Wednesday, July 27, 2011

Smith: War and the National Debt

From the concluding chapter of The Wealth of Nations: 

The progress of the enormous debts which at present oppress, and will in the long-run probably ruin, all the great nations of Europe has been pretty uniform. Nations, like private men, have generally begun to borrow upon what may be called personal credit, without assigning or mortgaging any particular fund for the payment of the debt; and when this resource has failed them, they have gone on to borrow upon assignments or mortgages of particular funds. . . .

The ordinary expence of the greater part of modern governments in time of peace being equal or nearly equal to their ordinary revenue, when war comes they are both unwilling and unable to increase their revenue in proportion to the increase of their expence. They are unwilling for fear of offending the people, who, by so great and so sudden an increase of taxes, would soon be disgusted with the war; and they are unable from not well knowing what taxes would be sufficient to produce the revenue wanted. The facility of borrowing delivers them from the embarrassment which this fear and inability would otherwise occasion. By means of borrowing they are enabled, with a very moderate increase of taxes, to raise, from year to year, money sufficient for carrying on the war, and by the practice of perpetually funding they are enabled, with the smallest possible increase of taxes, to raise annually the largest possible sum of money. In great empires the people who live in the capital, and in the provinces remote from the scene of action, feel, many of them, scarce any inconveniency from the war; but enjoy, at their ease, the amusement of reading in the newspapers the exploits of their own fleets and armies. To them this amusement compensates the small difference between the taxes which they pay on account of the war, and those which they had been accustomed to pay in time of peace. They are commonly dissatisfied with the return of peace, which puts an end to their amusement, and to a thousand visionary hopes of conquest and national glory from a longer continuance of the war.

The return of peace, indeed, seldom relieves them from the greater part of the taxes imposed during the war. These are mortgaged for the interest of the debt contracted in order to carry it on. If, over and above paying the interest of this debt, and defraying the ordinary expence of government, the old revenue, together with the new taxes, produce some surplus revenue, it may perhaps be converted into a sinking fund for paying off the debt. But, in the first place, this sinking fund, even supposing it should be applied to no other purpose, is generally altogether inadequate for paying, in the course of any period during which it can reasonably be expected that peace should continue, the whole debt contracted during the war; and, in the second place, this fund is almost always applied to other purposes. . . .

Were the expence of war to be defrayed always by a revenue raised within the year, the taxes from which that extraordinary revenue was drawn would last no longer than the war. The ability of private people to accumulate, though less during the war, would have been greater during the peace than under the system of funding. War would not necessarily have occasioned the destruction of any old capitals, and peace would have occasioned the accumulation of many more new. Wars would in general be more speedily concluded, and less wantonly undertaken. The people feeling, during the continuance of the war, the complete burden of it, would soon grow weary of it, and government, in order to humour them, would not be under the necessity of carrying it on longer than it was necessary to do so. The foresight of the heavy and unavoidable burdens of war would hinder the people from wantonly calling for it when there was no real or solid interest to fight for. . . .

The practice of funding has gradually enfeebled every state which has adopted it. The Italian republics seem to have begun it. Genoa and Venice, the only two remaining which can pretend to an independent existence, have both been enfeebled by it. Spain seems to have learned the practice from the Italian republics, and (its taxes being probably less judicious than theirs) it has, in proportion to its natural strength, been still more enfeebled. The debts of Spain are of very old standing. It was deeply in debt before the end of the sixteenth century, about a hundred years before England owed a shilling. France, notwithstanding all its natural resources, languishes under an oppressive load of the same kind. The republic of the United Provinces is as much enfeebled by its debts as either Genoa or Venice. Is it likely that in Great Britain alone a practice which has brought either weakness or desolation into every other country should prove altogether innocent? . . .

Smith: Illusions of Empire

These passages are drawn from the concluding section of The Wealth of Nations. Smith notes that the American colonists are obligated in justice to contribute to the public debts Britain acquired in their behalf, and he is convinced that everything will fall to pieces in America in the absence of Britain's protective hand. He wants the Americans to contribute; if that were impracticable, however, Britain would have to awake from her golden dream. If the project of empire could not be completed, it ought to be given up.

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It is not contrary to justice that both Ireland and America should contribute towards the discharge of the public debt of Great Britain. That debt has been contracted in support of the government established by the Revolution, a government to which the Protestants of Ireland owe, not only the whole authority which they at present enjoy in their own country, but every security which they possess for their liberty, their property, and their religion; a government to which several of the colonies of America owe their present charters, and consequently their present constitution, and to which all the colonies of America owe the liberty, security, and property which they have ever since enjoyed. That public debt has been contracted in the defence, not of Great Britain alone, but of all the different provinces of the empire; the immense debt contracted in the late war in particular, and a great part of that contracted in the war before, were both properly contracted in defence of America. . . .

No oppressive aristocracy has ever prevailed in the colonies. Even they, however, would, in point of happiness and tranquility, gain considerably by a union with Great Britain. It would, at least, deliver them from those rancorous and virulent factions which are inseparable from small democracies, and which have so frequently divided the affections of their people, and disturbed the tranquillity of their governments, in their form so nearly democratical. In the case of a total separation from Great Britain, which, unless prevented by a union of this kind, seems very likely to take place, those factions would be ten times more virulent than ever. Before the commencement of the present disturbances, the coercive power of the mother country had always been able to restrain those factions from breaking out into anything worse than gross brutality and insult. If that coercive power were entirely taken away, they would probably soon break out into open violence and bloodshed. In all great countries which are united under one uniform government, the spirit of party commonly prevails less in the remote provinces than in the centre of the empire. The distance of those provinces from the capital, from the principal seat of the great scramble of faction and ambition, makes them enter less into the views of any of the contending parties, and renders them more indifferent and impartial spectators of the conduct of all. The spirit of party prevails less in Scotland than in England. In the case of a union it would probably prevail less in Ireland than in Scotland, and the colonies would probably soon enjoy a degree of concord and unanimity at present unknown in any part of the British empire. Both Ireland and the colonies, indeed, would be subjected to heavier taxes than any which they at present pay. In consequence, however, of a diligent and faithful application of the public revenue towards the discharge of the national debt, the greater part of those taxes might not be of long continuance, and the public revenue of Great Britain might soon be reduced to what was necessary for maintaining a moderate peace establishment. . . .

If it should be found impracticable for Great Britain to draw any considerable augmentation of revenue from any of the resources above mentioned, the only resource which can remain to her is a diminution of her expence. In the mode of collecting and in that of expending the public revenue, though in both there may be still room for improvement, Great Britain seems to be at least as Ĺ“conomical as any of her neighbours. The military establishment which she maintains for her own defence in time of peace is more moderate than that of any European state which can pretend to rival her either in wealth or in power. None of those articles, therefore, seem to admit of any considerable reduction of expence. The expence of the peace establishment of the colonies was, before the commencement of the present disturbances, very considerable, and is an expence which may, and if no revenue can be drawn from them ought certainly to be saved altogether. This constant expence in time of peace, though very great, is insignificant in comparison with what the defence of the colonies has cost us in time of war. The last war, which was undertaken altogether on account of the colonies, cost Great Britain, it has already been observed, upwards of ninety millions. The Spanish war of 1739 was principally undertaken on their account, in which, and in the French war that was the consequence of it, Great Britain spent upwards of forty millions, a great part of which ought justly to be charged to the colonies. In those two wars the colonies cost Great Britain much more than double the sum which the national debt amounted to before the commencement of the first of them. Had it not been for those wars that debt might, and probably would by this time, have been completely paid; and had it not been for the colonies, the former of those wars might not, and the latter certainly would not have been undertaken. It was because the colonies were supposed to be provinces of the British empire that this expence was laid out upon them. But countries which contribute neither revenue nor military force towards the support of the empire cannot be considered as provinces. They may perhaps be considered as appendages, as a sort of splendid and showy equipage of the empire. But if the empire can no longer support the expence of keeping up this equipage, it ought certainly to lay it down; and if it cannot raise its revenue in proportion to its expence, it ought, at least, to accommodate its expence to its revenue. If the colonies, notwithstanding their refusal to submit to British taxes, are still to be considered as provinces of the British empire, their defence in some future war may cost Great Britain as great an expence as it ever has done in any former war. The rulers of Great Britain have, for more than a century past, amused the people with the imagination that they possessed a great empire on the west side of the Atlantic. This empire, however, has hitherto existed in imagination only. It has hitherto been, not an empire, but the project of an empire; not a gold mine, but the project of a gold mine; a project which has cost, which continues to cost, and which, if pursued in the same way as it has been hitherto, is likely to cost, immense expence, without being likely to bring any profit; for the effects of the monopoly of the colony trade, it has been shown, are, to the great body of the people, mere loss instead of profit. It is surely now time that our rulers should either realize this golden dream, in which they have been indulging themselves, perhaps, as well as the people, or that they should awake from it themselves, and endeavour to awaken the people. If the project cannot be completed, it ought to be given up. If any of the provinces of the British empire cannot be made to contribute towards the support of the whole empire, it is surely time that Great Britain should free herself from the expence of defending those provinces in time of war, and of supporting any part of their civil or military establishments in time of peace, and endeavour to accommodate her future views and designs to the real mediocrity of her circumstances.

Tucker: On Giving Up the Empire

Of all the contemporary writers on the imperial crisis dividing Great Britain from its American colonies, none was more perceptive than Josiah Tucker, Dean of Gloucester Cathedral. Scarcely remembered, and in any case overshadowed by the great luminaries of the age such as Burke, Smith, Hume, and Gibbon,  Tucker’s writings brilliantly illuminated the nature of the crisis and what, for Britain, was the only possible solution. His two best productions—“The True Interest of Great Britain Set Forth in Regard to the Colonies; And the Only Means of Living in Peace and Harmony with them” (1774) and “A Letter to Edmund Burke” (1775)—are both available online; perversely, the only modern edition of Tucker’s writings, published by Routledge in 1993, retails at over $1500, as if there were some cosmic conspiracy to keep his light from our besotted generation.

Both when I first approached the subject as a graduate student, and then again when I took up the subject in preparation for Peace Pact, I was struck by Tucker’s perspicacity and wit. There follows an extended extract from Peace Pact (without the notes) summarizing Tucker’s outlook on the American crisis: 

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Tucker was as emphatic as Burke on the disutility of force. He conceded that the government, if it acted speedily, “might prevail, and America, however unwilling, be forced to submit.” But the blood and treasure that would be spent in that eventuality, the damage to commerce and manufactures that a hostile spirit would produce, and the impossibility of maintaining “a Superiority in it afterwards for any Length of Time” all argued for the absurdity of the attempt. In the event of a successful war, Britain would face the alternative of “permitting the Colonies to enjoy once more those Advantages of English Liberty, and of an English Constitution, which they had forfeited; or else a Resolution to govern them for the future by arbitrary Sway and despotic Power.” Tucker showed either alternative to be inadmissible, lamenting in the latter case the “baleful Influence this Government a la Prusse would have on every other Part of the British Empire” and in the former the return to the very situation—their ungovernability—the use of force was expected to resolve.

Tucker also rejected the idea of combining colonial representation in Parliament for the purpose of incorporating “America and Great-Britain into one common Empire.” Far from “proving a Means of Reconciliation, and a Center of Union,” the measure would instead “have a Tendency to beget endless Jealousies, Quarrels, and Divisions, between the Mother-Country and the Colonies.”  Tucker saw two great difficulties from this measure: it would, in the first place, import into the British constitution doctrines of representation that would be inimical to the right understanding of parliamentary duty. Tucker shared with Burke and Whately the view that a member of Parliament was obliged to “to take Care of the Interests of all the People in general,” and that he could not, consistently with that duty, “pay any Deference to the Request, Instruction, Remonstrance, or Memorial, of his particular Electors, except in such Cases only herein he is convinced in his Conscience, that the Measures, which they require him to pursue, are not incompatible with the public Good.” Instructions sent by sovereign bodies were characteristic of diplomatic assemblies, but a similar procedure in the case of Parliaments threatened basic values of deliberation for the sake of an acknowledged common good; it seemed plain to Tucker that American notions of representation would challenge the normative order of the British Parliament and perhaps lead subjects at home into disobedience to the laws (since they had not, after all, actually consented to them).

Tucker’s second objection was directed against the assumption that colonial representation in Parliament would establish the legitimacy of parliamentary measures over America. That sanguine view ignored the evident difficulties of dividing powers between the national Parliament and colonial legislatures, based on what was external and internal, and what general and provincial: “who is to judge between the British Parliament and the Provincial Assemblies” when conflicts arose, as they surely would? The “very same Things justly pass under both Denominations, according as they are seen from different Points of View.”  Barracks and fortresses necessary for defense were of a general nature, yet from another view every barrack might be denominated “as an odious Badge of slavery,” and every magazine “a Monument of Tyranny and despotic power, and Prerogative for destroying the few Liberties that were left.”

The proposals for colonial representation in Parliament had carried with them the evident implication, occasionally acknowledged, that “America should become the general Seat of the Empire.” Tucker was at his most mischievous in showing the absurdity of this scheme. “[W]hatever Events may be in the Womb of Time, or whatever Revolutions may happen in the Rise and Fall of Empires, there is not the least Probability, that this Country should ever become a Province to North-America.” The English would rather be governed by the French than the Americans. He acknowledged that his foresight was limited, but thought “this Island would rather gravitate towards the Continent of Europe, than towards the Continent of America; unless indeed we should add one Extravagance to another, by supposing that these American Heroes are to conquer all the World. And in that Case I do allow, that England must become a Province to America.”  There was, in fact, as much probability of America governing England, as England governing America, and his demonstration of the impossibility of the one gave strength to his condemnation of the other. Having surveyed the extant options, and readily shown the defects of them all, Tucker arrived at his astonishing conclusion: “For if we neither can govern the Americans, nor be governed by them; if we can neither unite with them, nor ought to subdue them;—what remains, but to part with them on as friendly Terms as we can?” Those terms were to declare “them to be a free and independent People, over whom we lay no Claim” and to offer “to guarantee this Freedom and Independence against all foreign Invaders whatever.” The relationship would be reconstructed on the basis of mutual interest and beneficial exchange rather than obedience.

Tucker disposed readily of the proposition that the surrender of sovereignty would mean the sacrifice of the American trade. The reverse was true. The British could have it when it was in the interest of the Americans to do so, and those were, as a practical matter, the very terms on which they enjoyed it now. Besides, there was no better motive for denying Great Britain a trade prompted by interest than the injuries and retaliations incident to a war. Britain had already “become a Kind of a general Mart” for most commodities, and from an economic perspective it was clear that the colonies could not “trade with any other European State to greater Advantage than they can with Great-Britain.” As for fears that the French would take possession of the Colonies, Tucker deemed them “very wild, very extravagant, and absurd.”  The notion supposed that the colonists, “who cannot brook our Government, would like a French one much better,” and that “our mild and limited Government, where Prerogative is ascertained by Law, where every Man is at  Liberty to seek for Redress, and where popular Clamours too often carry every Thing before them,—is nevertheless too severe, too oppressive, and too tyrannical for the Spirits and Genius of Americans to bear; and therefore they will apply to an arbitrary, despotic Government” for their remedy. It was not only that the Americans would not submit to this inglorious yoke; the French themselves should certainly think thrice about it. Could an arbitrary government, Tucker asked, “dispose with such Liberties as a republican Spirit will require”? Could it incorporate, and still remain itself, “An absolute Freedom of the Press! No controul on the Liberty either of Speaking or Writing on Matters of State! Newspapers and Pamphlets filled with the bitterrest invectives against the Measures of Government! Associations formed in every Quarter to cry down Ministerial Hirelings, and their Dependents! The Votes and Resolutions of the Provincial Assemblies to assert their own Authority and Independence! No landing of Troops from Old France to quell Insurrections! No raising of new Levies in America! No quartering of Troops! No Building of Forts, or erecting of Garrisons!” All this fun was to show that France could not turn the balance of power in her favor by seeking dominion over the colonies; at all events, Great Britain, with her superior marine, would have in her hands the means to prevent such an acquisition if it seemed that a revival of French ambitions in America “would really and truly be an Addition of Strength in the political Balance and Scale of Power.”

Tucker’s sketch of the consequences such an abdication would have on the political relations between Great Britain and the American states emphasized the parlous unity of the colonials.  “The Moment a Separation takes Effect,” he wrote, “intestine Quarrels will begin: For it is well known, that the Seeds of Discord and Dissention between Province and Province are now ready to shoot forth; and that they are only kept down by the present Combination of all the Colonies against us, whom they unhappily fancy to be their common enemy.” Renounce the claim of authority, and “the weaker Provinces will intreat our Protection against the stronger; and the less cautious against the more crafty and designing.” Tucker’s vision of Great Britain serving, in effect, as the holder of the balance in America, and being found useful by Americans as “their general Umpires and Referees,” was a highly plausible projection from his line of policy, and bore out his larger argument that the renunciation of all authority over the Americans would actually increase rather than diminish British influence with them. That it would have had momentous consequences for the political structures that emerged in North America after 1776 seems evident, for the centripetal forces operating on the American states after that date were almost all owing to the exigencies, oaths, sacrifices, and common institutions that emerged from the vortex of the War of Independence.  That struggle cast its shadows long after its thunders were hushed in peace. For a generation and more, the great thing that Americans could agree on, when they could agree on almost nothing else, was that the British state, led by wicked and designing ministers, had conducted an infamous attack against the liberties of the American colonies. The development of the American union and the sentiment of American nationalism was bound part and parcel with the divorce from the British nation, and from the bitter passions that engendered.

Tucker shared in many respects Burke’s appreciation of “the spirit of liberty” that animated the American colonists, though he readily distinguished, as all observers did, between the northern and southern continental colonies. Burke had attributed that spirit in northern colonies to their religion. While all varieties of the Protestant religion were “a sort of dissent,” New England offered a refinement on this principle: it was “the dissidence of dissent and the Protestantism of the Protestant religion.” In the southern colonies, by contrast, where “the Church of England forms a large body and has a regular establishment,” the “spirit of liberty” was “still more high and haughty” than in the north. . . . [see here]

Tucker accepted this basic portrait, though he reminded Burke that the first settlers in New England, conceiving “that Dominion was founded in Grace,” were of that strain of Republicans who thought “that they had the best Right in the World both to tax, and to persecute the Ungodly. And they did both, as soon as they got Power into their Hands, in the most open and atrocious manner.” Tucker acknowledged that the “present Dissenters in North-America retain very little of the peculiar Tenets of their Fore-fathers, excepting their Antipathy to our established Religion, and their Zeal to pull down all Orders in Church and State, if found to be superior to their own.” But these surviving traits raised strong doubts over the desirability of continuing “a Connection with a People who are actuated by Principles so very repugnant to our own Constitution both in Church and State, and so diametrically opposite to the Spirit of the Gospel.” The Puritans of Massachusetts, wrote Tucker, were “universally Calvinists of the most inflexible Sort” and professed enemies to popery and Arminiamism, yet they were “no Enemies to religious Establishments.” On the contrary, “their great Aim was, to establish the solemn League and Covenant, as the only System which ought to be admitted into a Christian State. Nor would they have suffered any other religious Persuasion to have existed, if they could have prevented it.”  Though all in favor of “pulling down proud and lordly Prelacy,” they were “most indefatigable in erecting Classes, and Synods, and Elderships, in the genuine Spirit of High-Church, Presbyterian Hierarchy, and armed with the Terrors and Powers of an Inquisition. In short, their Aim was to establish a republican Form of Government built on republican Principles both in Church and State. But, like all other Republicans ancient and modern, they were extremely averse from granting any Portion of that Liberty to others, which they claimed to themselves as their unalienable Birth-Right.” Tucker thought that justice and policy required “That each Religious Persuasion ought to have a full Toleration from the State to worship Almighty God, according to the Dictates of their own Consciences,” but did not think that the Church of England would suffer in the colonies in the event of independence. Noting the “Persecution which the Church of England daily suffers in America, by being denied those Rights which every other Sect of Christians so amply enjoys,” Tucker attributed it to the fact that “The Americans have taken it into their Heads to believe, that an Episcopate would operate as some further Tie upon them” and would be “used as an Engine, under the Masque of Religion, to rivet those Chains, which they imagine we are forging for them.” Were the mother country to surrender its authority, “all their Fears will vanish away, and their Panics be at an End.”  And so it did indeed prove to be.

Nor did Tucker dispute Burke’s contention that the American’s “ungovernable Spirit” of liberty was derived, in the southern colonies, from the “Domination of the Masters over their Slaves.” “For it seems, he that is a Tyrant over his Inferiors is, of Course, a Patriot, and a Leveller in respect to his Superiors.” Tucker did not let pass the opportunity of condemning the institution of “domestic or predial” slavery: it was “the most onerous and expensive Mode of cultivating Land, and of raising Produce, that could be devised.” Much to be preferred, in point of economy and morality, was “the Method of hiring free Persons, and paying them wages,” a fact that demonstrated that the “Laws of Commerce, when rightly understood, do perfectly coincide with the Laws of Morality.”  But his larger point was that the very spirit that made slave-masters “haughty, insolent, and imperious in private Life” also made them “turbulent and factious in respect to the Public.” Republican governments, whether ancient or modern, were consequently “the most insolent and tyrannical upon Earth;” their subjects retained “less of Liberty, both in Form and Substance, than most of the Subjects even of monarchical Governments.” It was useless to appease such people in the hope of keeping them within the British Empire, and all the characteristics to which Burke had pointed in showing the necessity of governing them mildly showed to Tucker, and not unreasonably, that the British could not govern them at all. A man, he said, must have a high opinion of his eloquence who should think he should bind these “High Mightinesses” further than they wished to be bound.

Tucker’s animadversions on the American character, though unkind, were not terribly unjust. The levelling, intolerant, and fanatical ways of New Englanders, imbibed from their Puritan fathers; the haughty, insolent, and imperious ways of the southern gentleman, molded from birth by the institution of slavery—these cultural traits were not only real but also showed little sign of disappearing. Though Tucker took perverse delight in dwelling on the “refractory Behavior” of the colonies, he was far from charging them “with being Sinners above others.” On the contrary, it was the nature of all colonies “to aspire after Independence, and to set up for themselves as soon as ever they find that they are able to subsist, without being beholden to the Mother-Country. And if our Americans have expressed themselves sooner on this Head than others have done, or in a more direct and daring Manner, this ought not to be imputed to any greater Malignity, or Ingratitude in them, than in others, but to that bold free Constitution, which is the Prerogative and Boast of us all.” Employing the familial analogy so characteristic of discourse on the empire, Tucker recognized that America had come of age; for the parents to continue treating the young man like a child would simply confirm him in his childish behavior. Better to throw him out, and then re-establish the relationship on the basis of equal respect and mutual interest.

In terms of immediate policy, Tucker was not as far from Burke as his polemic might indicate. When Burke made his plea for peace—“Not Peace thro’ the Medium of War; not Peace to be hunted thro’ the Labyrinths of intricate and endless Negociations; not Peace to arise out of universal Discord, fomented from Principle, in all Parts of the Empire . . .”—Tucker had asked: “what is this Heaven-born pacific Scheme, of which we have heard so laboured an Encomium? Why truly; if we will grant the Colonies all that they shall require, and stipulate for nothing in Return; then they will be at Peace with us. I believe it; and on these simple Principles of simple Peace-making I will engage to terminate every Difference throughout the World.” Yet Tucker’s plan was vulnerable to the same satire, and in fact his real quarrel with Burke was that he and the Rockingham Whigs would not grant the colonies the freedom and independence that they really wanted, but rather continued to solicit from them an acceptance of their subordination to Parliament.

Madison: Against Religious Assessments

The Memorial and Remonstrance Against Religious Assessments was written by James Madison. George Nicholas, to whom it was sent, found that "no alteration could be made to the remonstrance without injury and immediately had it copied." The memorial is one of the great statements of religious liberty produced during the period of the American Revolution.

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We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration, a Bill printed by order of the last Session of General Assembly, entitled “A Bill establishing a provision for Teachers of the Christian Religion,” and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill,

1. Because we hold it for a fundamental and undeniable truth, “that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence. The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable; because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. True it is, that no other rule exists, by which any question which may divide a Society, can be ultimately determined, but the will of the majority; but it is also true, that the majority may trespass on the rights of the minority.

2. Because if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the co-ordinate departments, more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely, that the metes and bounds which separate each department of power may be invariably maintained; but more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves, nor by an authority derived from them, and are slaves.

3. Because, it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

4. Because, the bill violates that equality which ought to be the basis of every law, and which is more indispensible, in proportion as the validity or expediency of any law is more liable to be impeached. If “all men are by nature equally free and independent,”1 all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of conscience.”2 Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens; so it violates the same principle, by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges, by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations, to believe that they either covet pre-eminencies over their fellow citizens, or that they will be seduced by them, from the common opposition to the measure.

5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth; or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: The second an unhallowed perversion of the means of salvation.

6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself; for every page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them; and not only during the period of miraculous aid, but long after it had been left to its own evidence, and the ordinary care of Providence: Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence, and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies, to trust it to its own merits.

7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries, has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest?

8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty, may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property; by neither invading the equal rights of any Sect, nor suffering any Sect to invade those of another.

9. Because the proposed establishment is a departure from that generous policy, which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be, in its present form, from the Inquisition it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent may offer a more certain repose from his troubles.

10. Because, it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration, by revoking the liberty which they now enjoy, would be the same species of folly which has dishonoured and depopulated flourishing kingdoms.

11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects. Torrents of blood have been spilt in the old world, by vain attempts of the secular arm to extinguish Religious discord, by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs, that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that “Christian forbearance,1 love and charity,” which of late mutually prevailed, into animosities and jealousies, which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law?

12. Because, the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift, ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions; and how small is the former! Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region of it; and countenances, by example the nations who continue in darkness, in shutting out those who might convey it to them. Instead of levelling as far as possible, every obstacle to the victorious progress of truth, the Bill with an ignoble and unchristian timidity would circumscribe it, with a wall of defence, against the encroachments of error.

13. Because attempts to enforce by legal sanctions, acts obnoxious to so great a proportion of Citizens, tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous? and what may be the effect of so striking an example of impotency in the Government, on its general authority.

14. Because a measure of such singular magnitude and delicacy ought not to be imposed, without the clearest evidence that it is called for by a majority of citizens: and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined, or its influence secured. “The people of the respective counties are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly.” But the representation must be made equal, before the voice either of the Representatives or of the Counties, will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence, that a fair appeal to the latter will reverse the sentence against our liberties.

15. Because, finally, “the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience” is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia, as the “basis and foundation of Government,” it is enumerated with equal solemnity, or rather studied emphasis. Either then, we must say, that the will of the Legislature is the only measure of their authority; and that in the plenitude of this authority, they may sweep away all our fundamental rights; or, that they are bound to leave this particular right untouched and sacred: Either we must say, that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State; nay that they may despoil us of our very right of suffrage, and erect themselves into an independant and hereditary assembly: or we must say, that they have no authority to enact into law the Bill under consideration. We the subscribers say, that the General Assembly of this Commonwealth have no such authority: And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may on the one hand, turn their councils from every act which would affront his holy prerogative, or violate the trust committed to them: and on the other, guide them into every measure which may be worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth.

Madison: Retrospective on the Constitution

"A Sketch Never Finished Nor Applied," written by James Madison in the 1830s, seems to have been intended as an introduction for Madison's notes of the federal convention. As the title says, the thing never got finished or applied; it's also seldom quoted, though it is arguably the best short original source for understanding the movement for and character of the federal constitution.  The original is full of abbreviations and other oddities; I've taken the liberty of modernizing the text in a few particulars. 

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As the weakness and wants of man naturally lead to an association of individuals under a Common Authority, whereby each may have the protection of the whole against danger from without, and enjoy in safety within, the advantages of social intercourse, and an exchange of the necessaries & comforts of life; in like manner feeble communities, independent of each other, have resorted to a Union, less intimate, but with common Councils, for the common safety against powerful neighbors, and for the preservation of justice and peace among themselves. Ancient history furnishes examples of these confederal associations, tho’ with a very imperfect account, of their structure, and of the attributes and functions of the presiding Authority. There are examples of modern date also, some of them still existing, the modifications and transactions of which are sufficiently known.

It remained for the British Colonies, now United States, of North America, to add to those examples, one of a more interesting character than any of them: which led to a system without an example ancient or modern, a system founded on popular rights, and so combining a federal form with the forms of individual Republics, as may enable each to supply the defects of the other and obtain the advantages of both.

Whilst the Colonies enjoyed the protection of the parent Country as it was called, against foreign danger; and were secured by its superintending control, against conflicts among themselves, they continued independent of each other, under a common, tho’ limited dependence, on the Parental Authority. When however the growth of the offspring in strength and in wealth, awakened the jealousy and tempted the avidity of the parent, into schemes of usurpation & exaction, the obligation was felt by the former of uniting their counsels and efforts, to avert the impending calamity.

As early as the year 1754, indications having been given of a design in the British government to levy contributions on the Colonies, without their consent; a meeting of Colonial deputies took place at Albany, which attempted to introduce a compromising substitute, that might at once satisfy the British requisitions, and save their own rights from violation. The attempt had no other effect, than by bringing these rights into a more conspicuous view, to invigorate the attachment to them, on the one side; and to nourish the haughty & encroaching spirit on the other.

In 1774, the progress made by Great Britain in the open assertion of her pretensions, and the apprehended purpose of otherwise maintaining them by Legislative enactments and declarations, had been such that the Colonies did not hesitate to assemble, by their deputies, in a formal Congress, authorized to oppose to the British innovations whatever measures might be found best adapted to the occasion; without however losing sight of an eventual reconciliation.

The dissuasive measures of that Congress, being without effect, another Congress was held in 1775, whose pacific efforts to bring about a change in the views of the other party, being equally unavailing, and the commencement of actual hostilities having at length put an end to all hope of reconciliation; the Congress finding moreover that the popular voice began to call for an entire & perpetual dissolution of the political ties which had connected them with Great Britain proceeded on the memorable 4th of July, 1776 to declare the 13 Colonies Independent States.

During the discussions of this solemn Act, a Committee consisting of member from each colony had been appointed, to prepare & digest a form of Confederation, for the future management of the Common interests, which had hitherto been left to the discretion of Congress, guided by the exigencies of the contest, and by the known intentions or occasional instructions of the Colonial Legislatures.

It appears that as early as the 21st of July 1775, a plan entitled “Articles of Confederation & perpetual Union of the Colonies,” had been sketched by Doctor Franklin, the plan being on that day submitted by him to Congress; and though not copied into their Journals remaining on their files in his handwriting. But notwithstanding the term “perpetual” observed in the title, the articles provided expressly for the event of a return of the Colonies to a connection with G. Britain.

This sketch became a basis for the plan reported by the Come on the 12th of July, now also remaining on the files of Congress, in the handwriting of Mr. Dickinson. The plan, though dated after the Declaration of Independence, was probably drawn up before that event; since the name of Colonies, not States is used throughout the draft. The plan reported, was debated and amended from time to time, till the 17th. of November 1777, when it was agreed to by Congress, and proposed to the Legislatures of the States, with an explanatory and recommendatory letter. The ratifications of these by their Delegates in Congress duly authorized took place at successive dates, but were not completed till March 1, 1781, when Maryland who had made it a prerequisite that the vacant lands acquired from the British Crown should be a common fund, yielded to the persuasion that a final & formal establishment of the federal Union & Govt would make a favorable impression not only on other foreign Nations, but on Great Britain herself.

The great difficulty experienced in so framing the federal system as to obtain the unanimity required for its due sanction, may be inferred from the long interval, and recurring discussions, between the commencement and completion of the work; from the changes made during its progress; from the language of Congress when proposing it to the States, which dwelt on the impracticability of devising a system acceptable to all of them; from the reluctant assent given by some; and the various alterations proposed by others; and by tardiness in others again which produced a special address to them from Congress, enforcing the duty of sacrificing local considerations and favorite opinions to the public safety, and the necessary harmony: Nor was the assent of some of the States finally yielded without strong protests against particular articles, and a reliance on future amendments removing their objections.

It is to be recollected, no doubt, that these delays might be occasioned in some degree, by an occupation of the Public Councils both general & local, with the deliberations and measures, essential to a Revolutionary struggle; But there must have been a balance for these causes, in the obvious motives to hasten the establishment of a regular and efficient Government; and in the tendency of the crisis to repress opinions and pretensions, which might be inflexible in another state of things.

The principal difficulties which embarrassed the progress, and retarded the completion of the plan of Confederation, may be traced to
1. the natural repugnance of the parties to a relinquishment of Power;  
2. a natural jealousy of its abuse in other hands than their own;
3. the rule of suffrage among parties unequal in size, but equal in sovereignty;
4. the ratio of Contributions in money and in troops, among parties, whose inequality in size did not correspond with that of their wealth, or of their military or free population;
5. the selection and definition of the powers, at once necessary to the federal head, and safe to the several members.

To these sources of difficulty, incident to the formation of all such Confederacies, were added two others one of a temporary, the other of a permanent nature. The first was the case of the Crown lands, so called because they had been held by the British Crown, and being ungranted to individuals when its authority ceased, were considered by the States within whose charters or asserted limits they lay, as devolving on them; whilst it was contended by the others, that being wrested from the dethroned Authority, by the equal exertions of all, they resulted of right and in equity to the benefit of all. The lands being of vast extent and of growing value, were the occasion of much discussion & heart-burning; and proved the most obstinate of the impediments to an earlier consummation of the plan of federal Government. The State of Maryland the last that acceded to it held out as already noticed, till the 1. March 1781 and then yielded only to the hope that by giving a stable and authoritative character to the Confederation, a successful termination of the Contest might be accelerated. The dispute was happily compromised by successive surrenders of portions of the territory by the States having exclusive claims to it, and acceptances of them by Congress.

The other source of dissatisfaction was the peculiar situation of some of the States, which having no convenient ports for foreign commerce, were subject to be taxed by their neighbors, through whose ports, their commerce was carried on. New Jersey placed between Philadelphia and New York, was likened to a cask tapped at both ends; and North Carolina, between Virginia and South Carolina to a patient bleeding at both arms. The Articles of Confederation provided no remedy for the complaint; which produced a strong protest on the part of New Jersey; and never ceased to be a source of dissatisfaction and discord, until the new Constitution superseded the old.

But the radical infirmity of the “arts. of Confederation” was the dependence of Congress on the voluntary and simultaneous compliance with its Requisitions, by so many independent Communities, each consulting more or less its particular interests and convenience and distrusting the compliance of the others. Whilst the paper emissions of Congress continued to circulate they were employed as a sinew of war, like gold and silver. When that ceased to be the case, and the fatal defect of the political System was felt in its alarming force. The war was merely kept alive and brought to a successful conclusion by such foreign aids and temporary expedients as could be applied; a hope prevailing with many, and a wish with all, that a state of peace, and the sources of prosperity opened by it, would give to the Confederacy in practice, the efficiency which had been inferred from its theory.

The close of the war however brought no cure for the public embarrassments. The States relieved from the pressure of foreign danger, and flushed with the enjoyment of independent and sovereign power; (instead of a diminished disposition to part with it), persevered in omissions and in measures incompatible with their relations to the Federal Government and with those among themselves.

Having served as a member of Congress through the period between March 1780 and the arrival of peace in 1783, I had become intimately acquainted with the public distresses and the causes of them. I had observed the successful opposition to every attempt to procure a remedy by new grants of power to Congress.  I had found moreover that despair of success hung over the compromising provision of April 1783 for the public necessities which had been so elaborately planned, and so impressively recommended to the States. Sympathizing, under this aspect of affairs, in the alarm of the friends of free Government at the threatened danger of an abortive result to the great and perhaps last experiment in its favor, I could not be insensible to the obligation to co-operate as far as I could in averting the calamity. With this view I acceded to the desire of my fellow Citizens of the County that I should be one of its representatives in the Legislature, hoping that I might there best contribute to inculcate the critical posture to which the Revolutionary cause was reduced, and the merit of a leading agency of the State in bringing about a rescue of the Union, and the blessings of liberty staked on it, from an impending catastrophe.

It required but little time after taking my seat in the House of Delegates in May 1784, to discover that however favorable the general disposition of the State might be towards the Confederacy the Legislature retained the aversion of its predecessors to transfers of power from the State to the Govt of the Union; notwithstanding the urgent demands of the Federal Treasury; the glaring inadequacy of the authorized mode of supplying it, the rapid growth of anarchy in the Federal System, and the animosity kindled among the States by their conflicting regulations. . . .

The failure however of the varied propositions in the Legislature, for enlarging the powers of Congress, the continued failure of the efforts of Congress to obtain from them the means of providing for the debts of the Revolution; and of countervailing the commercial laws of Great Britain, a source of much irritation & against which the separate efforts of the States were found worse than abortive; these Considerations with the lights thrown on the whole subject, by the free & full discussion it had undergone led to a general acquiescence in the Resolution passed on the 21st of January 1786, which proposed and invited a meeting of Deputies from all the States [“to take into consideration the trade of the United States; to examine the relative situations and trade of said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress effectually to provide for the same.”]

The resolution had been brought forward some weeks before on the failure of a proposed grant of power to Congress to collect a revenue from commerce, which had been abandoned by its friends in consequence of material alterations made in the grant by a Committee of the whole. . . . Being now revived by [Mr. Tyler], on the last day of the Session, and being the alternative of adjourning without any effort for the crisis in the affairs of the Union, it obtained a general vote; less however with some of its friends from a confidence in the success of the experiment than from a hope that it might prove a step to a more comprehensive & adequate provision for the wants of the Confederacy.

It happened also that Commissioners appointed by Virginia and Maryland to settle the jurisdiction on waters dividing the two States had, apart from their official reports, recommended a uniformity in the regulations of the 2 States on several subjects and particularly on those having relation to foreign trade. It appeared at the time that Maryland had deemed a concurrence of her neighbors, Pennsylvania and Delaware, indispensable in such a case, who for like reasons would require that of their neighbors. So apt and forcible an illustration of the necessity of a uniformity throughout all the States could not but favor the passage of a Resolution which proposed a Convention having that for its object.

The commissioners appointed by the Legislature & who attended the Convention were Edmund Randolph, the attorney of the state, St. George Tucker and James Madison. The designation of the time and place to be proposed for its meeting, and communicated to the states having been left to the Commissioners they named for the time early September and for the place the City of Annapolis avoiding the residences of Congress and large Commercial Cities as liable to suspicions of an extraneous influence.

Although the invited Meeting appeared to be generally favored, five states only assembled; some failing to make appointments, and some of the individuals appointed not hastening their attendance, the result in both cases being ascribed mainly, to a belief that the time had not arrived for such a political reform, as might be expected from a further experience of its necessity.

But in the interval between the proposal of the Convention, and the time of its meeting such had been the advance of public opinion in the desired direction, stimulated as it had been by the effect of the contemplated object, of the meeting, in turning the general attention to the Critical State of things, and in calling forth the sentiments and exertions of the most enlightened and influential patriots, that the Convention thin as it was did not scruple to decline the limited task assigned to it and to recommend to the States a Convention with powers adequate to the occasion. Nor was it unnoticed that the commission of the New Jersey Deputation had extended its object to a general provision for the exigencies of the Union. A recommendation for this enlarged purpose was accordingly reported by a Committee to whom the subject had been referred. It was drafted by Colonel Hamilton, and finally agreed to unanimously in the following form. [See here]

The recommendation was well received by the Legislature of Virginia, which happened to be the first that acted on it, the example of her compliance was made as conciliatory and impressive as possible. The Legislature were unanimous or very nearly so on the occasion, and as a proof of the magnitude and solemnity attached to it, they placed General Washington at the head of the Deputation from the State; and as a proof of the deep interest he felt in the case he overstepped the obstacles to his acceptance of the appointment. . . .

As the public mind had been ripened for a salutary Reform of the political System, in the interval between the proposal and the meeting of the Commissioners at Annapolis, the interval between the last event, and the meeting of Deputies at Philadelphia had continued to develop more and more the necessity and the extent of a systematic provision for the preservation and Government of the Union. Among the ripening incidents was the Insurrection of Shays, in Massachusetts, against her Government; which was with difficulty suppressed, notwithstanding the influence on the insurgents of an apprehended interposition of the Federal troops.

At the date of the Convention, the aspect and retrospect of the political condition of the United States could not but fill the public mind with a gloom which was relieved only by a hope that so select a Body would devise an adequate remedy for the existing and prospective evils so impressively demanding it.

It was seen that the public debt rendered so sacred by the cause in which it had been incurred remained without any provision for its payment. The reiterated and elaborate efforts of Congress to procure from the States a more adequate power to raise the means of payment had failed. The effect of the ordinary requisitions of Congress had only displayed the inefficiency of the authority making them; none of the States having duly complied with them, some having failed altogether or nearly so; and in one instance, that of New Jersey, a compliance was expressly refused; nor was more yielded to the expostulations of members of Congress deputed to her Legislature, than a mere repeal of the law, without a compliance.

The want of Authority in Congress to regulate Commerce had produced in Foreign nations particularly Great Britain, a monopolizing policy injurious to the trade of the U. S., and destructive to their navigation; the imbecility and anticipated dissolution of the Confederacy extinguishing all apprehensions of a Countervailing policy on the part of the U. States.

The same want of a general power over Commerce led to an exercise of the power separately, by the States, which not only proved abortive, but engendered rival, conflicting and angry regulations. Besides the vain attempts to supply their respective treasuries by imposts, which turned their commerce into the neighboring ports, and to coerce a relaxation of the British monopoly of the West Indies navigation, which was attempted by Virginia, the States having ports for foreign commerce, taxed and irritated the adjoining States, trading through them, as New York, Pennsylvania, Virginia and South Carolina. Some of the States, as Connecticut, taxed imports as from Massachusetts, higher than imports even from Great Britain of which Massachusetts complained to Virginia and doubtless to other States. In sundry instances as of New York, New Jersey, Pennsylvania, and Maryland, the navigation laws treated the Citizens of other States as aliens.

In certain cases the Authority of the Confederacy was disregarded, as in violation not only of the Treaty of peace; but of Treaties with France & Holland, which were complained of to Congress.

In other cases the Federal Authority was violated by Treaties & wars with Indians, as by Georgia; by troops raised and kept up without the consent of Congress, as by Massachusetts; by compacts without the consent of Congress, as between Pennsylvania and New Jersey, and between Virginia and Maryland. From the Legislative Journals of Virginia it appears, that a vote refusing to apply for a sanction of Congress was followed by a vote against the communication of the Compact to Congress.

In the internal administration of the States a violation of Contracts had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, of Installment laws, and of the occlusions of the Courts of Justice; although evident that all such interferences affected the rights of other States, relatively creditor, as well as Citizens Creditors within the State.

Among the defects which had been severely felt was that of a uniformity in cases requiring it, as laws of naturalization and bankruptcy, a Coercive authority operating on individuals and a guaranty of the internal tranquility of the States.

As a natural consequence of this distracted and disheartening condition of the union, the Federal Authority had ceased to be respected abroad, and dispositions were shewn there, particularly in Great Britain, to take advantage of its imbecility, and to speculate on its approaching downfall; at home it had lost all confidence and credit; the unstable and unjust career of the States had also forfeited the respect and confidence essential to order and good Government involving a general decay of confidence between man & man. It was found moreover that those least partial to popular Government, or most distrustful of its efficacy were yielding to anticipations, that from an increase of the confusion a Government might result more congenial with their taste or their opinions; whilst those most devoted to the principles and forms of Republics, were alarmed for the cause of liberty itself, at stake in the American Experiment, and anxious for a system that would avoid the inefficacy of a mere confederacy without passing into the opposite extreme of a consolidated government. It was known that there were individuals who had betrayed a bias towards Monarchy and there had always been some not unfavorable to a partition of the Union into several Confederacies; either from a better chance of figuring on a Sectional Theatre, or that the Sections would require stronger Governments, or by their hostile conflicts lead to a monarchical consolidation. The idea of a dismemberment had recently made its appearance in the Newspapers.

Such were the defects, the deformities, the diseases and the ominous prospects, for which the Convention were to provide a remedy, and which ought never to be overlooked in expounding and appreciating the Constitutional Charter, the remedy that was provided.

As a sketch on paper, the earliest perhaps which of a Constitutional Government for the Union (organized into the regular Departments with physical means operating on individuals) to be sanctioned by the people of the States, acting in their original & sovereign character, was contained in a letter from James Madison of April 8 1787 to Governor Randolph.

The feature in the letter which vested in the general Authority a negative on the laws of the States, was suggested by the negative in the head of the British Empire, which prevented collisions between the parts and the whole, and between the parts themselves. It was supposed that the substitution, of an elective and responsible authority for an hereditary and irresponsible one, would avoid the appearance even of a departure from the principle of Republicanism. But although the subject was so viewed in the Convention, and the votes on it were more than once equally divided, it was finally and justly abandoned, as apart from other objections it was not practicable among so many states increasing in number and enacting each of them so many laws. Instead of the proposed negative, the objects of it were left as finally provided for in the Constitution.

On the arrival of the Virginia Deputies at Philadelphia, it occurred to them that from the early and prominent part taken by that State in bringing about the Convention some initiative step might be expected from them. The Resolutions introduced by Governor Randolph were the result of a Consultation on the subject; with an understanding that they left all the Deputies entirely open to the lights of discussion, and free to concur in any alterations or modifications which their reflections and judgments might approve. The Resolutions as the Journals show became the basis on which the proceedings of the Convention commenced, and to the developments, variations and modifications of which the plan of Government proposed by the Convention may be traced.

The curiosity I had felt during my researches into the History of the most distinguished Confederacies, particularly those of antiquity, and the deficiency I found in the means of satisfying it more especially in what related to the process, the principles, the reasons, & the anticipations, which prevailed in the formation of them, determined me to preserve as far as I could an exact account of what might pass in the Convention whilst executing its trust, with the magnitude of which I was duly impressed, as I was with the gratification promised to future curiosity by an authentic exhibition of the objects, the opinions, and the reasonings from which the new System of Government was to receive its peculiar structure and organization. Nor was I unaware of the value of such a contribution to the fund of materials for the History of a Constitution on which would be Staked the happiness of a people great even in its infancy, and possibly the cause of liberty throughout the world.

In pursuance of the task I had assumed I chose a seat in front of the presiding member, with the other members on my right & left hands. In this favorable position for hearing all that passed, I noted in terms legible & in abbreviations & marks intelligible to myself what was read from the Chair or spoken by the members; and losing not a moment unnecessarily between the adjournment & reassembling of the Convention I was enabled to write out my daily notes during the session or within a few finishing days after its close, in the extent and form preserved in my own hand on my files. . . .

Of the ability and intelligence of those who composed the Convention the debates and proceedings may be a test; as the character of the work which was the offspring of their deliberations must be tested by the experience of the future, added to that of nearly half a century which has passed.

But whatever may be the judgment pronounced on the competency of the architects of the Constitution, or whatever may be the destiny of the edifice prepared by them, I feel it a duty to express my profound and solemn conviction, derived from my intimate opportunity of observing and appreciating the views of the Convention, collectively and individually, that there never was an assembly of men, charged with a great and arduous trust, who were more pure in their motives, or more exclusively or anxiously devoted to the object committed to them, than were the members of the Federal Convention of 1787, to the object of devising and proposing a constitutional system which should best supply the defects of that which it was to replace, and best secure the permanent liberty and happiness of their country.

Tuesday, July 26, 2011

Adams: Thoughts on Government

Thoughts on Government, originally written in 1776 to a gentleman in North Carolina who had made inquiries, was probably the most popular pamphlet that John Adams ever wrote. It shows how readily adaptable were the categories of English constitutionalism to the challenges of creating republican governments in each of the newly independent states. 

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MY DEAR SIR, — If I was equal to the task of forming a plan for the government of a colony, I should be flattered with your request, and very happy to comply with it; because, as the divine science of politics is the science of social happiness, and the blessings of society depend entirely on the constitutions of government, which are generally institutions that last for many generations, there can be no employment more agreeable to a benevolent mind than a research after the best.

Pope flattered tyrants too much when he said,
"For forms of government let fools contest,
That which is best administered is best."
Nothing can be more fallacious than this. But poets read history to collect flowers, not fruits; they attend to fanciful images, not the effects of social institutions. Nothing is more certain, from the history of nations and nature of man, than that some forms of government are better fitted for being well administered than others.

We ought to consider what is the end of government, before we determine which is the best form. Upon this point all speculative politicians will agree, that the happiness of society is the end of government, as all divines and moral philosophers will agree that the happiness of the individual is the end of man. From this principle it will follow, that the form of government which communicates ease, comfort, security, or, in one word, happiness, to the greatest number of persons, and in the greatest degree, is the best.

All sober inquirers after truth, ancient and modern, pagan and Christian, have declared that the happiness of man, as well as his dignity, consists in virtue. Confucius, Zo- roaster, Socrates, Mahomet, not to mention authorities really sacred, have agreed in this.

If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?

Fear is the foundation of most governments; but it is so sordid and brutal a passion, and renders men in whose breasts it predominates so stupid and miserable, that Americans will not be likely to approve of any political institution which is founded on it.

Honor is truly sacred, but holds a lower rank in the scale of moral excellence than virtue. Indeed, the former is but a part of the latter, and consequently has not equal pretensions to support a frame of government productive of human happiness.

The foundation of every government is some principle or passion in the minds of the people. The noblest principles and most generous affections in our nature, then, have the fairest chance to support the noblest and most generous models of government.

A man must be indifferent to the sneers of modern English men, to mention in their company the names of Sidney, Harrington, Locke, Milton, Nedham, Neville, Burnet, and Hoadly. No small fortitude is necessary to confess that one has read them. The wretched condition of this country, however, for ten or fifteen years past, has frequently reminded me of their principles and reasonings. They will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is "an empire of laws, and not of men." That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.

Of republics there is an inexhaustible variety, because the possible combinations of the powers of society are capable of innumerable variations.

As good government is an empire of laws, how shall your laws be made? In a large society, inhabiting an extensive country, it is impossible that the whole should assemble to make laws. The first necessary step, then, is to depute power from the many to a few of the most wise and good. But by what rules shall you choose your representatives? Agree upon the number and qualifications of persons who shall have the benefit of choosing, or annex this privilege to the inhabitants of a certain extent of ground.

The principal difficulty lies, and the greatest care should be employed, in constituting this representative assembly. It should be in miniature an exact portrait of the people at large. It should think, feel, reason, and act like them. That it may be the interest of this assembly to do strict justice at all times, it should be an equal representation, or, in other words, equal interests among the people should have equal interests in it. Great care should be taken to effect this, and to prevent unfair, partial, and corrupt elections. Such regulations, however, may be better made in times of greater tranquillity than the present; and they will spring up themselves naturally, when all the powers of government come to be in the hands of the people's friends. At present, it will be safest to proceed in all established modes, to which the people have been familiarized by habit.

A representation of the people in one assembly being obtained, a question arises, whether all the powers of government, legislative, executive, and judicial, shall be left in this body? I think a people cannot be long free, nor ever happy, whose government is in one assembly. My reasons for this opinion are as follow:--

1. A single assembly is liable to all the vices, follies, and frailties of an individual; subject to fits of humor, starts of passion, flights of enthusiasm, partialities, or prejudice, and consequently productive of hasty results and absurd judgments. And all these errors ought to be corrected and defects supplied by some controlling power.

3. A single assembly is apt to grow ambitious, and after a time will not hesitate to vote itself perpetual. This was one fault of the Long Parliament; but more remarkably of Holland, whose assembly first voted themselves from annual to septennial, then for life, and after a course of years, that all vacancies happening by death or otherwise, should be filled by themselves, without any application to constituents at all.

4. A representative assembly, although extremely well qualified, and absolutely necessary, as a branch of the legislative, is unfit to exercise the executive power, for want of two essential properties, secrecy and despatch.

5. A representative assembly is still less qualified for the judicial power, because it is too numerous, too slow, and too little skilled in the laws.

6. Because a single assembly, possessed of all the powers of government, would make arbitrary laws for their own interest, execute all laws arbitrarily for their own interest, and adjudge all controversies in their own favor.

But shall the whole power of legislation rest in one assembly? Most of the foregoing reasons apply equally to prove that the legislative power ought to be more complex; to which we may add, that if the legislative power is wholly in one assembly, and the executive in another, or in a single person, these two powers will oppose and encroach upon each other, until the contest shall end in war, and the whole power, legislative and executive, be usurped by the strongest.

The judicial power, in such case, could not mediate, or hold the balance between the two contending powers, because the legislative would undermine it. And this shows the necessity, too, of giving the executive power a negative upon the legislative, otherwise this will be continually encroaching upon that.

To avoid these dangers, let a distinct assembly be constituted, as a mediator between the two extreme branches of the legislature, that which represents the people, and that which is vested with the executive power.

Let the representative assembly then elect by ballot, from among themselves or their constituents, or both, a distinct assembly, which, for the sake of perspicuity, we will call a council. It may consist of any number you please, say twenty or thirty, and should have a free and independent exercise of its judgment, and consequently a negative voice in the legislature.

These two bodies, thus constituted, and made integral parts of the legislature, let them unite, and by joint ballot choose a governor, who, after being stripped of most of those badges of domination, called prerogatives, should have a free and independent exercise of his judgment, and be made also an integral part of the legislature. This, I know, is liable to objections; and, if you please, you may make him only president of the council, as in Connecticut. But as the governor is to be invested with the executive power, with consent of council, I think he ought to have a negative upon the legislative. If he is annually elective, as he ought to be, he will always have so much reverence and affection for the people, their representatives and counsellors, that, although you give him an independent exercise of his judgment, he will seldom use it in opposition to the two houses, except in cases the public utility of which would be conspicuous; and some such cases would happen.

In the present exigency of American affairs, when, by an act of Parliament, we are put out of the royal protection, and consequently discharged from our allegiance, and it has become necessary to assume government for our immediate security, the governor, lieutenant-governor, secretary, treasurer, commissary, attorney-general, should be chosen by joint ballot of both houses. And these and all other elections, especially of representatives and counsellors, should be annual, there not being in the whole circle of the sciences a maxim more infallible than this, "where annual elections end, there slavery begins."

These great men, in this respect, should be, once a year,
"Like bubbles on the sea of matter borne,
They rise, they break, and to that sea return."
This will teach them the great political virtues of humility, patience, and moderation, without which every man in power becomes a ravenous beast of prey.

This mode of constituting the great offices of state will answer very well for the present; but if by experiment it should be found inconvenient, the legislature may, at its leisure, devise other methods of creating them, by elections of the people at large, as in Connecticut, or it may enlarge the term for which they shall be chosen to seven years, or three years, or for life, or make any other alterations which the society shall find productive of its ease, its safety, its freedom, or, in one word, its happiness.

A rotation of all offices, as well as of representatives and counsellors, has many advocates, and is contended for with many plausible arguments. It would be attended, no doubt, with many advantages; and if the society has a sufficient number of suitable characters to supply the great number of vacancies which would be made by such a rotation, I can see no objection to it. These persons may be allowed to serve for three years, and then be excluded three years, or for any longer or shorter term.
Any seven or nine of the legislative council may be made a quorum, for doing business as a privy council, to advise the governor in the exercise of the executive branch of power, and in all acts of state.

The governor should have the command of the militia and of all your armies. The power of pardons should be with the governor and council.

Judges, justices, and all other officers, civil and military, should be nominated and appointed by the governor, with the advice and consent of council, unless you choose to have a government more popular; if you do, all officers, civil and military, may be chosen by joint ballot of both houses; or, in order to preserve the independence and importance of each house, by ballot of one house, concurred in by the other. Sheriffs should be chosen by the freeholders of counties; so should registers of deeds and clerks of counties.

All officers should have commissions, under the hand of the governor and seal of the colony.

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law. For misbehavior, the grand inquest of the colony, the house of representatives, should impeach them before the governor and council, where they should have time and opportunity to make their defence; but, if convicted, should be removed from their offices, and subjected to such other punishment as shall be thought proper.

A militia law, requiring all men, or with very few exceptions besides cases of conscience, to be provided with arms and ammunition, to be trained at certain seasons; and requiring counties, towns, or other small districts, to be provided with public stocks of ammunition and entrenching utensils, and with some settled plans for transporting provisions after the militia, when marched to defend their country against sudden invasions; and requiring certain districts to be provided with field-pieces, companies of matrosses, and perhaps some regiments of light-horse, is always a wise institution, and, in the present circumstances of our country, indispensable.

Laws for the liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that, to a humane and generous mind, no expense for this purpose would be thought extravagant.

The very mention of sumptuary laws will excite a smile. Whether our countrymen have wisdom and virtue enough to submit to them, I know not; but the happiness of the people might be greatly promoted by them, and a revenue saved sufficient to carry on this war forever. Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.

But must not all commissions run in the name of a king? No. Why may they not as well run thus, "The colony of to A. B. greeting," and be tested by the governor?

Why may not writs, instead of running in the name of the king, run thus, "The colony of to the sheriff," &c., and be tested by the chief justice?

Why may not indictments conclude, "against the peace of the colony of and the dignity of the same?"
A constitution founded on these principles introduces know ledge among the people, and inspires them with a conscious dignity becoming freemen; a general emulation takes place, which causes good humor, sociability, good manners, and good morals to be general. That elevation of sentiment inspired by such a government, makes the common people brave and enterprising. That ambition which is inspired by it makes them sober, industrious, and frugal. You will find among them some elegance, perhaps, but more solidity; a little pleasure, but a great deal of business; some politeness, but more civility. If you compare such a country with the regions of domination, whether monarchical or aristocratical, you will fancy yourself in Arcadia or Elysium.

If the colonies should assume governments separately, they should be left entirely to their own choice of the forms; and if a continental constitution should be formed, it should be a congress, containing a fair and adequate representation of the colonies, and its authority should sacredly be confined to these cases, namely, war, trade, disputes between colony and colony, the post office, and the unappropriated lands of the crown, as they used to be called.

These colonies, under such forms of government, and in such a union, would be unconquerable by all the monarchies of Europe.

You and I, my dear friend, have been sent into life at a time when the greatest lawgivers of antiquity would have wished to live. How few of the human race have ever enjoyed an opportunity of making an election of government, more than of air, soil, or climate, for themselves or their children! When, before the present epocha, had three millions of people full power and a fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive? I hope you will avail yourself and your country of that extensive learning and indefatigable industry which you possess, to assist her in the formation of the happiest governments and the best character of a great people. For myself, I must beg you to keep my name out of sight; for this feeble attempt, if it should be known to be mine, would oblige me to apply to myself those lines of the immortal John Milton, in one of his sonnets:--
"I did but prompt the age to quit their clogs
By the known rules of ancient liberty,
When straight a barbarous noise environs me
Of owls and cuckoos, asses, apes, and dogs."

Source: Papers of John Adams, IV, 86-92, at