DISEEZES _in the_ UNITED STATES.

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

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

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

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

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

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

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

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

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

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

[152] Lands in Connecticut desend to the heirs in the
following manner: First to children, and if none, then to
brothers and sisters or their legal representativs of the
whole blud; then to parents; then to brothers and sisters of
the half blud; then to next of kin, the whole blud taking the
preference when of equal degree with the half blud.

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

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

[153] See my Dissertations on the English Language, page 106.

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

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

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

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

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

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

[154] See Winthrop's Journal, Mather's Magnalia, and
Hutchisons Collection of papers.

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

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

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

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

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

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

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