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WHILE not only every personal artifice is employed by a few heated and inconsiderate spirits, to practise upon the passions of the people, but the public papers are made the channel of the most inflammatory and pernicious doctrines, tending to the subversion of all private security and genuine liberty; it would be cupable in those who understand and value the true interests of the community to be silent spectators. It is, however, a common observation, that men, bent upon mischief, are more active in the pursuit of their object, than those who aim at doing good. Hence it is in the present moment, we see the most industrious efforts to violate, the constitution of this state, to trample upon the rights of the subject, and to chicane or infringe the most solemn obligations of treaty…
The persons alluded to, pretend to appeal to the spirit of Whiggism, while they endeavour to put in motion all the furious and dark passions of the human mind. The spirit of Whiggism is generous, humane, beneficent and just. These men inculcate revenge, cruelty, persecution, and perfidy. The spirit of Whiggism cherishes legal liberty, holds the rights of every individual sacred, condemns or punishes no man without regular trial and conviction of some crime declared by antecedent laws, reprobates equally the punishment of the citizen by arbitrary acts of legislature, as by the lawless combinations of unauthorized individuals:— While these men are advocates for expelling a large number of their fellow-citizens unheard, untried; or if they cannot effect this, are for disfranchising them, in the face of the constitution, without the judgment of their peers, and the contrary to the law of the land.
The 13th article of the constitution declares, “that no member of this state shall be disfranchised or defrauded of any of the rights or privileges sacred to the subjects of this state by the constitution, unless by the law of the land or the judgment of his peers.” If we enquire what is meant by the law of the land, the best commentators will tell us, that it means due process of law, that is, by indictment or presentment of good and lawful men, and trial and conviction in consequence…
If there had been no treaty in the way, the legislature might, by name, have attained particular persons of high treason for crimes committed during the war, but independent of the treaty it could not, and cannot, without tyranny, disfranchise or punish whole classes of citizens by general discriptions, without trial and conviction of offences known by laws previously established declaring the offence and prescribing the penalty.
This is a dictate of natural justice, and a fundamental principle of law and liberty.
Nothing is more common than for a free people, in times of heat and violence, to gratify momentary passions, by letting into the government, principles and precedents which afterwards prove fatal to themselves. Of this kind is the doctrine of disqualification, disfranchisement and banishment by acts of legislature. The dangerous consequences of this power are manifest. If the legislature can disfranchise any number of citizens at pleasure by general descriptions, it may soon confide all the votes to a small number of partizens, and establish an aristocracy or an oligarchy; if it may banish at discretion all those whom particular circumstances render obnoxious, without hearing or trial, no man can be safe, nor know when he may be the innocent victim of a prevailing faction. The name of liberty applied to such a government would be a mockery of common sense.
The English Whigs, after the revolution, from an overweening dread of popery and the Pretender, from triennial, voted the parliament septennial.-They have been trying to undo this false step in vain, and are repenting the effects of their folly in the over-grown power of the new family. Some imprudent Whigs among us, from resentment to those who have taken the opposite side (and many of them from worse motives) would corrupt the principles of our government, and furnish precedents for future usurpations on the rights of the community.
Let the people beware of such Counsellors.-However, a few designing men may rise in consequence, and advance their private interests by such expedients, the people, at large, are sure to be the losers in the event whenever they suffer a departure from the rules of general and equal justice, or from the true principles of universal liberty.
These men, not only overleap the barriers of the constitution without remorse, but they advise us to become the scorn of nations, by violating the solemn engagements of the United States. They endeavour to mould the Treaty with Great-Britain, into such form as pleases them, and to make it mean any thing or nothing as suits their views.-They tell us, that all the stipulations, with respect to the Tories, are merely that Congress will recommend, and the States may comply or not as they please.
But let any man of sense and candour read the Treaty, and it will speak for itself. The fifth article is indeed recommendatory; but the sixth is as positive as words can make it. “There shall be no future confiscations made, nor prosecutions commenced against any person or persons, for, or by reason of the part which he or they may have taken in the present war, and no person shall, on that account, suffer any future loss or damage, either in his person, liberty, or property.”
As to the restoration of confiscated property which is the subject of the fifth article, the states may restore or not as they think proper, because Congress engage only to recommend; but there is not a word about recommendation in the 6th article…
The sound and ingenuous construction of the two articles taken collectively, is this-that where the property of any persons, other than those who have been in arms against the United States, had been actually confiscated and themselves proscribed, there Congress are to recommend a restoration of estates, rights and properties; and with respect to those who had been in arms, they are to recommend permission for them to remain a twelvemonth in the country to solicit a like restoration: But with respect to all those who were not in this situation, and who had not already been the objects of confiscation and banishment, they were to be absolutely secured from all future injury to person, liberty or property.
To say that this exemption from positive injury, does not imply a right to live among us as citizens, is a pitiful sophistry; it is to say that the banishment of a person from his country, connexions and resources (one of the greatest punishments that can befal a man) is no punishment at all.
The meaning of the word liberty has been contested. Its true sense must be the enjoyment of the common privileges of subjects under the same government. There is no middle line of just construction between this sense and a mere exemption from personal imprisonment! If the last were adopted, the stipulation would become nugatory; and by depriving those who are the subjects of it, of the protection of government, it would amount to a virtual confiscation and banishment; for they could not have the benefit of the laws against those who should be aggressors.
Should it be said that they may receive protection without being admitted to a full enjoyment of the privileges of citizens, this must be either matter of right under the treaty, or matter of grace in the government. If the latter, the government may refuse it, and then the objection presents itself, that the treaty would by this construction be virtually defeated; if matter of right, then it follows that more is intended by the word liberty, than a mere exemption from imprisonment, and where shall the line be drawn-not a capricious and arbitrary line, but one warranted by rational and legal construction?
To say that by espousing the cause of Great-Britain they became aliens, and that it will satisfy the treaty to allow them the same protection to which aliens are entitled-is to admit that subjects may at pleasure renounce their allegiance to the state of which they are members, and devote themselves to a foreign jurisdiction; a principle contrary to law and subversive of government. But even this will not satisfy the treaty; for aliens cannot hold real property under our government; and if they are aliens, all their real estates belong to the public. This will be to all intents and purposes, a confiscation of property. But this is not all, how does it appear that the persons who are thus to be stripped of their citizenship, have been guilty of such an adherence to the enemy, as in legal contemplation amounts to a crime. Their merely remaining in their possessions under the power of the conqueror does not imply this; but is executed by the laws and customs of all civilized nations. To adjudge them culpable, they must be first tried and convicted; and this the treaty forbids. These are the difficulties involved, by recurring to subtle and evasive instead of simple and candid construction, which will teach us that the stipulations in the treaty, amount to an amnesty and act of oblivion.
There is a very simple and conclusive point of view in which this subject may be placed. No citizen can be deprived of any right which the citizens in general are entitled to, unless forfeited by some offence. It has been seen that the regular and constitutional mode of ascertaining whether this forfeiture has been incurred, is by legal process, trial and conviction. This ex vi termini, supposes prosecution. Now consistent with the treaty there can be no future prosecution for any thing done on account of the war. Can we then do by act of legislature, what they treaty disables us from doing by due course of law? This would be to imitate the Roman General, who having promised Antiochus to restore half his vessels, caused them to be sawed in two before their delivery; or the Plate, who having promised the Thebans to restore their prisoners, had them first put to death and returned them dead.
Such fraudulent subterfuges are justly considered more odious than an open and avowed violation of treaty.
When these posture-masters in logic are driven from this first ground of the meaning of the treaty; they are forced to that of attacking the right of Congress to make such a stipulation, and arraigning the impudence of Great-Britain in attempting to make terms for our own subjects. But here as every where else, they are only successful in betraying their narrowness and ignorance.
Does not the act of confederation place the exclusive right of war and peace in the United States in Congress? Have they not the sole power of making treaties with foreign nations? Are not these among the first rights of sovereignty, and does not the delegation of them to the general confederacy, so far abridge the sovereignty of each particular state? Would not a different doctrine involve the contradiction of imperium in imperio? What reasonable limits can be assigned to these prerogatives of the union, other than the general safety and the fundamentals of the constitution? Can it be said that a treaty for arresting the future operation of positive acts of legislature, and which has indeed no other effect than that of a pardon for past offences, committed against these acts, is an attack upon the fundamentals of the state constitutions? Can it be denied that the peace which was made, taken collectively, was manifestly for the general good; that it was even favourable to the solid interests of this country, beyond the expectation of the most sanguine? If this cannot be denied; and none can deny it who know either the value of the objects gained by the treaty, or the necessity these states were under at the time of making peace?-It follows that Congress and their Ministers acted wisely in making the treaty which has been made; and it follows from this, that these states are bound by it, and ought religiously to observe it…
Viewing the subject in every possible light, there is not a single interest of the community but dictates moderation rather than violence. That honesty is still the best policy; that justice and moderation are the surest supports of every government, are maxims, which however they may be called trite at all times true, though too seldom regarded, but rarely neglected with impunity. Were the people of America, with one voice, to ask, What shall we do to perpetuate our liberties and secure our happiness? The answer would be, “govern well” and you have nothing to fear either from internal disaffection or external hostility. Abuse not the power you possess, and you need never apprehend its diminution or loss. But if you make a wanton use of it, if you furnish another example, that despotism may debase the government of the many as well as the few, you like all others that have acted the same part, will experience that licentiousness is the fore runner to slavery.
How wise was that policy of Augustus, who after conquering his enemies, when the papers of Brutus were brought to him, which would have disclosed all his secret associates, immediately ordered them to be burnt. He would not even know his enemies, that they might cease to hate when they had nothing to fear…
THE principles of all the arguments I have used or shall use, lie within the compass of a few simple propositions, which, to be assented to, need only to be stated.
FIRST, That no man can forfeit or be justly deprived, without his consent, of any right, to which as a member of the community he is entitled, but for some crime incurring the forfeiture.
SECONDLY, That no man ought to be condemned unheard, or punished for supposed offences, without having an opportunity of making his defence.
THIRDLY, That a crime is an act committed or omitted, in violation of a public law, either forbidding or commanding it.
FOURTHLY, That a prosecution is in its most precise signification, an inquiry or mode of ascertaining, whether a particular person has committed, or omitted such act.
FIFTHLY, That duties and rights as applied to subjects are reciprocal; or in other words, that a man cannot be a citizen for the purpose of punishment, and not a citizen for the purpose of privilege…
IT has been urged, in support of the doctrines under consideration, that every government has a right to take precautions for its own security, and to prescribe the terms on which its rights shall be enjoyed.
ALL this is true when understood with proper limitations; but when rightly understood will not be bound to justify the conclusions, which have been drawn from the premises.
IN the first formation of a government the society may multiply its precautions as much, and annex as many conditions to the enjoyment of its rights, as it shall judge expedient; but when it has once adopted a constitution, that constitution must be the measure of its discretion, in providing for its own safety, and in prescribing the conditions upon which its privileges are to be enjoyed. If the constitution declares that persons possessing certain qualifications shall be entitled to certain rights, while that constitution remains in force, the government which is the mere creature of the constitution, can divest no citizen, who has the requisite qualifications, of his corresponding rights. It may indeed enact laws and annex to the breach of them the penalty of forfeiture; but before that penalty can operate, the existence of the fact, upon which it is to take place, must be ascertained in that mode which the constitution and the fundamental laws have provided. If trial by jury is the mode known and established by that constitution and those laws, the persons who administer the government, in deviating from that course, will be guilty of usurpation. If the constitution declares that the legislative power of the state shall be vested in one set of men and the judiciary power in another: and those who are appointed to act in a legislative capacity undertake the office of judges, if, instead of confining themselves to passing laws, with proper sanctions to enforce their observance, they go out of their province to decide who are the violators of those laws, they subvert the constitution and erect a tyranny. If the constitution were even silent on particular points, those, who are entrusted with its power, would be bound in exercising their discretion to consult and pursue its spirit, and to conform to the dictates of reason and equity; if, instead of this, they should undertake to declare whole classes of citizens disfranchised and excluded from the common rights of the society, without hearing, trial, examination or proof; if, instead of waiting to take away the rights of citizenship from individuals, till the state has convicted them of crimes, by which they are to lose them, before the ordinary and regular tribunal, they institute an inquisition into mens consciences, and oblige them to give up their privileges, or undertake to interpret the law at the hazard of perjury; they expose themselves to the imputation of injustice and oppression.
THE right of a government to prescribe the conditions, on which its privileges shall be enjoyed, is bounded with respect to those who are already included in the compact, by its original conditions; in admitting strangers it may add new ones; but it cannot without a breach of the social compact deprive those, who have been once admitted, of their rights, unless for some declared cause of forfeiture authenticated with the solemnities required by the subsisting compact.
THE rights too of a republican government are to be modified and regulated by the principles of such a government. These principles dictate, that no man shall lose his rights without hearing and conviction, before the proper tribunal; that previous to his disfranchisement, he shall have the full benefit of the laws to make his defence; and that his innocence shall be presumed till his guilt has been proved. These with many other maxims, never to be forgotten in any but tyrannical governments, oppose the aims of those, who quarrel with the principles of Phocion.
CASES indeed of extreme necessity are exemptions to all general rules; but these only exist, when it is manifest the safety of the community is in imminent danger. Speculations of possible danger never can be justifying causes of departures from principles on which in the ordinary course of things all private security depends— from principles which constitute the essential distinction between free and arbitrary governments.
WHEN the advocates for legislative discriminations are driven from one subterfuge to another, their last resting place is— that this is a new case, the case of a revolution. Your principles are all right say they, in the ordinary course of society, but they do not apply to a situation like ours. This is opening a wilderness, through all the labyrinths of which, it is impossible to pursue them: The answer to this must be, that there are principles eternally true and which apply to all situations; such as those that have been already enumerated— that we are not now in the midst of a revolution but have happily brought it to a successful issue— that we have a constitution formed as a rule of conduct— that the frame of our government is determined and the general principles of it settled— that we have taken our station among nations, have claimed the benefit of the laws which regulate them, and must in our turn be bound by the same laws— that those eternal principles of social justice forbid the inflicting punishment upon citizens, by an abridgement of rights, or in any other manner, without conviction of some specific offence by regular trial and condemnation— that the constitution we have formed makes the trial by jury the only proper mode of ascertaining the delinquences of individuals— that legislative discriminations, to supersede the necessity of inquiry and proof, would be an usurpation on the judiciary powers of the government, and a renunciation of all the maxims of civil liberty— that by the laws of nations and the rules of justice, we are bound to observe the engagements entered into on our behalf, by that power which is invested with constitutional prerogative of treaty— and that the treaty we have made in its genuine sense, ties up the hands of government from any species of future prosecution or punishment, on account of the part taken by individuals in the war.
AMONG the extravagancies with which these prolific times abound, we hear it often said, that the constitution being the creature of the people, their sense with respect to any measure, if it even stand in opposition to the constitution, will sanctify and make it right.
HAPPILY, for us, in this country, the position is not to be controverted; that the constitution is the creature of the people; but it does not follow that they are not bound by it, while they suffer it to continue in force; nor does it follow, that the legislature, which is, on the other hand, a creature of the constitution, can depart from it, on any presumption of the contrary sense of the people.
THE constitution is the compact made between the society at large and each individual. The society therefore cannot, without breach of faith and injustice, refuse to any individual, a single advantage which he derives under that compact, no more than one man can refuse to perform his argeement with another. If the community have good reasons for abrogating the old compact and establishing a new one, it undoubtedly has a right to do it; but until the compact is dissolved with the same solemnity and certainty with which it was made, the society, as well as individuals, are bound by it.
ALL the authority of the legislature is delegated to them under the constitution; their rights and powers are there defined; if they exceed them, ’tis a treasonable usurpation upon the power and majesty of the people; and by the same rule that they may take away from a single individual the rights he claims under the constitution, they may erect themselves into perpetual dictators. The sense of the people, if urged in justification of the measure, must be considered as a mere pretext; for that sense cannot appear to them in a form so explicit and authoritative, as the constitution under which they act; and if it could appear with equal authenticity, it could only bind, when it had been preceded by a declared change in the form of government.
THE contrary doctrine serves to undermine all those rules, by which individuals can know their duties and their rights, and to convert the government into a government of will not of laws…
The great majority of those, who took part against us, did it from accident, from the dread of the British power, and from the influence of others to whom they had been accustomed to look up. Most of the men, who had that kind of influence are already gone: The residue and their adherents must be carried along by the torrent; and with very few exceptions, if the government is mild and just, will soon come to view it with approbation and attachment…
THERE is a bigotry in politics, as well as in religions, equally pernicious in both— The zealots, of either description, are ignorant of the advantage of a spirit of toleration: It was a long time before the kingdoms of Europe were convinced of the folly of persecution, with respect to those, who were schismatics from the established church. The cry was, these men will be equally the disturbers of the hierarchy and of the state. While some kingdoms were impoverishing and depopulating themselves, by their severities to the nonconformists, their wiser neighbours were reaping the fruits of their folly, and augmenting their own numbers, industry and wealth, by receiving with open arms the persecuted fugitives. Time and experience have taught a different lesson; and there is not an enlightened nation, which does not now acknowledge the force of this truth, that whatever speculative notions of religion may be entertained, men will not on that account, be enemies to a government, that affords them protection annd security. The same spirit of toleration in politics, and for the same reasons, has made great progress among mankind, of which the history of most modern revolutions is a proof. Unhappily for this state, there are some among us, who possess too much influence, that have motives of personal ambition and interest to shut their minds against the entrance of that moderation, which the real welfare of the community teaches…
I SHALL now with a few general reflections conclude.
THOSE, who are at present entrusted with power, in all these infant republics, hold the most sacred deposit that ever was confided to human hands. ’Tis with governments as with individuals, first impressions and early habits give a lasting bias to the temper and character. Our governments hitherto have no habits. How important to the happiness not of America alone, but of mankind, that they should acquire good ones.
IF we set out with justice, moderation, liberality, and a scrupulous regard to the constitution, the government will acquire a spirit and tone, productive of permanent blessings to the community. If on the contrary, the public councils are guided by humour, passion, and prejudice; if from resentment to individuals, or a dread of partial inconveniences, the constitution is slighted or explained away, upon every frivolous pretext, the future spirit of government will be feeble, distracted and arbitrary. The rights of the subject will be the sport of every party vicissitude. There will be no settled rule of conduct, but every thing will fluctuate with the alternative prevalency of contending factions.
THE world has its eye upon America. The noble struggle we have made in the cause of liberty, has occasioned a kind of revolution in human sentiment. The influence of our example has penetrated the gloomy regions of despotism, and has pointed the way to enquiries, which may shake it to its deepest foundations. Men begin to ask every where, who is this tyrant, that dares to build his greatness on our misery and degradation? What commission has he to sacrifice millions to the wanton appetites of himself, and the few minions that surround his throne?
To ripen inquiry into action, it remains for us to justify the revolution by its fruit.
IF the consequences prove, that we really have asserted the cause of human happiness, what may not be expected from so illustrious an example?— In a greater or less degree, the world will bless and imitate!
BUT if experience, in this instance, verifies the lesson long taught by the enemies of liberty;— that the bulk of mankind are not fit to govern themselves, that they must have a master, and were only made for the rein and the spur: We shall then see the final triumph of despotism over liberty— The advocates of the latter must acknowledge it to be an ignis fatuus, and abandon the pursuit. With the greatest advantages for promoting it, that ever a people had, we shall have betrayed the cause of human nature.
LET those in whose hands it is placed, pause for a moment, and contemplate with an eye of reverence, the vast trust committed to them. Let them retire into their own bosoms and examine the motives which there prevail. Let them ask themselves this solemn question— Is the sacrifice of a few mistaken, or criminal individuals, an object worthy of the shifts to which we are reduced to evade the constitution and the national engagements? Then let them review the arguments that have been offered with dispassionate candour; and if they even doubt the propriety of the measures, they may be about to adopt, let them remember, that in a doubtful case, the constitution ought never to be hazarded, without extreme necessity.