Chapter XI: Section 24: "And I can see no reason why a person, who, without (8)

As for the words of approach and contumely, whereof the lie was esteemed none, it is not credible, but that the orations themselves are extant, what extreme and exquisite reproaches were tossed up and down in the Senate of Rome and the places of assembly, and the like in Graecia, and yet no man took himself fouled by them, but took them but for breath, and the style of an enemy, and either despised them or returned them, but no blood was spilt about them.

So of every touch or light blow of the person, they are not in themselves considerable, save that they have got them upon the stamp of a disgrace, which maketh these light things pass for great matters. The law of England and all laws hold these degrees of injury to the person, slander, battery, mayhem, death; and if there be extraordinary circumstances of despite and contumely, as in case of libels and bastinadoes and the like, this court taketh them in hand and punisheth them exemplarily. But for this apprehension of a disgrace that a fillip to the person should be a mortal wound to the reputation, it were good that men did hearken unto the saying of Gonsalvo, the great and famous commander, that was wont to say a gentleman's honor should be _de_ _tela_ _crassiore_, of a good strong warp or web, that every little thing should not catch in it; when as now it seems they are but of cobweb-lawn or such light stuff, which certainly is weakness, and not true greatness of mind, but like a sick man's body, that is so tender that it feels everything. And so much in maintenance and demonstration of the wisdom and justice of the law of the land.

For the capacity of this court, I take this to be a ground infallible, that wheresoever an offense is capital, or matter of felony, though it be not acted, there the combination or practice tending to the offense is punishable in this court as high misdemeanor. So practice to imprison, though it took no effect; waylaying to murder, though it took no effect; and the like; have been adjudged heinous misdemeanors punishable in this court. Nay, inceptions and preparations in inferior crimes, that are not capital, as suborning and preparing of witnesses that were never deposed, or deposed nothing material, have likewise been censured in this court, as appeareth by the decree in Garnon's case.

Why, then, the major proposition being such, the minor cannot be denied, for every appointment of the field is but combination and plotting of murder. Let them gild it how they list, they shall never have fairer terms of me in a place of justice. Then the conclusion followeth, that it is a case fit for the censure of the court. And of this there be precedents in the very point of challenge. It was the case of Wharton, plaintiff, against Ellekar and Acklam, defendants, where Acklam, being a follower of Ellekar's, was censured for carrying a challenge from Ellekar to Wharton, though the challenge was not put in writing, but delivered only by word of message; and there are words in the decree, that such challenges are to the subversion of government. These things are well known, and therefore I needed not so much to have insisted upon them, but that in this case I would be thought not to innovate anything of my own head, but to follow the former precedents of the court, though I mean to do it more thoroughly, because the time requires it more.

Therefore now to come to that which concerneth my part, I say that by the favor of the king and the court, I will prosecute in this court in the cases following: If any man shall appoint the field, though the fight be not acted or performed. If any man shall send any challenge in writing, or any message of challenge. If any man carry or deliver any writing or message of challenge. If any man shall accept to be second in a challenge of either side. If any man shall depart the realm, with intention and agreement to perform the fight beyond the seas. If any man shall revive a quarrel by any scandalous bruits or writings, contrary to former proclamation published by his Majesty in that behalf.

Nay I hear there be some counsel learned of duels, that tell voting men when they are beforehand, and when they are otherwise and thereby incense and incite them to the duel, and make an art of it. I hope I shall meet with some of them too; and I am sure, my lords, this course of preventing duels, in nipping them in the bud, is fuller of clemency and providence than the suffering them to go on, and hanging men with their wounds bleeding, as they did in France.

To conclude, I have some petitions to make first to your lordship, my lord chancellor, that in case I be advertised of a purpose in any to go beyond the sea to fight, I may have granted his Majesty's writ of _ne_ _exeat_ _regnum_ to stop him, for this giant bestrideth the sea, and I would take and snare him by the foot on this side; for the combination and plotting is on this side, though it should be acted beyond the sea. And your lordship said notably the last time I made a motion in this business, that a man may be as well _fur_ _de_ _se_ as _felo_ _de_ _se_, if he steal out of the realm for a bad purpose. As for the satisfying of the words of the writ, no man will doubt but he does _machinari_ _contra_ _coronam_, as the words of the writ be, seeking to murder a subject; for that is ever _contra_ _coronam_ _et_ _dignitatem_. I have also a suit to your lordships all in general, that for justice's sake, and for true honor's sake, honor of religion, law, and the King our master, against this fond and false disguise or puppetry of honor. I may, in my prosecution, which, it is like enough, may sometimes stir coals, which I esteem not for my particular, but as it may hinder the good service, I may, I say, be countenanced and assisted from your lordships. Lastly, I have a petition to the nobles and gentlemen of England, that they would learn to esteem themselves at a just price. _Non_ _hos_ _quaesitim_ _munus_ _in_ _usus_--their blood is not to be spilt like water or a vile thing; therefore, that they would rest persuaded there cannot be a form of honor, except it be upon a worthy matter. But this, _ipsi_ _viderunt_, I am resolved.

JAMES BARBOUR (1775-1842)

Senator James Barbour's speech on the treaty-making power, made in the United States Senate in January 1816, is one of the ablest and most concise presentations of the Virginia view of the Federal constitution represented by Madison before he came under Jefferson's influence. The speech itself, here reproduced from Benton's 'Debates,' sufficiently explains all that is of permanent importance in the question presented to the Senate, If, under the Federal constitution, it was necessary after the ratification of a treaty to specially repeal laws in conflict with it, then such laws and "municipal regulations" as remained unrepealed by special act would be in force in spite of the treaty. Arguing against this as it affected the treaty-making power of the Senate from which the House of Representatives was excluded by the constitution, Senator Barbour declared the treaty-making power supreme over commerce, and incidentally asserted that unless there is such a supremacy lodged somewhere in the government, the condition would be as anomalous as that of Christendom when it had three Popes.

Mr. Barbour was born in 1775 and educated for the bar. He served in the Virginia legislature, was twice governor of the State, and twice elected to represent it in the United States Senate. He was Secretary of War in 1825 under John Quincy Adams, who sent him as minister to England--a post from which he was recalled by President Jackson. He presided over the national convention which nominated William Henry Harrison for the presidency, dying in 1842.

TREATIES AS SUPREME LAWS

Mr. President, as it seems to be the wish of the Senate to pass upon this subject without debate, it adds to the reluctance I always feel when compelled, even by a sense of duty, to intrude on their attention. Yet, as I feel myself obliged, under the solemn responsibility attached to the station I hold here, to vote against the bill under consideration--as I think, also, it is but a due respect to the other branch of the legislature, from whom it is my misfortune to differ, and but an act of justice to myself to state the grounds of my opinion, I must be pardoned for departing from the course which seemed to be desired by the Senate.

In the exercise of this privilege, with a view to promote the wishes of the Senate as far as a sense of duty will permit, I will confine myself to a succinct view of the most prominent objections which lie against its passage, rather than indulge in the extensive range of which the subject is susceptible. Before I enter into the discussion of the merits of the question, I beg leave to call the attention of the Senate to the course which was adopted by us in relation to this subject. A bill, brought in by the Committee on Foreign Relations, passed the Senate unanimously, declaring that all laws in opposition to the convention between the United States and Great Britain, concluded on the third of July last, should be held as null and void. The principle on which this body acted was, that the treaty, upon the exchange of its ratification, did, of itself, repeal any commercial regulation, incompatible with its provisions, existing in our municipal code; it being by us believed at the time that such a bill was not necessary, but by a declaratory act, it was supposed, all doubts and difficulties, should any exist, might be removed. This bill is sent to the House of Representatives, who, without acting thereon, send us the one under consideration, but differing materially from ours. Far from pretending an intimate knowledge of the course of business pursued by the two houses, I do not say that the mode adopted in this particular case is irregular, but if it has not the sanction of precedent, it appears to me to be wanting in that courtesy which should be perpetually cherished between the two houses. It would have been more decorous to have acted on our bill, to have agreed to it if it were approved, to reject or amend it. In the latter case, upon its being returned to the Senate, the views of the other body would have been contrasted with our own, and we might then have regularly passed upon the subject. A different course, however, has been adopted; and if a regard to etiquette had been the only obstacle to my support to the bill, it would have been readily given; for it is the substance, and not the shadow, which weighs with me. The difference between the two bills is rendered important by its involving a constitutional question.

It is my misfortune, for such I certainly esteem it, to differ from the other branch of the legislature on that question; were it a difference of opinion on the expediency of a measure, it might readily be obviated, as being entirely free, or at least I hope so, from pride of opinion. My disposition is to meet, by mutual concession, those with whom I am in the habit of acting; but when a principle of the constitution is involved, concession and compromise are out of the question. With one eye on the sacred charter of our liberties, and the other on the solemn sanction under which I act here, I surrender myself to the dictates of my best judgment (weak enough God knows), and fearlessly pursue the course pointed out by these guides. My regret is certainly greatly lessened by the reflection that there is no difference of opinion with any one on the propriety of executing the treaty with good faith--we differ only as to the manner in which our common purpose shall be effected.

The difference between the friends of the bill, and those opposed to it is, as I understand it, this: the former contend, that the law of Congress, discriminating between American and British tonnage, is not abrogated by the treaty, although its provisions conflict with the treaty, but that to effect its repeal, the bill in question, a mere echo of the treaty, must pass; the latter, among whom I wish to be considered, on the contrary say, that the law above alluded to was annulled upon the ratification of the treaty. I hope I have succeeded in stating the question fairly, for that certainly was my wish, and it is also my determination to discuss it in the same spirit.

This, then, is the issue which is made up between the friends and the opponents of the bill; and although in its practical effects I cannot believe it would be of consequence which way it is decided, yet, as the just interpretation of the constitution is the pivot on which it turns, from that consideration alone the question becomes an interesting one.

Fortunately for us we have a written constitution to recur to, dictated with the utmost precision of which our language is susceptible--it being the work of whatsoever of wisdom, of experience, and of foresight, united America possessed.

To a just understanding of this instrument, it will be essential to recur to the object of its adoption; in this there can be no difference of opinion. The old band of union had been literally dissolved in its own imbecility; to remedy this serious evil, an increase of the powers of the general government was indispensable.

To draw the line of demarcation between the powers thus granted to the general government, and those retained by the States, was the primary and predominating object. In conformity with this view, we find a general enumeration of the powers assigned the former, of which Congress is made the depository; which powers, although granted to Congress in the first instance, are, in the same instrument, subsequently distributed among the other branches of the government. Various examples might be adduced in support of this position. The following for the present will suffice: Article i., section i, of the constitution declares, that "all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Yet we find, by the seventh section of the same article, the President invested with a large share of legislative power, and, in fact, constituting an integral branch of the legislature; in addition to this, I will here barely add, that the grant of the very power to regulate the exercise of which gave birth to this bill, furnishes, by the admission of the friends of the bill, another evidence of the truth of this position, as I shall show hereafter; and, therefore, to comprehend the true meaning of the constitution, an isolated view of a particular clause or section will involve you in error, while a comprehensive one, both of its spirit and letter, will conduct you to a just result; when apparent collisions will be removed, and vigor and effect will be given to every part of the instrument. With this principle as our guide, I come directly to that part of the constitution which recognizes the treaty-making power. In the second clause, second section, second article, are the following plain and emphatic words: "He [the President] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur." Two considerations here irresistibly present themselves--first, there is no limitation to the exercise of the power, save such restrictions as arise from the constitution, as to the subjects on which it is to act; nor is there any participation of the power, with any other branch of the government, in any way alluded to.

Am I borne out in this declaration by the clause referred to? That I am, seems to me susceptible of demonstration. To the President and Senate has been imparted the power of making treaties. Well, what is a treaty? If a word have a known signification by the common consent of mankind, and it be used without any qualification in a law, constitution, or otherwise, the fair inference is that the received import of such word is intended to be conveyed. If so, the extent of the power intended to be granted admits of no difficulty. It reaches to those acts of courtesy and kindness, which philanthropy has established in the intercourse of nations, as well as to treaties of commerce, of boundaries, and, in fine, to every international subject whatsoever. This exposition is supported by such unequivocal authority, that it is believed it will not be questioned. I, therefore, infer that it will be readily yielded, that in regard to the treaty, in aid of which this bill is exhibited, the treaty-making power has not exceeded its just limits. So far we have proceeded on sure ground; we now come to the pith of the question. Is the legislative sanction necessary to give it effect? I answer in the negative. Why? Because, by the second clause of the sixth article of the constitution, it is declared that all treaties made or which shall be made, under the authority of the United States, shall be the supreme law of the land. If this clause means anything, it is conclusive of the question.

If the treaty be a supreme law, then whatsoever municipal regulation comes within its provisions must _ipso_ _facto_ be annulled--unless gentlemen contend there can be at the same time two supreme laws, emanating from the same authority, conflicting with each other, and still both in full vigor and effect. This would indeed produce a state of things without a parallel in human affairs, unless indeed its like might be found in the history of the Popes. In one instance, we are told, there were three at one time roaming over the Christian world, all claiming infallibility, and denouncing their anathemas against all who failed to yield implicit obedience to their respective mandates, when to comply with the one was to disobey the other. A result like this, so monstrous in its aspect, excludes the interpretation which produces it. It is a safe course in attempting to ascertain the meaning of a law or constitution to connect different clauses (no matter how detached) upon the same subject together. Let us do it in this case. The President shall have power, by and with the advice and consent of the Senate, to make treaties, which treaties shall be the supreme law of the land. I seek to gain no surreptitious advantage from the word supreme, because I frankly admit that it is used in the Constitution, in relation to the laws and constitutions of the States; but I appeal to it merely to ascertain the high authority intended to be imparted by the framers of the constitution to a ratified treaty. It is classed in point of dignity with the laws of the United States. We ask for no superiority, but equality; and as the last law made annuls a former one, where they conflict, so we contend that a subsequent treaty, as in the present case, revokes a former law in opposition thereto. But the other side contend that it is inferior to the law in point of authority, which continues in full force despite of a treaty, and to its repeal the assent of the whole legislature is necessary. Our claims rest on the expressed words of the constitution--the opposite on implication; and if the latter be just, I cannot forbear to say that the framers of the constitution would but ill deserve what I have heretofore thought a just tribute to their meritorious services. If they really designed to produce the effect contended for, instead of so declaring by a positive provision, they have used a language which, to my mind, operates conclusively against it. Under what clause of the constitution is the right to exercise this power set up? The reply is, the third clause of eighth section, first article--Congress shall have power to regulate commerce with foreign nations, etc. I immediately inquire to what extent does the authority of Congress, in relation to commercial treaties, reach? Is the aid of the legislature necessary in all cases whatsoever, to give effect to a commercial treaty? It is readily admitted that it is not. That a treaty, whose influence is extra territorial, becomes obligatory the instant of its ratification. That, as the aid of the legislature is not necessary to its execution, the legislature has no right to interpose. It is then admitted that while a general power on the subject of commerce is given to Congress, that yet important commercial regulations may be adopted by treaty, without the co-operation of the legislature, notwithstanding the generality of the grant of power on commercial subjects to Congress. If it be true that the President and Senate have, in their treaty-making power, an exclusive control over part and not over the whole, I demand to know at what point that exclusive control censes? In the clause relied upon, there is no limitation. The fact is, sir, none exists. The treaty-making power over commerce is supreme. No legislative sanction is necessary, if the treaty be capable of self-execution, and when a legislative sanction is necessary, as I shall more at large hereafter show, such sanction, when given, adds nothing to the validity of the treaty, but enables the proper authority to execute it; and when the legislature do act in this regard, it in under such obligation as the necessity of fulfilling a moral contract imposes.

If it be inquired of me what I understand by the clause in question, in answer I refer to the principle with which I set out: that this was a grant of power to the general government of which Congress was in the first instance merely the depository, which power, had not a portion thereof been transferred to another branch of the government, would have been exclusively exercised by Congress, but that a distribution of this power has been made by the constitution; as a portion thereof has been given to the treaty-making power, and that which is not transferred is left in the possession of Congress. Hence, to Congress it is competent to act in this grant in its proper character by establishing municipal regulations. The President and the Senate, on the other hand, have the same power within their sphere, that is, by a treaty or convention with a foreign nation, to establish such regulations in regard to commerce, as to them may seem friendly to the public interest. Thus each department moves in its own proper orbit, nor do they come in collision with each other. If they have exercised their respective powers on the same subject, the last act, whether by the legislature or the treaty-making power, abrogates a former one. The legislature of the nation may, if a cause exist in their judgment sufficient to justify it, abrogate a treaty, as has been done; so the President and Senate by a treaty may abrogate a pre-existing law containing interfering provisions, as has been done heretofore (without the right being questioned), and as we say in the very case under consideration. I will endeavor to make myself understood by examples; Congress has power, under the clause in question, to lay embargoes, to pass nonintercourse, or nonimportation, or countervailing laws, and this power they have frequently exercised. On the other hand, if the nation against whom one of those laws is intended to operate is made sensible of her injustice and tenders reparation, the President and Senate have power by treaty to restore the amicable relations between the two nations, and the law directing otherwise, upon the ratification of the treaty, is forthwith annulled. Again, if Congress should be of opinion that the offending nation had not complied with their engagements, they might by law revoke the treaty, and place the relation between the two nations upon such footing as they approved. Where is the collision here? I see none. This view of the subject presents an aspect as innocent as that which is produced when a subsequent law repeals a former one. By this interpretation you reconcile one part of the constitution with another, giving to each a proper effect, a result always desirable, and in rules of construction claiming a precedence to all others. Indeed, sir, I do not see how the power in question could have been otherwise arranged. The power which has been assigned to Congress was indispensable; without it we should have been at the mercy of a foreign government, who, knowing the incompetency of Congress to act, would have subjected our commerce to the most injurious regulations, as was actually the case before the adoption of the constitution, when it was managed by the States, by whom no regular system could be established; indeed, we all know this very subject was among the most prominent of the causes which produced the constitution. Had this state of things continued, no nation which could profit by a contrary course would have treated. On the other hand, had not a power been given to some branch of the government to treat, whatever might have been the friendly dispositions of other powers, or however desirous to reciprocate beneficial arrangements, they could not, without a treaty-making power lodged somewhere, be realized.

I therefore contend, that although to Congress a power is given in the clause alluded to, to regulate commerce, yet this power is in part, as I have before endeavored to show, given to the President and Senate in their treaty-making capacity--the truth of which position is admitted by the friends of the bill to a certain extent. The fact is, that the only difference between us is to ascertain the precise point where legislative aid is necessary to the execution of the treaty, and where not. To fix this point is to settle the question. After the most mature reflection which I have been able to give this subject, my mind has been brought to the following results; Whenever the President and Senate, within the acknowledged range of their treaty-making power, ratify a treaty upon extraterritorial subjects, then it is binding without any auxiliary law. Again, if from the nature of the treaty self-executory, no legislative aid is necessary. If on the contrary, the treaty from its nature cannot be carried into effect but by the agency of the legislature, that is, if some municipal regulation be necessary, then the legislature must act not as participating in the treaty-making power, but in its proper character as a legislative body.

BARNAVE (1761-1793)

Antoine Pierre Joseph Marie Barnave was born at Grenoble, France, in 1761. He was the son of an advocate, who gave him a careful education. His first work of a public character, a pamphlet against the Feudal system, led to his election to the States-General in 1789. He advocated the Proclamation of the Rights of Man and identified himself with those enthusiastic young Republicans of whom Lafayette is the best type. The emancipation of the Jews from all civil and religious disabilities and the abolition of slavery throughout French territory owed much to his efforts. He also opposed the Absolute Veto and led the fight for the sequestration of the property of the Church. This course made him a popular idol and in the early days of the Revolution he was the leader of the extreme wing of the Republicans. When he saw, however, that mob law was about to usurp the place of the Republican institutions for which he had striven, he leaned towards the court and advocated the sacrosanctity of the King's person. Denounced as a renegade, with his life threatened and his influence lost, he retired to his native province. In August 1792 he was impeached for correspondence with the King, and on November 26th, 1793. he was guillotined. The specimens of his eloquence here given were translated for this Library from the Paris edition of his works, published in 1843.

REPRESENTATIVE DEMOCRACY AGAINST MAJORITY ABSOLUTISM (Delivered in the National Assembly, August 11th, 1791)

It is not enough to desire to be free--one must know how to be free. I shall speak briefly on this subject, for after the success of our deliberations, I await with confidence the spirit and action of this Assembly. I only wish to announce my opinions on a question, the rejection of which would sooner or later mean the loss of our liberties. This question leaves no doubt in the minds of those who reflect on governments and are guided by impartial judgments. Those who have combatted the committee have made a fundamental error. They have confounded democratic government with representative government; they have confounded the rights of the people with the qualifications of an elector, which society dispenses for its well understood interest. Where the government is representative, where there exists an intermediary degree of electors, society which elects them has essentially the right to determine the conditions of their eligibility. There is one right existing in our constitution, that of the active citizen, but the function of an elector is not a right. I repeat, society has the right to determine its conditions. Those who misunderstand the nature as they do the advantages of representative government, remind us of the governments of Athens and Sparta, ignoring the differences that distinguish them from France, such as extent of territory, population, etc. Do they forget that they interdicted representative government? Have they forgotten that the Lacedemonians had the right to vote in the assemblies only when they held helots? And only by sacrifice of individual rights did the Lacedemonians, Athenians, and Romans possess any democratic governments! I ask those who remind us of them, if it is at such government they would arrive? I ask those who profess here metaphysical ideas, because they have no practical ideas, those who envelop the question in clouds of theory, because they ignore entirely the fundamental facts of a positive government--I ask is it forgotten that the democracy of a portion of a people would exist but by the entire enslavement of the other portion of the people? A representative government has but one evil to fear, that of corruption. That such a government shall be good, there must be guaranteed the purity and incorruptibility of the electorate. This body needs the union of three eminent guarantees. First, the light of a fair education and broadened views. Second, an interest in things, and still better if each had a particular and considerable interest at stake to defend. Third, such condition of fortune as to place the elector above attack from corruption.

These advantages I do not look for in the superior class of the rich, for they undoubtedly have too many special and individual interests, which they separate from the general interests. But if it is true that we must not look for the qualifications of the pure elector among the eminently rich, neither should I look for it among those whose lack of fortune has prevented their enlightenment; among such, unceasingly feeling the touches of want, corruption too easily can find its means. It is, then, in the middle class that we find the qualities and advantages I have cited. And, I ask, is it the demand that they contribute five to ten francs that causes the assertion that we would throw elections into the hands of the rich? You have established the usage that the electors receive nothing; if it were otherwise their great number would make an election most expensive. From the instant that the voter has not means enough to enable him to sacrifice a little time from his daily labor, one of three things would occur. The voter would absent himself, or insist on being paid by the State, else he would be rewarded by the one who wanted to obtain his suffrage. This does not occur when a comfortable condition is necessary to constitute an elector. As soon as the government is established, when the constitution is guaranteed, there is but a common interest for those who live on their property, and those who toil honestly. Then can be distinguished those who desire a stable government and those who seek but revolution and change, since they increase in importance in the midst of trouble as vermin in the midst of corruption.

If it is true, then, that under an established constitutional government all its well-wishers have the same interest, the power of the same must be placed in the hands of the enlightened who can have no interest pressing on them, greater than the common interest of all the citizens. Depart from these principles and you fall into the abuses of representative government. You would have extreme poverty in the electorate and extreme opulence in the legislature. You would see soon in France what yon see now in England, the purchase of voters in the boroughs not with money even, but with pots of beer. Thus incontestably are elected many of their parliamentary members. Good representation must not be sought in either extreme, but in the middle class. The committee have thus placed it by making it incumbent that the voter shall possess an accumulation the equivalent of, say forty days of labor. This would unite the qualities needed to make the elector exercise his privilege with an interest in the same. It is necessary that he own from one hundred and twenty to two hundred and forty livres, either in property or chattels. I do not think it can seriously be said that this qualification is fixed too high, unless we would introduce among our electors men who would beg or seek improper recompense.

If you would have liberty subsist do not hesitate because of specious arguments which will be presented to you by those who, if they reflect, will recognize the purity of our intentions and the resultant advantages of our plans. I add to what I have already said that the system will diminish many existing inconveniences, and the proposed law will not have its full effect for two years. They tell us we are taking from the citizen a right which elevated him by the only means through which he can acquire it. I reply that if it was an honor the career which you will open for them will imprint them with character greater and more in conformity with true equality. Our opponents have not failed either to magnify the inconveniences of changing the constitution. Nor do I desire its change. For that reason we should not introduce imprudent discussions to create the necessity of a national convention. In one word, the advice and conclusions of the committee are the sole guarantees for the prosperity and peaceable condition of the nation.

COMMERCIAL POLITICS

Commerce forms a numerous class, friends of external peace and internal tranquillity, who attach themselves to the established government.

It creates great fortunes, which in republics become the origin of the most forceful aristocracies. As a rule commerce enriches the cities and their inhabitants, and increases the laboring and mechanical classes, in opening more opportunities for the acquirement of riches. To an extent it fortifies the democratic element in giving the people of the cities greater influence in the government. It arrives at nearly the same result by impoverishing the peasant and land owner, by the many new pleasures offered him and by displaying to him the ostentation and voluptuousness of luxury and ease. It tends to create bands of mercenaries rather than those capable of worthy personal service. It introduces into the nation luxury, ease, and avarice at the same time as labor.

The manners and morals of a commercial people are not the manners of the merchant. He individually is economical, while the general mass are prodigal. The individual merchant is conservative and moral, while the general public are rendered dissolute.

The mixture of riches and pleasures which commerce produces joined to freedom of manners, leads to excesses of all kinds, at the same time that the nation may display the perfection of elegance and taste that one noticed in Rome, mistress of the world or in France before the Revolution. In Rome the wealth was the inflow of the whole world, the product of the hardiest ambition, producing the deterioration of the soldier and the indifference of the patrician. In France the wealth was the accumulation of an immense commerce and the varied labors of the most industrious nation on the earth diverted by a brilliant and corrupt court, a profligate and chivalrous nobility, and a rich and voluptuous capital.

Where a nation is exclusively commercial, it can make an immense accumulation of riches without sensibly altering its manners. The passion of the trader is avarice and the habit of continuous labor. Left alone to his instincts he amasses riches to possess them, without designing or knowing how to use them. Examples are needed to conduct him to prodigality, ostentation, and moral corruption. As a rule the merchant opposes the soldier. One desires the accumulations of industry, the other of conquest. One makes of power the means of getting riches, the other makes of riches the means of getting power. One is disposed to be economical, a taste due to his labor. The other is prodigal, the instinct of his valor. In modern monarchies these two classes form the aristocracy and the democracy. Commerce in certain republics forms an aristocracy, or rather an "extra aristocracy in the democracy." These are the directing forces of such democracies, with the addition of two other governing powers, which have come in, the clergy and the legal fraternity, who assist largely in shaping the course of events.

ISAAC BARROW (1630-1677)

It is not often that a sermon, however eloquent it may be, becomes a literary classic, as has happened to those preached by Barrow against Evil Speaking. Literature--that which is expressed in letters--has its own method, foreign to that of oratory--the art of forcing one mind on another by word of mouth. Literature can rely on suggestion, since it leaves those who do not comprehend at once free to read over again what has attracted their attention without compelling their understanding. All great literature relies mostly on suggestion. This is the secret of Shakespeare's strength in 'Hamlet,' as it is the purpose of Burke's in such speeches as that at the trial of Hastings, to compel immediate comprehension by crowding his meaning on the hearer in phalanxed sentences, moving to the attack, rank on rank, so that the first are at once supported and compelled by those which succeed them.

It is not easy to find the secret by virtue of which sermons that made Barrow his reputation for eloquence escaped the fate of most eloquent sermons so far as to find a place in the standard "Libraries of English Classics," but it lies probably in their compactness, clearness, and simplicity. Barrow taught Sir Isaac Newton mathematics, and his style suggests the method of thought which Newton illustrated in such great results.

Born in London in 1630, Barrow was educated at the Charterhouse School, at Felstead, and at Cambridge. Belonging to a Royalist family, under Cromwell, he left England after his graduation and traveled abroad, studying the Greek fathers in Constantinople. After the Restoration he became Lucasian professor of mathematics at Cambridge and chaplain to Charles II., who called him the best scholar in England. Celebrated for the length of his sermons, Barrow had nevertheless a readiness at sharp repartee which made him formidable on occasion. "I am yours, Doctor, to the knee-strings," said the Earl of Rochester, meeting him at court and seeking amusement at his expense. "I am yours, my lord, to the shoe-tie," answered the Doctor, bowing still lower than the Earl had done. "Yours, Doctor, to the ground," said Rochester. "Yours, ray lord, to the centre of the earth," answered Barrow with another bow. "Yours. Doctor, to the lowest pit of hell," said Rochester, as he imagined, in conclusion. "There, my lord, I must leave you!" was the immediate answer.

SLANDER

General declamations against vice and sin are indeed excellently useful, as rousing men to consider and look about them; but they do often want effect, because they only raise confused apprehensions of things, and indeterminate propensions to action, which usually, before men thoroughly perceive or resolve what they should practice, do decay and vanish. As he that cries out "Fire!" doth stir up people, and inspireth them with a kind of hovering tendency every way, yet no man thence to purpose moveth until he be distinctly informed where the mischief is; then do they, who apprehend themselves concerned, run hastily to oppose it: so, till we particularly discern where our offenses lie (till we distinctly know the heinous nature and the mischievous consequences of them), we scarce will effectually apply ourselves to correct them. Whence it is requisite that men should be particularly acquainted with their sins, and by proper arguments be dissuaded from them.

In order whereto I have now selected one sin to describe, and dissuade from, being in nature as vile, and in practice as common, as any other whatever that hath prevailed among men. It is slander, a sin which in all times and places hath been epidemical and rife, but which especially doth seem to reign and rage in our age and country.

There are principles innate to men, which ever have, and ever will, incline them to this offense. Eager appetites to secular and sensual goods; violent passions, urging the prosecution of what men affect; wrath and displeasure against those who stand in the way of compassing their desires; emulation and envy towards those who happen to succeed better, or to attain a greater share in such things; excessive self-love; unaccountable malignity and vanity are in some degrees connatural to all men, and ever prompt them to this dealing, as appearing the most efficacious, compendious, and easy way of satisfying such appetites, of promoting such designs, of discharging such passions. Slander thence hath always been a principal engine whereby covetous, ambitious, envious, ill-natured, and vain persons have striven to supplant their competitors and advance themselves; meaning thereby to procure, what they chiefly prize and like, wealth, or dignity, or reputation, favor and power in the court, respect and interest with the people.

But from especial causes our age peculiarly doth abound in this practice; for, besides the common dispositions inclining thereto, there are conceits newly coined, and greedily entertained by many, which seem purposely leveled at the disparagement of piety, charity, and justice, substituting interest in the room of conscience, authorizing and commending for good and wise, all ways serving to private advantage. There are implacable dissensions, fierce animosities, and bitter zeals sprung up; there is an extreme curiosity, niceness, and delicacy of judgment; there is a mighty affectation of seeming wise and witty by any means; there is a great unsettlement of mind, and corruption of manners, generally diffused over people; from which sources it is no wonder that this flood hath so overflown, that no banks can restrain it, no fences are able to resist it; so that ordinary conversation is full of it, and no demeanor can be secure from it.

If we do mark what is done in many (might I not say, in most?) companies, what is it but one telling malicious stories of, or fastening odious characters upon, another? What do men commonly please themselves in so much as in carping and harshly censuring, in defaming and abusing their neighbors? Is it not the sport and divertisement of many to cast dirt in the faces of all they meet with? to bespatter any man with foul imputations? Doth not in every corner a Momus lurk, from the venom of whose spiteful or petulant tongue no eminency of rank, dignity of place, or sacredness of office, no innocence or integrity of life, no wisdom or circumspection in behavior, no good-nature or benignity in dealing and carriage, can protect any person? Do not men assume to themselves a liberty of telling romances, and framing characters concerning their neighbors, as freely as a poet doth about Hector or Turnus, Thersites or Draucus? Do they not usurp a power of playing with, or tossing about, of tearing in pieces their neighbor's good name, as if it were the veriest toy in the world? Do not many having a form of godliness (some of them demurely, others confidently, both without any sense of, or remorse for, what they do) backbite their brethren? Is it not grown so common a thing to asperse causelessly that no man wonders at it, that few dislike, that scarce any detest it? that most notorious calumniators are heard, not only with patience, but with pleasure; yea, are even held in vogue and reverence as men of a notable talent, and very serviceable to their party? so that slander seemeth to have lost its nature and not to be now an odious sin, but a fashionable humor, a way of pleasing entertainment, a fine knack, or curious feat of policy; so that no man at least taketh himself or others to be accountable for what is said in this way? Is not, in fine, the case become such, that whoever hath in him any love of truth, any sense of justice or honesty, any spark of charity towards his brethren, shall hardly be able to satisfy himself in the conversations he meeteth; but will be tempted, with the holy prophet, to wish himself sequestered from society, and cast into solitude; repeating those words of his, "Oh, that I had in the wilderness a lodging-place of wayfaring men, that I might leave my people, and go from them: for they are ... an assembly of treacherous men, and they bend their tongues like their bow for lies"? This he wished in an age so resembling ours, that I fear the description with equal patness may suit both: "Take ye heed" (said he then, and may we not advise the like now?) "every one of his neighbor, and trust ye not in any brother: for every brother will utterly supplant, and every neighbor will walk with slanders. They will deceive every one his neighbor, and will not speak the truth; they have taught their tongue to speak lies, and weary themselves to commit iniquity."

Such being the state of things, obvious to experience, no discourse may seem more needful, or more useful, than that which serveth to correct or check this practice: which I shall endeavor to do (1) by describing the nature, (2) by declaring the folly of it: or showing it to be very true which the wise man here asserteth, "He that uttereth slander is a fool." Which particulars I hope so to prosecute, that any man shall be able easily to discern, and ready heartily to detest this practice.

1. For explication of its nature, we may describe slander to be the uttering false (or equivalent to false, morally false) speech against our neighbor, in prejudice to his fame, his safety, his welfare, or concernment in any kind, out of malignity, vanity, rashness, ill-nature, or bad design. That which is in Holy Scripture forbidden and reproved under several names and notions: of bearing false witness, false accusation, railing censure, sycophantry, talebearing, whispering, backbiting, supplanting, taking up reproach: which terms some of them do signify the nature, others denote the special kinds, others imply the manners, others suggest the ends of this practice. But it seemeth most fully intelligible by observing the several kinds and degrees thereof; as also by reflecting on the divers ways and manners of practicing it.

The principal kinds thereof I observe to be these:--

1. The grossest kind of slander is that which in the Decalogue is called, bearing false testimony against our neighbor; that is, flatly charging him with acts which he never committed, and is nowise guilty of. As in the case of Naboth, when men were suborned to say, "Naboth did blaspheme God and the king," and as was David's case, when he thus complained, "False witnesses did rise up, they laid to my charge things that I knew not of." This kind in the highest way (that is, in judicial proceedings) is more rare; and of all men, they who are detected to practice it are held most vile and infamous, as being plainly the most pernicious and perilous instruments of injustice, the most desperate enemies of all men's right and safety that can be. But also out of the court there are many knights-errant of the poet, whose business it is to run about scattering false reports; sometimes loudly proclaiming them in open companies, sometimes closely whispering them in dark corners; thus infecting conversation with their poisonous breath: these no less notoriously are guilty of this kind, as bearing always the same malice and sometimes breeding as ill effects.

2. Another kind is, affixing scandalous names, injurious epithets, and odious characters upon persons, which they deserve not. As when Corah and his accomplices did accuse Moses of being ambitious, unjust, and tyrannical; when the Pharisees called our Lord an impostor, a blasphemer, a sorcerer, a glutton and wine-bibber, an incendiary and perverter of the people, one that spake against Caesar, and forbade to give tribute; when the Apostles were charged with being pestilent, turbulent, factious, and seditious fellows. This sort being very common, and thence in ordinary repute not so bad, yet in just estimation may be judged even worse than the former, as doing to our neighbor more heavy and more irreparable wrong. For it imposeth on him really more blame, and that such which he can hardly shake off; because the charge signifies habits of evil, and includeth many acts; then, being general and indefinite, can scarce be disproved. He, for instance, that calleth a sober man drunkard doth impute to him many acts of such intemperance (some really past, others probably future), and no particular time or place being specified, how can a man clear himself of that imputation, especially with those who are not thoroughly acquainted with his conversation? So he that calleth a man unjust, proud, perverse, hypocritical, doth load him with most grievous faults, which it is not possible that the most innocent person should discharge himself from.

3. Like to that kind is this: aspersing a man's actions with harsh censures and foul terms, importing that they proceed from ill principles, or tend to bad ends; so as it doth not or cannot appear. Thus, when we say of him that is generously hospitable, that he is profuse; of him that is prudently frugal, that he is niggardly; of him that is cheerful and free in his conversation, that he is vain or loose; of him that is serious and resolute in a good way, that he is sullen or morose; of him that is conspicuous and brisk in virtuous practice, that it is ambition or ostentation which prompts him; of him that is close and bashful in the like good way, that it is sneaking stupidity, or want of spirit; of him that is reserved, that it is craft; of him that is open, that it is simplicity in him; when we ascribe a man's liberality and charity to vainglory or popularity; his strictness of life, and constancy in devotion, to superstition, or hypocrisy. When, I say, we pass such censures, or impose such characters on the laudable or innocent practice of our neighbors, we are indeed slanderers, imitating therein the great calumniator, who thus did slander even God himself, imputing his prohibition of the fruit unto envy towards men; "God," said he, "doth know that in the day ye eat thereof, your eyes shall be opened, and ye shall be as gods, knowing good and evil;" who thus did ascribe the steady piety of Job, not to a conscientious love and fear of God, but to policy and selfish design: "Doth Job fear God for naught?"

Whoever, indeed, pronounceth concerning his neighbor's intentions otherwise than as they are evidently expressed by words, or signified by overt actions, is a slanderer; because he pretendeth to know, and dareth to aver, that which he nowise possibly can tell whether it be true; because the heart is exempt from all jurisdiction here, is only subject to the government and trial of another world; because no man can judge concerning the truth of such accusations, because no man can exempt or defend himself from them: so that apparently such practice doth thwart all course of justice and equity.