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Public Papers
by Thomas Jefferson
_Resolutions of Congress on Lord North's Conciliatory Proposal_
IN CONGRESS
THE SEVERAL Assemblies of NEW JERSEY, PENNSYLVANIA and
VIRGINIA, having referred to the Congress a resolution of the House
of Commons of GREAT BRITAIN, which resolution is in these words, viz.
_Lunae, 20 degrees die Feb. 1775.
_The House in a Committee on the American papers. Motion made,
and question proposed._
THAT _it is the opinion of this Committee, that when the
General Council and Assembly, or General Court of any of his
Majesty's provinces, or colonies in America, shall propose to make
provision, according to the condition, circumstance, or situation of
such province or colony, for contributing their proportion to the
common defence (such proportion to be raised under the authority of
the General Court, or General Assembly of such province or colony,
and disposable by Parliament) and shall engage to make provision
also, for the support of the civil government, and the Administration
of justice in such province or colony, it will be proper if such
proposal shall be approved by his Majesty and the two Houses of
Parliament; and for so long as such provision shall be made
accordingly, to forbear in respect of such province or colony, to lay
any duty, tax, or assessment, or to impose any further duty, tax or
assessment, except only such duties as it may be expedient to
continue to levy or impose, for the regulation of commerce, the net
produce of the duties last mentioned, to be carried to the account of
such province or colony respectively._
The Congress took the said resolution into consideration, and
are thereupon of opinion:
That the colonies of America are entitled to the sole and
exclusive privilege of giving and granting their own money; that this
involves a right of deliberating whether they will make any gift, for
what purposes it shall be made, and what shall be it's amount; and
that it is a high breach of this privilege for any body of men,
extraneous to their constitutions, to prescribe the purposes for
which money shall be levied on them, to take to themselves the
authority of judging of their conditions, circumstances and
situations; and of determining the amount of the contribution to be
levied.
That as the colonies possess a right of appropriating their
gifts, so are they entitled at all times to enquire into their
application, to see that they be not wasted among the venal and
corrupt for the purpose of undermining the civil rights of the
givers, nor yet be diverted to the support of standing armies,
inconsistent with their freedom and subversive of their quiet. To
propose therefore, as this resolution does, that the monies given by
the colonies shall be subject to the disposal of parliament alone, is
to propose that they shall relinquish this right of enquiry, and put
it in the power of others to render their gifts, ruinous, in
proportion as they are liberal.
That this privilege of giving or of withholding our monies is
an important barrier against the undue exertion of prerogative, which
if left altogether without controul may be exercised to our great
oppression; and all history shews how efficacious is its intercession
for redress of grievances and re-establishment of rights, and how
improvident it would be to part with so powerful a mediator.
We are of opinion that the proposition contained in this
resolution is unreasonable and insidious: unreasonable, because, if
we declare we accede to it, we declare without reservation, we will
purchase the favour of Parliament, not knowing at the same time at
what price they will please to estimate their favor: It is insidious,
because, individual colonies, having bid and bidden again, till they
find the avidity of the seller too great for all their powers to
satisfy; are then to return into opposition, divided from their
sister colonies whom the minister will have previously detached by a
grant of easier terms, or by an artful procrastination of a
definitive answer.
That the suspension of the exercise of their pretended power of
taxation being expressly made commensurate with the continuance of
our gifts, these must be perpetual to make that so. Whereas no
experience has shewn that a gift of perpetual revenue secures a
perpetual return of duty or of kind disposition. On the contrary,
the Parliament itself, wisely attentive to this observation, are in
the established practice of granting their supplies from year to year
only.
Desirous and determined as we are to consider in the most
dispassionate view every seeming advance towards a reconciliation
made by the British Parliament, let our brethren of Britain reflect
what would have been the sacrifice to men of free spirits had even
fair terms been proffered, as these insidious proposals were with
circumstances of insult and defiance. A proposition to give our
money, accompanied with large fleets and armies, seems addressed to
our fears rather than to our freedom. With what patience would
Britons have received articles of treaty from any power on earth when
borne on the point of a bayonet by military plenipotentiaries?
We think the attempt unnecessary to raise upon us by force or
by threats our proportional contributions to the common defence, when
all know, and themselves acknowledge we have fully contributed,
whenever called upon to do so in the character of freemen.
We are of opinion it is not just that the colonies should be
required to oblige themselves to other contributions, while Great
Britain possesses a monopoly of their trade. This of itself lays
them under heavy contribution. To demand therefore, additional aids
in the form of a tax, is to demand the double of their equal
proportion, if we are to contribute equally with the other parts of
the empire, let us equally with them enjoy free commerce with the
whole world. But while the restrictions on our trade shut to us the
resources of wealth, is it just we should bear all other burthens
equally with those to whom every resource is open.
We conceive that the British Parliament has no right to
intermeddle with our provisions for the support of civil government,
or administration of justice. The provisions we have made are such
as please ourselves, and are agreeable to our own circumstances; they
answer the substantial purposes of government and of justice, and
other purposes than these should not be answered. We do not mean
that our people shall be burthened with oppressive taxes to provide
sinecures for the idle or the wicked, under colour of providing for a
civil list. While Parliament pursue their plan of civil government
within their own jurisdiction, we also hope to pursue ours without
molestation.
We are of opinion the proposition is altogether unsatisfactory
because it imports only a suspension of the mode, not a renunciation
of the pretended right to tax us: Because too it does not propose to
repeal the several Acts of Parliament passed for the purposes of
restraining the trade and altering the form of government of one of
our Colonies; extending the boundaries and changing the government of
Quebec; enlarging the jurisdiction of the Courts of Admiralty and
Vice Admiralty; taking from us the rights of trial by a Jury of the
vicinage in cases affecting both life and property; transporting us
into other countries to be tried for criminal offences; exempting by
mock-trial the murderers of Colonists from punishment; and quartering
soldiers on us in times of profound peace. Nor do they renounce the
power of suspending our own Legislatures, and of legislating for us
themselves in all cases whatsoever. On the contrary, to shew they
mean no discontinuance of injury, they pass acts, at the very time of
holding out this proposition, for restraining the commerce and
fisheries of the Provinces of New-England, and for interdicting the
trade of other Colonies with all foreign nations and with each other.
This proves unequivocally they mean not to relinquish the exercise of
indiscriminate legislation over us.
Upon the whole, this proposition seems to have been held up to
the world, to deceive it into a belief that there was nothing in
dispute between us but the _mode_ of levying taxes; and that the
Parliament having now been so good as to give up this, the Colonies
are unreasonable if not perfectly satisfied: Whereas in truth, our
adversaries still claim a right of demanding _ad libitum_, and of
taxing us themselves to the full amount of their demand, if we do not
comply with it. This leaves us without any thing we can call
property. But, what is of more importance, and what in this proposal
they keep out of sight, as if no such point was now in contest
between us, they claim a right to alter our Charters and established
laws, and leave us without any security for our Lives or Liberties.
The proposition seems also to have been calculated more particularly
to lull into fatal security our well-affected fellow subjects on the
other side the water, till time should be given for the operation of
those arms, which a British Minister pronounced would instantaneously
reduce the "cowardly" sons of America to unreserved submission. But
when the world reflects, how inadequate to justice are these vaunted
terms; when it attends to the rapid and bold succession of injuries,
which, during a course of eleven years, have been aimed at these
Colonies; when it reviews the pacific and respectful expostulations,
which, during that whole time, were the sole arms we opposed to them;
when it observes that our complaints were either not heard at all, or
were answered with new and accumulated injury; when it recollects
that the Minister himself on an early occasion declared, "that he
would never treat with America, till he had brought her to his feet,"
and that an avowed partisan of Ministry has morelately denounced
against us the dreadful sentence _"delenda est Carthago,"_ that this
was done in presence of a British Senate, and being unreproved by
them, must be taken to be theirown sentiment, (especially as the
purpose has already in part been carried into execution by their
treatment of Boston, and burning of Charlestown) when it considers
the great armaments with which they have invaded us, and the
circumstances of cruelty with which these have commenced and
prosecuted hostilities; when these things, we say, are laid together,
and attentively considered, can the world be deceived into an opinion
that we are unreasonable, or can it hesitate to believe with us, that
nothing but our own exertions may defeat the ministerial sentence of
death or abject submission.
_By Order of the Congress,_
JOHN HANCOCK, _President._
_Philadelphia, July 31, 1775_.
_Draft Constitution for Virginia_
[_June, 1776._]
FAIR COPY
[_A Bil_]l for new-modelling the form of Government and for
establishing the Fundamental principles thereof in future.
Whereas George
Guelf king of Great Britain and Ireland and Elector of Hanover,
heretofore entrusted with the exercise of the kingly office in this
government hath endeavored to pervert the same into a detestable and
insupportable tyranny;
by putting his negative on laws the most wholesome & necessary
for ye public good;
by denying to his governors permission to pass laws of
immediate and pressing importance, unless suspended in their
operations for his assent, and, when so suspended, neglecting to
attend to them for many years;
by refusing to pass certain other laws, unless the person to be
benefited by them would relinquish the inestimable right of
representation in the legislature
by dissolving legislative assemblies repeatedly and continually
for opposing with manly firmness his invasions on the rights of the
people;
when dissolved, by refusing to call others for a long space of
time, thereby leaving the political system without any legislative
head;
by endeavoring to prevent the population of our country, & for
that purpose obstructing the laws for the naturalization of
foreigners & raising the condition [_lacking appro_]priations of
lands;
[_by keeping among u_]s, in times of peace, standing armies and
ships of war;
[_lacking_]ing to render the military independent of & superior
to the civil power;
by combining with others to subject us to a foreign
jurisdiction, giving his assent to their pretended acts of
legislation.
for quartering large bodies of troops among us;
for cutting off our trade with all parts of the world;
for imposing taxes on us without our consent;
for depriving us of the benefits of trial by jury;
for transporting us beyond seas to be tried for pretended
offences; and
for suspending our own legislatures & declaring themselves
invested with power to legislate for us in all cases whatsoever;
by plundering our seas, ravaging our coasts, burning our towns
and destroying the lives of our people;
by inciting insurrections of our fellow subjects with the
allurements of forfeiture & confiscation;
by prompting our negroes to rise in arms among us; those very
negroes whom *he hath from time to time* by an inhuman use of his
negative he hath refused permission to exclude by law;
by endeavoring to bring on the inhabitants of our frontiers the
merciless Indian savages, whose known rule of warfare is an
undistinguished destruction of all ages, sexes, & conditions of
existence;
by transporting at this time a large army of foreign
mercenaries [_to complete_] the works of death, desolation & tyranny
already begun with circum[_stances_] of cruelty & perfidy so unworthy
the head of a civilized nation;
by answering our repeated petitions for redress with a
repetition of injuries;
and finally by abandoning the helm of government and declaring
us out of his allegiance & protection;
by which several acts of misrule the said George
Guelf has forfeited the kingly office and has rendered it
necessary for the preservation of the people that he should be
immediately deposed from the same, and divested of all its
privileges, powers, & prerogatives:
And forasmuch as the public liberty may be more certainly
secured by abolishing an office which all experience hath shewn to be
inveterately inimical thereto *or which* and it will thereupon become
further necessary to re-establish such ancient principles as are
friendly to the rights of the people and to declare certain others
which may co-operate with and fortify the same in future.
Be it therefore enacted by the authority of the people that the
said, George Guelf be, and he hereby is deposed from the kingly
office within this government and absolutely divested of all it's
rights, powers, and prerogatives: and that he and his descendants and
all persons acting by or through him, and all other persons
whatsoever shall be and forever remain incapable of the same: and
that the said office shall henceforth cease and never more either in
name or substance be re-established within this colony.
And be it further enacted by the authority aforesaid that the
following fundamental laws and principles of government shall
henceforth be established.
The Legislative, Executive and Judiciary offices shall be kept
forever separate; no person exercising the one shall be capable of
appointment to the others, or to either of them.
I. LEGISLATIVE.
Legislation shall be exercised by two separate houses, to wit a
house of Representatives, and a house of Senators, which shall be
called the General Assembly of Virginia.
Ho. of Representatives
The sd house of Representatives shall be composed of persons
chosen by the people annually on the [1st day of October] and shall
meet in General assembly on the [1st day of November] following and
so from time to time on their own adjournments, or at any time when
summoned by the Administrator and shall continue sitting so long as
they shall think the publick service requires.
Vacancies in the said house by death or disqualification shall
be filled by the electors under a warrant from the Speaker of the
said house.
Electors
All male persons of full age and sane mind having a freehold
estate in [one fourth of an acre] of land in any town, or in [25]
acres of land in the country, and all
Elected
persons resident in the colony who shall have paid scot and lot
to government the last [two years] shall have right to give their
vote in the election of their respective representatives. And every
person so qualified to elect shall be capable of being elected,
provided he shall have given no bribe either directly or indirectly
to any elector, and shall take an oath of fidelity to the state and
of duty in his office, before he enters on the exercise thereof.
During his continuance in the said office he shall hold no public
pension nor post of profit, either himself, or by another for his
use.
The number of Representatives for each county or borough shall
be so proportioned to the numbers of it's qualified electors that the
whole number of representatives shall not exceed [300] nor be less
than [125.] for the present there shall be one representative for
every [ ] qualified electors in each county or borough: but whenever
this or any future proportion shall be likely to exceed or fall short
of the limits beforementioned, it shall be again adjusted by the
house of representatives.
The house of Representatives when met shall be free to act
according to their own judgment and conscience.
Senate
The Senate shall consist of not less than [15] nor more than
[50] members who shall be appointed by the house of Representatives.
One third of them shall be removed out of office by lot at the end of
the first [three] years and their places be supplied by a new
appointment; one other third shall be removed by lot in like manner
at the end of the second [three] years and their places be supplied
by a new appointment; after which one third shall be removed annually
at the end of every [three] years according to seniority. When once
removed, they shall be forever incapable of being re-appointed to
that house. Their qualifications shall be an oath of fidelity to the
state, and of duty in their office, the being [31] years of age at
the least, and the having given no bribe directly or indirectly to
obtain their appointment. While in the senatorial office they shall
be incapable of holding any public pension or post of profit either
themselves, or by others for their use.
The judges of the General court and of the High court of
Chancery shall have session and deliberative voice, but not suffrage
in the house of Senators.
The Senate and the house of representatives shall each of them
have power to originate and amend bills; save only that bills for
levying money *bills* shall be originated and amended by the
representatives only: the assent of both houses shall be requisite to
pass a law.
The General assembly shall have no power to pass any law
inflicting death for any crime, excepting murder, & *such* those
offences in the military service for which they shall think
punishment by death absolutely necessary: and all capital punishments
in other cases are hereby abolished. Nor shall they have power to
prescribe torture in any case whatever: nor shall there be power
anywhere to pardon crimes or to remit fines or punishments: nor shall
any law for levying money be in force longer than [ten years] from
the time of its commencement.
[Two thirds] of the members of either house shall be a Quorum
to proceed to business.
II. EXECUTIVE.
The executive powers shall be exercised in manner following.
Administrator
One person to be called the [Administrator] shall be annually
appointed by the house of Representatives on the second day of their
first session, who after having acted [one] year shall be incapable
of being again appointed to that office until he shall have been out
of the same [three] years.
Deputy Admr.
Under him shall be appointed by the same house and at the same
time, a Deputy-Administrator to assist his principal in the discharge
of his office, and to succeed, in case of his death before the year
shall have expired, to the whole powers thereof during the residue of
the year.
The administrator shall possess the power formerly held by the
king: save only that, he shall be bound by acts of legislature tho'
not expressly named;
he shall have no negative on the bills of the Legislature;
he shall be liable to action, tho' not to personal restraint
for private duties or wrongs;
he shall not possess the prerogatives;
of dissolving, proroguing or adjourning either house of
Assembly;
of declaring war or concluding peace;
of issuing letters of marque or reprisal;
of raising or introducing armed forces, building armed vessels,
forts or strongholds;
of coining monies or regulating their values;
of regulating weights and measures;
of erecting courts, offices, boroughs, corporations, fairs,
markets, ports, beacons, lighthouses, seamarks.
of laying embargoes, or prohibiting the exportation of any
commodity for a longer space than [40] days.
of retaining or recalling a member of the state but by legal
process pro delicto vel contractu.
of making denizens.
*of pardoning crimes, or remitting fines or punishments.*
of creating dignities or granting rights of precedence.
but these powers shall be exercised by the legislature alone,
and excepting also those powers which by these fundamentals are given
to others, or abolished.
Privy Council
A Privy council shall be annually appointed by the house of
representatives whose duties it shall be to give advice to the
Administrator when called on by him. With them the Deputy
Administrator shall have session and suffrage.
Delegates
Delegates to represent this colony in the American Congress
shall be appointed when necessary by the house of Representatives.
After serving [one] year in that office they shall not be capable of
being re-appointed to the same during an interval of [one] year.
Treasurer
A Treasurer shall be appointed by the house of Representatives
who shall issue no money but by authority of both houses.
Attorney Genrl.
An Attorney general shall be appointed by the house of
Representatives
High Sheriffs, &c.
High Sheriffs and Coroners of counties shall be annually
elected by those qualified to vote for representatives: and no person
who shall have served as high sheriff [one] year shall be capable of
being re-elected to the said office in the same county till he shall
have been out of office [five] years.
Other Officers
All other Officers civil and military shall be appointed by the
Administrator; but such appointment shall be subject to the negative
of the Privy council, saving however to the Legislature a power of
transferring to any other persons the appointment of such officers or
any of them.
III. JUDICIARY.
The Judiciary powers shall be exercised
First, by County courts and other inferior jurisdictions:
Secondly, by a General court & a High court of Chancery:
Thirdly, by a Court of Appeals.
County Courts, &c.
The judges of the county courts and other inferior
jurisdictions shall be appointed by the Administrator, subject to the
negative of the privy council. They shall not be fewer than [five]
in number. Their jurisdictions shall be defined from time to time by
the legislature: and they shall be removable for misbehavior by the
court of Appeals.
Genl. Court and High Ct. of Chancery
The Judges of the General court and of the High court of
Chancery shall be appointed by the Administrator and Privy council.
If kept united they shall be [5] in number, if separate, there shall
be [5] for the General court & [3] for the High court of Chancery.
The appointment shall be made from the faculty of the law, and of
such persons of that faculty as shall have actually exercised the
same at the bar of some court or courts of record within this colony
for [seven] years. They shall hold their commissions during good
behavior, for breach of which they shall be removable by the court of
Appeals. Their jurisdiction shall be defined from time to time by
the Legislature.
Court of Appeals
The Court of Appeals shall consist of not less than [7] nor
more than [11] members, to be appointed by the house of
Representatives: they shall hold their offices during good behavior,
for breach of which they shall be removable by an act of the
legislature only. Their jurisdiction shall be to determine finally
all causes removed before them from the General Court or High Court
of Chancery, or of the county courts or other inferior jurisdictions
for misbehavior: [to try impeachments against high offenders lodged
before them by the house of representatives for such crimes as shall
hereafter be precisely defined by the Legislature, and for the
punishment of which, the said legislature shall have previously
prescribed certain and determinate pains.] In this court the judges
of the General court and High court of Chancery shall have session
and deliberative voice, but no suffrage.
Juries
All facts in causes whether of Chancery, Common,
Ecclesiastical, or Marine law, shall be tried by a jury upon evidence
given viva voce, in open court: but where witnesses are out of the
colony or unable to attend through sickness or other invincible
necessity, their deposition may be submitted to the credit of the
jury.
Fines, &c.
All Fines or Amercements shall be assessed, & Terms of
imprisonment for Contempts & Misdemeanors shall be fixed by the
verdict of a Jury.
Process
All Process Original & Judicial shall run in the name of the
court from which it issues.
Quorum
Two thirds of the members of the General court, High court of
Chancery, or Court of Appeals shall be a Quorum to proceed to
business.
IV. RIGHTS, PRIVATE AND PUBLIC.
Lands
Unappropriated or Forfeited lands shall be appropriated by the
Administrator with the consent of the Privy council.
Every person of full age neither owning nor having owned [50]
acres of land, shall be entitled to an appropriation of [50] acres or
to so much as shall make up what he owns or has owned [50] acres in
full and absolute dominion. And no other person shall be capable of
taking an appropriation.
Lands heretofore holden of the crown in fee simple, and those
hereafter to be appropriated shall be holden in full and absolute
dominion, of no superior whatever.
No lands shall be appropriated until purchased of the Indian
native proprietors; nor shall any purchases be made of them but on
behalf of the public, by authority of acts of the General assembly to
be passed for every purchase specially.
The territories contained within the charters erecting the
colonies of Maryland, Pennsylvania, North and South Carolina, are
hereby ceeded, released, & forever confirmed to the people of those
colonies respectively, with all the rights of property, jurisdiction
and government and all other rights whatsoever which might at any
time heretofore have been claimed by this colony. The Western and
Northern extent of this country shall in all other respects stand as
fixed by the charter of
until by act of the Legislature one or more territories shall
be laid off Westward of the Alleghaney mountains for new colonies,
which colonies shall be established on the same fundamental laws
contained in this instrument, and shall be free and independent of
this colony and of all the world.
Descents shall go according to the laws Gavelkind, save only
that females shall have equal rights with males.
Slaves
No person hereafter coming into this county shall be held
within the same in slavery under any pretext whatever.
Naturalization
All persons who by their own oath or affirmation, or by other
testimony shall give satisfactory proof to any court of record in
this colony that they propose to reside in the same [7] years at the
least and who shall subscribe the fundamental laws, shall be
considered as residents and entitled to all the rights of persons
natural born.
Religion
All persons shall have full and free liberty of religious
opinion; nor shall any be compelled to frequent or maintain any
religious institution.
Arms
No freeman shall be debarred the use of arms [within his own
lands].
Standing Armies
There shall be no standing army but in time of actual war.
Free Press
Printing presses shall be free, except so far as by commission
of private injury cause may be given of private action.
Forfeitures
All Forfeitures heretofore going to the king, shall go the
state; save only such as the legislature may hereafter abolish.
Wrecks
The royal claim to Wrecks, waifs, strays, treasure-trove, royal
mines, royal fish, royal birds, are declared to have been usurpations
on common right.
Salaries
No Salaries or Perquisites shall be given to any officer but by
some future act of the legislature. No salaries shall be given to
the Administrator, members of the legislative houses, judges of the
court of Appeals, judges of the County courts, or other inferior
jurisdictions, Privy counsellors, or Delegates to the American
Congress: but the reasonable expences of the Administrator, members
of the house of representatives, judges of the court of Appeals,
Privy counsellors, & Delegates for subsistence while acting in the
duties of their office, may be borne by the public, if the
legislature shall so direct.
Qualifications
No person shall be capable of acting in any office Civil,
Military [or Ecclesiastical] *The Qualifications of all not otherwise
directed, shall be an oath of fidelity to state and the having given
no bribe to obtain their office* who shall have given any bribe to
obtain such office, or who shall not previously take an oath of
fidelity to the state.
None of these fundamental laws and principles of government
shall be repealed or altered, but by the personal consent of the
people on summons to meet in their respective counties on one and the
same day by an act of Legislature to be passed for every special
occasion: and if in such county meetings the people of two thirds of
the counties shall give their suffrage for any particular alteration
or repeal referred to them by the said act, the same shall be
accordingly repealed or altered, and such repeal or alteration shall
take it's place among these fundamentals and stand on the same
footing with them, in lieu of the article repealed or altered.
The laws heretofore in force in this colony shall remain in
force, except so far as they are altered by the foregoing fundamental
laws, or so far as they may be hereafter altered by acts of the
Legislature.
REVISAL OF THE LAWS: DRAFTS OF LEGISLATION
_A Bill for Establishing Religious Freedom_
SECTION I. Well aware that the opinions and belief of men
depend not on their own will, but follow involuntarily the evidence
proposed to their minds; that Almighty God hath created the mind
free, and manifested his supreme will that free it shall remain by
making it altogether insusceptible of restraint; that all attempts to
influence it by temporal punishments, or burthens, or by civil
incapacitations, tend only to beget habits of hypocrisy and meanness,
and are a departure from the plan of the holy author of our religion,
who being lord both of body and mind, yet chose not to propagate it
by coercions on either, as was in his Almighty power to do, but to
extend it by its influence on reason alone; that the impious
presumption of legislators and rulers, civil as well as
ecclesiastical, who, being themselves but fallible and uninspired
men, have assumed dominion over the faith of others, setting up their
own opinions and modes of thinking as the only true and infallible,
and as such endeavoring to impose them on others, hath established
and maintained false religions over the greatest part of the world
and through all time: That to compel a man to furnish contributions
of money for the propagation of opinions which he disbelieves and
abhors, is sinful and tyrannical; that even the forcing him to
support this or that teacher of his own religious persuasion, is
depriving him of the comfortable liberty of giving his contributions
to the particular pastor whose morals he would make his pattern, and
whose powers he feels most persuasive to righteousness; and is
withdrawing from the ministry those temporary rewards, which
proceeding from an approbation of their personal conduct, are an
additional incitement to earnest and unremitting labours for the
instruction of mankind; that our civil rights have no dependance on
our religious opinions, any more than our opinions in physics or
geometry; that therefore the proscribing any citizen as unworthy the
public confidence by laying upon him an incapacity of being called to
offices of trust and emolument, unless he profess or renounce this or
that religious opinion, is depriving him injuriously of those
privileges and advantages to which, in common with his fellow
citizens, he has a natural right; that it tends also to corrupt the
principles of that very religion it is meant to encourage, by
bribing, with a monopoly of worldly honours and emoluments, those who
will externally profess and conform to it; that though indeed these
are criminal who do not withstand such temptation, yet neither are
those innocent who lay the bait in their way; that the opinions of
men are not the object of civil government, nor under its
jurisdiction; that to suffer the civil magistrate to intrude his
powers into the field of opinion and to restrain the profession or
propagation of principles on supposition of their ill tendency is a
dangerous falacy, which at once destroys all religious liberty,
because he being of course judge of that tendency will make his
opinions the rule of judgment, and approve or condemn the sentiments
of others only as they shall square with or differ from his own; that
it is time enough for the rightful purposes of civil government for
its officers to interfere when principles break out into overt acts
against peace and good order; and finally, that truth is great and
will prevail if left to herself; that she is the proper and
sufficient antagonist to error, and has nothing to fear from the
conflict unless by human interposition disarmed of her natural
weapons, free argument and debate; errors ceasing to be dangerous
when it is permitted freely to contradict them.
SECT. II. WE the General Assembly of Virginia do enact that no
man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained,
molested, or burthened in his body or goods, nor shall otherwise
suffer, on account of his religious opinions or belief; but that all
men shall be free to profess, and by argument to maintain, their
opinions in matters of religion, and that the same shall in no wise
diminish, enlarge, or affect their civil capacities.
SECT. III. AND though we well know that this Assembly, elected
by the people for the ordinary purposes of legislation only, have no
power to restrain the acts of succeeding Assemblies, constituted with
powers equal to our own, and that therefore to declare this act
irrevocable would be of no effect in law; yet we are free to declare,
and do declare, that the rights hereby asserted are of the natural
rights of mankind, and that if any act shall be hereafter passed to
repeal the present or to narrow its operation, such act will be an
infringement of natural right.
_A Bill for Proportioning Crimes and Punishments_
SECTION I. Whereas it frequently happens that wicked and
dissolute men, resigning themselves to the dominion of inordinate
passions, commit violations on the lives, liberties, and property of
others, and the secure enjoyment of these having principally induced
men to enter into society, government would be defective in its
principal purpose, were it not to restrain such criminal acts by
inflicting due punishments on those who perpetrate them; but it
appears at the same time equally deducible from the purposes of
society, that a member thereof, committing an inferior injury, does
not wholly forfeit the protection of his fellow citizens, but after
suffering a punishment in proportion to his offence, is entitled to
their protection from all greater pain, so that it becomes a duty in
the Legislature to arrange in a proper scale the crimes which it may
be necessary for them to repress, and to adjust thereto a
corresponding gradation of punishments. And whereas the reformation
of offenders, though an object worthy the attention of the laws, is
not effected at all by capital punishments which exterminate instead
of reforming, and should be the last melancholy resource against
those whose existence is become inconsistent with the safety of their
fellow citizens; which also weaken the State by cutting off so many,
who, if reformed, might be restored sound members to society, who,
even under a course of correction, might be rendered useful in
various labours for the public, and would be, living, and
long-continued spectacles to deter others from committing the like
offences. And forasmuch as the experience of all ages and countries
hath shewn, that cruel and sanguinary laws defeat their own purpose,
by engaging the benevolence of mankind to withhold prosecutions, to
smother testimony, or to listen to it with bias; and by producing in
many instances a total dispensation and impunity under the names of
pardon and privilege of clergy; when, if the punishment were only
proportioned to the injury, men would feel it their inclination, as
well as their duty, to see the laws observed; and the power of
dispensation, so dangerous and mischievous, which produces crimes by
holding up a hope of impunity, might totally be abolished, so that
men while contemplating to perpetrate a crime would see their
punishment ensuing as necessarily as effects follow their causes; for
rendering crimes and punishments, therefore, more proportionate to
each other,
SECT. II. Be it enacted by the General Assembly, that no crime
shall be henceforth punished by the deprivation of life or limb, (*
1) except those herein after ordained to be so punished.
SECT. III. (* 2) If a man do levy war (* 3) against the
Commonwealth _in the same_, or be adherent to the enemies of the
Commonwealth _within the same_, (* 4) giving to them aid or comfort
in the Commonwealth, or elsewhere, and thereof be convicted, of open
deed, by the evidence of two sufficient and lawful witnesses, or his
own voluntary confession, the said cases, and no (* 5) others, shall
be adjudged treasons which extend to the commonwealth, and the person
so convicted shall suffer death, by hanging, (* 6) and shall forfeit
his lands and goods to the commonwealth.
SECT. IV. If any person commit petty treason, or a husband
murder his wife, a parent (* 7) his child, or a child his parent, he
shall suffer death, by hanging, and his body be delivered to
Anatomists to be dissected.
SECT. V. Whosoever committeth murder by poisoning, shall suffer
death by poison.
SECT. VI. Whosoever committeth murder by way of duel, shall
suffer death by hanging; and if he were the challenger, his body,
after death, shall be gibbetted (* 8). He who removeth it from the
gibbet shall be guilty of a misdemeanor, and the officer shall see
that it be replaced.
SECT. VII. Whosoever shall commit murder in any other way shall
suffer death by hanging.
SECT. VIII. And in all cases of Petty treason and murder, one
half of the lands and goods of the offender shall be forfeited to the
next of kin to the person killed, and the other half descend and go
to his own representatives. Save only, where one shall slay the
challenger in a duel, (* 9) in which case, no part of his lands or
goods shall be forfeited to the kindred of the party slain, but
instead thereof, a moiety shall go to the commonwealth.
SECT. IX. The same evidence (* 10) shall suffice, and order and
course (* 11) of trial be observed in cases of Petty treason as in
those of other (* 12) murders.
SECT. X. Whosoever shall be guilty of manslaughter, (* 13)
shall, for the first offence, be condemned to hard (* 14) labour for
seven years in the public works; shall forfeit one half of his lands
and goods to the next of kin to the person slain; the other half to
be sequestered during such term, in the hands, and to the use, of the
commonwealth, allowing a reasonable part of the profits for the
support of his family. The second offence shall be deemed murder.
SECT. XI. And where persons meaning to commit a trespass (* 15)
only, or larceny, or other unlawful deed, and doing an act from which
involuntary homicide hath ensued, have heretofore been adjudged
guilty of manslaughter or of murder, by transferring such their
unlawful intention to an act, much more penal than they could have in
probable contemplation; no such case shall hereafter be deemed
manslaughter unless manslaughter was intended, nor murder, unless
murder was intended.
SECT. XII. In other cases of homicide the law will not add to
the miseries of the party, by punishments or forfeitures (* 16).
SECT. XIII. Whenever sentence of death shall have been
pronounced against any person for treason or murder, execution
thereof shall be done on the next day but one, after such sentence,
unless it be Sunday, and then on the Monday following (* 17)
SECT. XIV. Whosoever shall be guilty of rape, (* 18)
_polygamy_, (* 19) or sodomy (* 20) with man or woman, shall be
punished; if a man, by castration, (* 21) a woman, by boring through
the cartilage of her nose a hole of one half inch in diameter at the
least.
SECT. XV. Whosoever on purpose, (* 22) shall disfigure another,
by cutting out or disabling the tongue, slitting or cutting off a
nose, lip, or ear, branding, or otherwise, shall be maimed, or
disfigured in like (* 23) sort; or if that cannot be, for want of the
same part, then as nearly as may be, in some other part of at least
equal value and estimation, in the opinion of a jury, and moreover,
shall forfeit one half of his lands and goods to the sufferer.
SECT. XVI. Whosoever shall counterfeit (* 24) any coin current
by law within this commonwealth, or any paper bills issued in the
nature of money, or of certificates of loan, on the credit of this
commonwealth, or of all or any of the United States of America, or
any Inspectors' notes for tobacco, or shall pass any such
counterfeited coin, paper bills, or notes, knowing them to be
counterfeit; or, for the sake of lucre, shall diminish (* 25) each,
or any such coin, shall be condemned to hard labour six years in the
public works, and shall forfeit all his lands and goods to the
commonwealth.
SECT. XVII. The making false any such paper bill, or note,
shall be deemed counterfeiting.
SECT. XVIII. (* 26) Whosoever committeth arson, shall be
condemned to hard labour five years in the public works, and shall
make good the loss of the sufferers threefold (* 27).
SECT. XIX. If any person shall, within this Commonwealth, or,
being a citizen thereof, shall without the same, wilfully destroy (*
28) or run (* 29) away with any sea-vessel, or goods laden on board
thereof, or plunder or pilfer any wreck, he shall be condemned to
hard labour five years in the public works, and shall make good the
loss of the sufferers threefold.
SECT. XX. Whosoever committeth a robbery, (* 30) shall be
condemned to hard labour four years in the public works, and shall
make double reparation to the persons injured.
SECT. XXI. Whatsoever act, if committed on any mansionhouse,
would be deemed a burglary, (* 31) shall be burglary, if committed on
any other house; and he who is guilty of burglary, shall be condemned
to hard labour four years in the public works, and shall make double
reparation to the persons injured.
SECT. XXII. Whatsoever act, if committed in the night time,
shall constitute the crime of burglary, shall, if committed in the
day, be deemed house-breaking (* 32); and whoever is guilty thereof,
shall be condemned to hard labour three years in the public works,
and shall make reparation to the persons injured.
SECT. XXIII. Whosoever shall be guilty of horse-stealing, (*
33) shall be condemned to hard labour three years in the public
works, and shall make reparation to the person injured.
SECT. XXIV. Grand larceny (* 34) shall be where the goods
stolen are of the value of five dollars; and whosoever shall be
guilty thereof, shall be forthwith put in the pillory for one half
hour, shall be condemned to hard labour (* 35) two years in the
public works, and shall make reparation to the person injured.
SECT. XXV. Petty larceny shall be, where the goods stolen are
of less value than five dollars; whosoever shall be guilty thereof,
shall be forthwith put in the pillory for a quarter of an hour, shall
be condemned to hard labour for one year in the public works, and
shall make reparation to the persons injured.
SECT. XXVI. Robbery (* 36) or larceny of bonds, bills
obligatory, bills of exchange, or promissory notes, for the payment
of money or tobacco, lottery tickets, paper bills issued in the
nature of money, or certificates of loan on the credit of this
commonwealth, or of all or any of the United States of America, or
inspectors notes for tobacco, shall be punished in the same manner as
robbery or larceny of the money or tobacco due on, or represented by
such papers.
SECT. XXVII. Buyers (* 37) and receivers of goods taken by way
of robbery or larceny, knowing them to have been so taken, shall be
deemed accessaries to such robbery or larceny after the fact.
SECT. XXVIII. Prison-breakers, (* 38) also, shall be deemed
accessaries after the fact, to traitors or felons whom they enlarge
from prison (* 39).
SECT. XXIX. All attempts to delude the people, or to abuse
their understanding by exercise of the pretended arts of witchcraft,
conjuration, enchantment, or sorcery, or by pretended prophecies,
shall be punished by ducking and whipping, at the discretion of a
jury, not exceeding fifteen stripes (* 40).
SECT. XXX. If the principal offenders be fled, (* 41) or
secreted from justice, in any case not touching life or member, the
accessaries may, notwithstanding, be prosecuted as if their principal
were convicted (* 42).
SECT. XXXI. If any offender stand mute of obstinacy, (* 43) or
challenge peremptorily more of the jurors than by law he may, being
first warned of the consequence thereof, the court shall proceed as
if he had confessed the charge (* 44).
SECT. XXXII. Pardon and privilege of clergy, shall henceforth
be abolished, that none may be induced to injure through hope of
impunity. But if the verdict be against the defendant, and the
court, before whom the offence is heard and determined, shall doubt
that it may be untrue for default of testimony, or other cause, they
may direct a new trial to be had (* 45).
SECT. XXXIII. No attainder shall work corruption of blood in
any case.
SECT. XXXIV. In all cases of forfeiture, the widow's dower
shall be saved to her, during her title thereto; after which it shall
be disposed of as if no such saving had been.
SECT. XXXV. The aid of Counsel, (* 46) and examination of their
witnesses on oath, shall be allowed to defendants in criminal
prosecutions.
SECT. XXXVI. Slaves guilty of any offence (* 47) punishable in
others by labour in the public works, shall be transported to such
parts in the West-Indies, South-America, or Africa, as the Governor
shall direct, there to be continued in slavery.
(* 1) This takes away the punishment of cutting off the hand of
a person striking another, or drawing his sword in one of the
superior courts of justice. Stamf. P. C. 38. 33. H. 8. c. 12. In
an earlier stage of the Common law, it was death. Gif hwa gefeohte
on Cyninges huse sy he scyldig ealles his yrfes, and sy on Cyninges
dome hwaether he lif age de nage; si quis in regis domo pugnet,
perdat omnem suam haereditatem, et in regis sit arbitrio, possideat
vitam an non possideat. Ll. Inae. 6. Gif hwa on Cyninges healle
gefeohte, oththe his waepne gebrede, and hine mon gefo, sy thaet on
Cyninges dome swa death, swa lif, swa he him forgyfan wille: si quis
in aula regia pugnet, vel arma sua extrahat et capiatur, sit in regis
arbitrio tam mors quam vita, sicut ei condonare voluerit. Ll. Alfr.
7, Gif hwa on Cyninges hirede gefeohte tholige thaet lifes, buton se
Cyning him gearian wille: si quis in regia dimicat, perdat vitam,
nisi rex hoc illi condonare velit. Ll. Cnuti. 56. 4. Bl. 125.
(* 2) 25. E. 3. st. 5. c. 2. 7. W. 3. c. 3. 2.
(* 3) Though the crime of an accomplice in treason is not here
described, yet, Lord Coke says, the partaking and maintaining a
treason herein described, makes him a principal in that treason: it
being a rule that in treason all are principals. 3 Inst. 138. 2 Inst.
590. 1 H. 6. 5.
(* 4) These words in the English statute narrow its operation.
A man adhering to the enemies of the Commonwealth, in a foreign
country, would certainly not be guilty of treason with us, if these
words be retained. The convictions of treason of that kind in England
have been under that branch of the statute which makes the compassing
the king's death treason. Foster 196, 197. But as we omit that
branch, we must by other means reach this flagrant case.
(* 5) The stat. 25. E. 3. directs all other cases of treasons
to await the opinion of Parliament. This has the effect of negative
words, excluding all other treasons. As we drop that part of the
statute, we must, by negative words, prevent an inundation of common
law treasons. I strike out the word "it," therefore, and insert "the
said cases, and no others." Quaere, how far those negative words may
effect the case of accomplices above mentioned? Though if their case
was within the statute, so as that it needed not await the opinion of
Parliament, it should seem to be also within our act, so as not be
ousted by the negative words.
(* 6) This implies "by the neck." See 2 Hawk. 544 notes n. o.
(* 7) By the stat. 21. Jac. 1. c. 27. and Act Ass. 1170. c. 12.
concealment by the mother of the death of a bastard child is made
murder. In justification of this, it is said, that shame is a feeling
which operates so strongly on the mind, as frequently to induce the
mother of such a child to murder it, in order to conceal her
disgrace. The act of concealment, therefore, proves she was
influenced by shame, and that influence produces a presumption that
she murdered the child. The effect of this law then is, to make what,
in its nature, is only presumptive evidence of a murder conclusive of
that fact. To this I answer, 1. So many children die before or soon
after birth, that to presume all those murdered who are found dead,
is a presumption which will lead us oftener wrong than right, and
consequently would shed more blood than it would save. 2. If the
child were born dead, the mother would naturally choose rather to
conceal it, in hopes of still keeping a good character in the
neighborhood. So that the act of concealment is far from proving the
guilt of murder on the mother. 3. If shame be a powerful affection of
the mind, is not parental love also? Is it not the strongest
affection known? Is it not greater than even that of
self-preservation? While we draw presumptions from shame, one
affection of the mind against the life of the prisoner, should we not
give some weight to presumptions from parental love, an affection at
least as strong, in favor of life? If concealment of the fact is a
presumptive evidence of murder, so strong as to overbalance all other
evidence that may possibly be produced to take away the presumption,
why not trust the force of this incontestable presumption to the
jury, who are, in a regular course, to hear presumptive, as well as
positive testimony? If the presumption arising from the act of
concealment, may be destroyed by proof positive or circumstantial to
the contrary, why should the legislature preclude that contrary
proof? Objection. The crime is difficult to prove, being usually
committed in secret. Answer. But circumstantial proof will do; for
example, marks of violence, the behavior, countenance, &c. of the
prisoner, &c. And if conclusive proof be difficult to be obtained,
shall we therefore fasten irremovably upon equivocal proof? Can we
change the nature of what is contestable, and make it incontestable?
Can we make that conclusive which God and nature have made
inconclusive? Solon made no law against parricide, supposing it
impossible that any one could be guilty of it; and the Persians, from
the same opinion, adjudged all who killed their reputed parents to be
bastards; and although parental be yet stronger than filial
affection, we admit saticide proved on the most equivocal testimony,
whilst they rejected all proof of an act certainly not more repugnant
to nature, as of a thing impossible, unprovable. See Beccaria, 31.
(* 8) 25. G. 2. c. 37.
(* 9) Quaere, if the estates of both parties in a duel, should
not be forfeited? The deceased is equally guilty with a suicide.
(* 10) Quaere, if these words may not be omitted? By the
Common law, one witness in treason was sufficient. Foster 233. Plowd.
8. a. Mirror c. 3. 34. Waterhouse on Fortesc. de laud. 252. Carth.
144. per Holt. But Lord Coke, contra 3 inst. 26. The stat. 1. E. 6.
c. 12. & 5. E. 6. c. 11. first required two witnesses in treason. The
clause against high treason supra, does the same as to high treason;
but it seems if 1st and 5th E. 6. are dropped, Petty treason will be
tried and proved, as at Common law, by one witness. But quaere, Lord
Coke being contra, whose opinion it is ever dangerous to neglect.
(* 11) These words are intended to take away the peremptory
challenge of thirty-five jurors. The same words being used 1. 2. Ph.
& M. c. 10. are deemed to have restored the peremptory challenge in
high treason; and consequently are sufficient to take it away. Foster
237.
(* 12) Petty treason is considered in law only as an aggravated
murder. Foster 107. 323. A pardon of all murders, pardons Petty
treason. 1 Hale P. C. 378. see 2 H. P. C. 340. 342. It is also
included in the word "felony," so that a pardon of all felonies,
pardons Petty treason.
(* 13) Manslaughter is punishable at law, by burning in the
hands, and forfeiture of chattels.
(* 14) It is best, in this act, to lay down principles only, in
order that it may not forever be undergoing change; and, to carry
into effect the minuter parts of it, frame a bill "for the employment
and government of felons, or malefactors, condemned to labor for the
Commonwealth," which may serve as an Appendix to this, and in which
all the particulars requisite may be directed; and as experience
will, from time to time, be pointing out amendments, these may be
made without touching this fundamental act. See More's Utopia p. 50.
for some good hints. Fugitives might, in such a bill, be obliged to
work two days for every one they absent themselves.
(* 15) The shooting at a wild fowl, and killing a man, is
homicide by misadventure. Shooting at a pullet, without any design to
take it away, is manslaughter; and with a design to take it away, is
murder. 6 Sta. tr. 222. To shoot at the poultry of another, and
thereby set fire to his house, is arson, in the opinion of some.
Dalt. c. 116. 1. Hale's P. C. 569. c. contra.
(* 16) Beccaria. 32. Suicide. Homicides are, 1. Justifiable. 2.
Excusable. 3. Felonious. For the last, punishments have been already
provided. The first are held to be totally without guilt, or rather
commendable. The second are in some cases not quite unblamable. These
should subject the party to marks of contrition; viz., the killing of
a man in defence of property; so also in defence of one's person,
which is a species of excusable homicide; because, although cases may
happen where these also are commendable, yet most frequently they are
done on too slight appearance of danger; as in return for a blow,
kick, fillip, &c.; or on a person's getting into a house, not animo
furandi, but perhaps veneris causa, &c. Bracton says, "si quis furem
nocturnum occident, ita demum impune foret, si parcere ei sine
periculo suo non potuit, si autem potuit, aliter erit." "Item erit si
quis hamsokne quae dicitur invasio domus contra pacem domini regis in
domo sua se defenderit, et invasor occisus fuerit; impersecutus et
insultus remanebit, si ille quem invasit aliter se defendere non
potuit; dicitur enim quod non est dignus habere pacem qui non vult
observare eam." L. 3. c. 23. 3. "Qui latronem occiderit, non tenetur,
nocturnum vel diurum, si aliter periculum evadere non possit; tenetur
tamen si possit. Item non tenetur si per infortunium, et non animo et
voluntate occidendi, nec dolus, nec culpa ejus inveniatur." L. 3. c.
36. 1. The stat. 24. H. 8. c. 5. is therefore merely declaratory of
the Common law. See on the general subject Puffend. 2. 5. 10. 11.
12. 16. 17. Excusable homicides are by misadventure, or in
self-defence. It is the opinion of some lawyers, that the Common law
punished these with death, and that the statute of Marlbridge c. 26.
and Gloucester, c. 9. first took away this by giving them title to a
pardon, as matter of right, and a writ of restitution of their goods.
See 2. Inst. 148. 315. 3. Inst. 55. Bracton L. 3. c. 4. 2. Fleta L.
1. c. 23. 15. 21. E. 3. 23. But it is believed never to have been
capital. 1. H. P. C. 425. 1 Hawk. 75. Foster, 282. 4. Bl. 188. It
seems doubtful also, whether at Common law, the party forfeited all
his chattels in this case, or only paid a weregild. Foster, ubi
supra, doubts, and thinks it of no consequence, as the statute of
Gloucester entitles the party to Royal grace, which goes as well to
forfeiture as life. To me there seems no reason for calling these
excusable homicides, and the killing a man in defence of property, a
justifiable homicide. The latter is less guiltless than misadventure
or self-defence.
Suicide is by law punishable by forfeiture of chattels. This bill
exempts it from forfeiture. The suicide injures the State less than he who
leaves it with his effects. If the latter then be not punished, the former
should not. As to the example, we need not fear its influence. Men are too
much attached to life, to exhibit frequent instances of depriving themselves
of it. At any rate, the quasi-punishment of confiscation will not prevent it.
For if one be found who can calmly determine to renounce life, who is so
weary of his existence here, as rather to make experiment of what is beyond
the grave, can we suppose him, in such a state of mind, susceptible of
influence from the losses to his family from confiscation? That men in
general, too, disapprove of this severity, is apparent from the constant
practice of juries finding the suicide in a state of insanity; because they
have no other way of saving the forfeiture. Let it then be done away.
(* 17) Beccaria. 19. 25. G. 2. c. 37.
(* 18) 13. E. 1. c. 34. Forcible abduction of a woman having
substance is felony by 3. H. 7. c. 2. 3 Inst. 61. 4 Bl. 208. If
goods be taken, it will be felony as to them, without this statute;
and as to the abduction of the woman, quaere if not better to leave
that, and also kidnapping, 4. Bl. 219. to the Common law remedies,
viz., fine, imprisonment, and pillory, Raym. 474. 2 Show. 221. Skin.
47. Comb. 10. the writs of Homine replegiando, Capias in Withernam,
Habeas corpus, and the action of trespass? Rape was felony at the
Common law. 3. Inst. 60. but see 2. Inst. 181. further -- for its
definition see 2. Inst. 180. Bracton, L. 3. c. 28. 1. says the
punishment of rape is "amissio membrorum, ut sit membrum pro membro,
quia virgo, cum corrumpitur, membrum amittit, et ideo corruptor
puniatur in eo in quo deliquit; oculus igitur amittat propter
aspectum decoris quo virginem concupivit; amittat et testiculos qui
calorem stupri induxerunt. Olim quidem corruptores virginitatis et
castitatis suspendebantur et eorum fautores, &c. Modernis tamen
temporibus aliter observatur," &c. And Fleta, "solet justiciarius pro
quolibet mahemio ad amissionem testiculorum vel oculorum convictum
condemnare, sed non sine errore, eo quod id judicium nisi in
corruptione virginum tantum competebat; nam pro virginitatis
corruptione solebant abscidi et merito judiciari, ut sic pro membro
quod abstulit, membrum per quod deliquit amitteret, viz., testiculos,
qui calorem stupri induxerunt," &c. Fleta, L. 1. c. 40. 4. "Gif
theow man theowne to nydhed genyde, gabte mid his eowende:" "Si
servus servam ad stuprum coegerit, compenset hoc virga sua virili. Si
quis puellam," &c. Ll. Aelfridi. 25. "Hi purgist femme per forze
forfait ad les membres." Ll. Gul. conq. 19. In Dyer, 305, a man was
indicted, and found guilty of a rape on a girl of seven years old.
The court "doubted of the rape of so tender a girl; but if she had
been nine years old, it would have been otherwise." 14. Eliz.
Therefore the statute 18. Eliz. c. 6. says, "For plain declaration of
law, be it enacted, that if any person shall unlawfully and carnally
know and abuse any woman child, under the age of ten years, &c., he
shall suffer as a felon, without allowance of clergy." Lord Hale,
however, 1. P. C. 630. thinks it rape independent of that statute, to
know carnally, a girl under twelve, the age of consent. Yet 4. Bl.
212. seems to neglect this opinion; and as it was founded on the
words of 3. E. 1. c. 13. and this is with us omitted, the offence of
carnally knowing a girl under twelve, or ten years of age, will not
be distinguished from that of any other.
(* 19) I. Jac. 1. c. 11. Polygamy was not penal till the
statute 1. Jac. The law contented itself with the nullity of the act.
4. Bl. 163. 3. Inst. 88.
But no one shall be punished for Polygamy, who shall have
married after probable information of the death of his or her husband
or wife, or after his or her husband or wife, hath absented him or
herself, so that no notice of his or her being alive hath reached
such person for seven years together, or hath suffered the
punishments before prescribed for rape, polygamy, or sodomy.
(* 20) 25. H. 8. c. 6. Buggery is twofold. 1. With mankind, 2.
with beasts. Buggery is the Genus, of which Sodomy and Bestiality,
are the species. 12. Co. 37. says, "note that Sodomy is with
mankind." But Finch's L. B. 3. c. 24. "Sodomiary is a carnal
copulation against nature, to wit, of man or woman in the same sex,
or of either of them with beasts." 12. Co. 36. says, "it appears by
the ancient authorities of the law that this was felony." Yet the 25.
H. 8. declares it felony, as if supposed not to be so. Britton, c. 9.
says, that Sodomites are to be burnt. F. N. B. 269. b. Fleta, L. 1.
c. 37. says, "pecorantes et Sodomitae in terra vivi confodiantur."
The Mirror makes it treason. Bestiality can never make any progress;
it cannot therefore be injurious to society in any great degree,
which is the true measure of criminality in foro civili, and will
ever be properly and severely punished, by universal derision. It
may, therefore, be omitted. It was anciently punished with death, as
it has been latterly. Ll. Aelfrid. 31. and 25. H. 8. c. 6. see
Beccaria. 31. Montesq.
(* 21) Bracton, Fleta, &c.
(* 22) 22. 23. Car. 2. c. 1. Maiming was felony at the Common
law. Britton, c. 25. `Mahemium autem dici poteri, aubia aliquis in
aliqua parte sui corporis laesionem acceperit, per quam affectus sit
inutilis ad pugnandum: ut si manus amputetur, vel pes, oculus
privetur, vel scerda de osse capitis laveter, vel si quis dentes
praecisores amiserit, vel castratus fuerit, et talis pro mahemiato
poterit adjudicari.' Fleta L. 1. c. 40. `Et volons que nul maheme ne
soit tenus forsque de membre tollet dount home es plus feble a
combatre, sicome del oyl, ou de la mayn, ou del pie, ou de la tete
debruse, ou de les dentz devant.' Britton, c. 25. For further
definitions, see Bracton, L. 3. c. 24 3. 4. Finch L. B. 3. c. 12.
Co. L. 126. a. b. 288. a. 3. Bl. 121. 4. Bl. 205. Stamf. P. C. L. 1.
c. 41. I do not find any of these definitions confine the offence to
wilful and malicious perpetrations of it. 22. 23. Car. 2. c. 1.
called the Coventry act, has the words `on purpose and of malice
forethought.' Nor does the Common law prescribe the same punishment
for disfiguring, as for maiming.
(* 23) The punishment was by retaliation. "Et come ascun appele
serra de tele felonie atteint et attende jugement, si soit le
jugement tiel que il perde autriel membre come il avera tollet al
pleintyfe. Et sy la pleynte soi faite de femme que avera tollet a
home ses membres, en tiel cas perdra la femme la une meyn par
jugement, come le membre dount ele axera trespasse." Britton, c. 25.
Fleta, B. 1. c. 40. Ll. AElfr. 19. 40.
(* 24) 25. E. 3. st. 5 c. 2. 5. El. c. 11. 18. El. c. 1. 8. 9.
W. 3. c. 26. 15. 16. G. 2. c. 28. 7. Ann. c. 25. By the laws of
AEthelstan and Canute, this was punished by cutting off the hand.
"Gif se mynetere ful wurthe slea man tha hand of, the he that ful mid
worthe and sette uppon tha mynet smiththan." In English characters
and words "if the minter foul [criminal] wert, slay the hand off,
that he the foul [crime] with wrought, and set upon the
mint-smithery." Ll. Aethelst. 14. "Et si quis praeter hanc, falsam
fecerit, perdat manum quacum falsam confecit." Ll. Cnuti. 8. It had
been death by the Ll. AEthelredi sub fine. By those of H. 1. "si quis
cum falso denario inventus fuerit -- fiat justitia mea, saltem de
dextro pugno et de testiculis." Anno 1108. Operae pretium vero est
audire quam severus rex fuerit in pravos. Monetarios enim fere omnes
totius Angliae fecit ementulari, et manus dextras abscindi, quia
monetam furtive corruperant. Wilkins ib. et anno 1125. When the
Common law became settled, it appears to have been punishable by
death. "Est aluid genus criminis quod sub nomine falsi continetur, et
tangit coronam domini regis, et ultimum inducit supplicium, sicut de
illis qui falsam fabricant monetam, et qui de re non reproba, faciunt
reprobam; sicut sunt retonsores denariorum." Bract. L. 3. c 2. Fleta,
L. 1. c. 22. 4. Lord Hale thinks it was deemed petty treason at
common law. 1. H. P. C. 220. 224. The bringing in false money with
_intent_ to merchandize, and make payment of it, is treason, by 25.
E. 3. But the best proof of the intention, is the act of passing it,
and why not leave room for repentance here, as in other cases of
felonies intended? 1. H. P. C. 229.
(* 25) Clipping, filing, rounding, impairing, scaling,
lightening, (the words in the statutes) are included in
"diminishing;" gilding, in the word "casing;" coloring in the word
"washing;" and falsifying, or making, is "counterfeiting."
(* 26) 43 L. c. 13. confined to four counties. 22. 23. Car. 2.
c. 7. 9. G. 1. c. 22. 9. G. 3. c. 29.
(* 27) Arson was a felony at Common law -- 3. Inst. 66;
punished by a fine, Ll. Aethelst. 6. But Ll. Cnuti, 61. make it a
"scelus inexpiable." "Hus brec and baernet and open thyfth
aeberemorth and hlaford swice aefter woruld laga is botleds." Word
for word, "house break and burnt, and open theft, and manifest
murther, and lord-treachery, afterworld's law is bootless." Bracton
says it was punished by death. "Si quis turbida seditione incendium
fecerit nequiter et in felonia, vel ob inimicitias, vel praedandi
causa, capitali puniatur poena vel sententia." Bract. L. 3. 27. He
defines it as commissible by burning "aedes alienas." Ib. Britton, c.
9. "Ausi soit enquis de ceux que felonisement en temps de pees eient
autre _blees_ ou autre _mesons_ ars, et ceux que serrount de ceo
atteyntz, soient ars issint que eux soient punys par mesme cele chose
dount ilz pecherent." Fleta, L. 1. c. 37. is a copy of Bracton. The
Mirror c. 1. 8. says, "Ardours sont que ardent citie, ville, maison
home, maison beast, ou auters chatelx, de lour felonie en temps de
pace pour haine ou vengeance." Again, c. 2. 11. pointing out the
words of the appellor "jeo dise que Sebright, &c., entiel meason ou
_biens_ mist de feu." Coke 3. Inst. 67. says, "the ancient authors
extended this felony further than houses, viz., to sacks of corn,
waynes or carts of coal, wood or other goods." He denies it as
commissible, not only on the inset houses, parcel of the mansion
house, but the outset also, as barn, stable, cowhouse, sheep house,
dairy house, mill house, and the like, parcel of the mansion house.
But "burning of a barn, being no parcel of a mansion house, is no
felony," unless there be corn or hay within it. Ib. The 22. 23. Car.
2. and 9. G. 1. are the principal statutes against arson. They extend
the offence beyond the Common law.
(* 28) 1. Ann. st. 2. c. 9. 12. Ann. c. 18. 4. G. 1. c. 12. 26.
G. 2. c. 19.
(* 28) 11. 12. W. 3. c. 7.
(* 30) Robbery was a felony at Common law. 3 Inst. 68. "Scelus
inexpiable," by the Ll. Cnuti. 61. [See before in Arson.] It was
punished with death. Britt. c. 15, "de robbours et de larouns et de
semblables mesfesours, soit ausi ententivement enquis -- et tauntost
soient ceux robbours juges a la mort." Fleta says, "si quis convictus
fuerit de bonis viri robbatis vel asportatis ad sectam regis judicium
capitale subibit. L. 1. c. 39. See also Bract. L. 3. c. 32. 1.
(* 31) Burglary was felony at the Common law. 3 Inst. 63. It
was not distinguished by ancient authors, except the Mirror, from
simple House-breaking, ib. 65. Burglary and House-breaking were
called "Hamsockne diximus etiam de pacis violatione et de
immunitatibus domus, si quis hoc in posterum fecerit ut perdat omne
quod habet, et sit in regis arbitrio utrum vitam habeat. Eac we
quaedon be mundbryce and be ham socnum, sethe hit ofer this do thaet
he dolie ealles thaes the age, and sy on Cyninges dome hwaether he
life age; and we quoth of mound-breach, and of home-seeking he who it
after this do, that he dole all that he owe [owns], and is in king's
doom whether he life owes [owns.] Ll. Eadmundi, c. 6. and see Ll.
Cnuti. 61. "hus brec," in notes on Arson. ante. A Burglar was also
called a Burgessor. "Et soit enquis de Burgessours et sunt tenus
Burgessours trestous ceux que _felonisement_ en temps de pees
debrusont esglises ou auter mesons, ou murs ou portes de nos cytes,
ou de nos Burghes." Britt. c. 10. "Burglaria est nocturna diruptio
habitaculi alicu jus, vel ecclesiae, etiam murorum, partarumve
civitatis aut burgi, ad feloniam aliquam perpetrandam. _Noctanter_
dico, recentiores secutus; veteres enim hoc non adjungunt." Spelm.
gloss. verb. Burglaria. It was punished with death. Ib. citn. from
the office of a Coroner. It may be committed in the outset houses, as
well as inset. 3 Inst. 65. though not under the same roof or
contiguous, provided they be within the Curtilage or Homestall. 4 Bl.
225. As by the Common law, all felonies were clergiable, the stat. 23
H. 8. c. 1. 5. E. 6. c. 9. and 18 El. c. 7. first distinguished them,
by taking the clerical privilege of impunity from the principals, and
3. 4. W. M. c. 9. from accessories before the fact. No _statute_
defines what Burglary is. The 12 Ann. c. 7. decides the doubt
whether, where breaking is subsequent to entry, it is Burglary.
Bacon's Elements had affirmed, and 1. H. P. C. 554. had denied it.
Our bill must distinguish them by different degrees of punishment.
(* 32) At the Common law, the offence of Housebreaking was not
distinguished from Burglary, and neither of them from any other
larceny. The statutes at first took away clergy from Burglary, which
made a leading distinction between the two offences. Later statutes,
however, have taken clergy from so many cases of Housebreaking, as
nearly to bring the offences together again. These are 23 H. 8. c. 1.
1 E. 6. c. 12. 5 and 6 E. 6. c. 9. 3 and 4 W. M. c. 9. 39 El. c. 15.
10 and 11 W. 3 c. 23. 12 Ann. c. 7. See Barr. 428. 4 Bl. 240. The
circumstances which in these statutes characterize the offence, seem
to have been occasional and unsystematical. The houses on which
Burglary may be committed, and the circumstances which constitute
that crime being ascertained, it will be better to define
Housebreaking by the same subjects and circumstances, and let the
crimes be distinguished only by the hour at which they are committed,
and the degree of punishment.
(* 33) The offence of Horse-stealing seems properly
distinguishable from other larcenies, here, where these animals
generally run at large, the temptation being so great and frequent,
and the facility of commission so remarkable. See 1 E. 6. c. 12. 23
E. 6. c. 33. 31 El. c. 12.
(* 34) The distinction between grand and petty larceny, is very
ancient. At first 8d. was the sum which constituted grand larceny.
Ll. AEthelst. c. 1. "Ne parcatur ulli furi, qui furtum manutenens
captus sit, supra 12. annos nato, et supra 8. denarios." Afterwards,
in the same king's reign it was raised to 12d. "non parcatur alicui
furi ultra 12 denarios, et ultra 12 annos nato --- ut occidemus illum
et capiamus omne quod possidet, et imprimis sumamus rei furto ablatae
pretium ab haerede, ac dividatur postea reliquum in duas partes, una
pars uxori, si munda, et facinoris conscia non sit; et residuum in
duo, dimidium capiat rex, dimidium societas." Ll. Aethelst. Wilkins,
p. 65.
(* 35) Ll. Inae. c. 7. "Si quis furetur ita ut uxor ejus et
infans ipsius nesciant, solvat 60. solidos poenae loco. Si autem
furetur testantibus omnibus haeredibus suis, _abeant omnes in
servitutem_." Ina was king of the West-Saxons, and began to reign A.
C. 688. After the union of the Heptarchy, i. e. temp. AEthelst, inter
924 and 940, we find it punishable with death as above. So it was
inter 1017 and 1035, i. e. temp. Cnuti. Ll. Cnuti. 61. cited in notes
on Arson. In the time of William the conqueror, it seems to have been
made punishable by fine only. Ll. Gul. conq. apud Wilk. p. 218, 220.
This commutation, however, was taken away by Ll. H. 1. anno 1108. "Si
quis in furto vel latrocinio deprehensus fuisset, suspenderetur;
sublata wirgildorum, id est, pecuniarae redemptionis lege." Larceny
is the felonious taking and carrying away of the personal goods of
another. 1. As to the taking, the 3. 4. W. M. c. 9 5. is not
additional to the Common law, but declaratory of it; because where
only the care or use, and not the possession, of things is delivered,
to take them was larceny at the Common law. The 33 H. 6. c. 1. and
21, H. 8. c. 7. indeed, have added to the Common law, by making it
larceny in a servant to convert things of his master's. But quaere,
if they should be imitated more than as to other breaches of trust in
general. 2. As to the subject of larceny, 4 G. 2. c. 32. 6 G. 3. c.
36. 48. 45. El. c. 7. 15 Car. 2. c. 2. 23 G. 2. c. 26. 31 G. 2. c.
35. 9 G. 3. c. 41. 25 G. 2. c. 10. have extended larceny to things of
various sorts either real, or fixed to the reality. But the
enumeration is unsystematical, and in this country, where the produce
of the earth is so spontaneous, as to have rendered things of this
kind scarcely a breach of civility or good manners, in the eyes of
the people, quaere, if it would not too much enlarge the field of
Criminal law? The same may be questioned of 9 G. 1. c. 22. 13 Car.
2. c. 10. 10 G. 2. c. 32. 5 G. 3. c. 14. 22 and 23 Car. 2. c. 25. 37
E. 3. c. 19. making it felony to steal animals ferae naturae.
(* 36) 2 G. 2. c. 25 3. 7 G. 3. c. 50.
(* 37) 3. 4. W. M. c. 9. 4. 5 Ann. c. 31. 5. 4 G. 1. c. 11.
1.
(* 38) 1 E. 2.
(* 39) Breach of prison at the Common law was capital, without
regard to the crime for which the party was committed. "Cum pro
criminis qualitate in carcerem recepti fuerint, conspiraverint (ut
ruptis vinculis aut fracto carcere) evadant, amplius (quam causa pro
qua recepti sunt exposeit) puniendi sunt, videlicet ultimo supplicio,
quamvis ex eo crimine innocentes inveniantur, propter quod inducti
sunt in carcerem et imparcati." Bracton L. 3. c. 9. 4. Britt. c. 11.
Fleta, L. 1. c. 26. 4. Yet in the Y. B. Hill. 1. H. 7. 2. Hussey
says, that by the opinion of Billing and Coke, and all the justices,
it was a felony in strangers only, but not in the prisoner himself.
S. C. Fitz. Abr. Coron. 48. They are the principal felons, not
accessaries. ib. Whether it was felony in the prisoner at Common law,
is doubted. Stam. P. C. 30. b. The Mirror c. 5. 1, says "abusion est
a tener escape de prisoner, ou de bruserie del gaole pur peche
mortell, car cel usage nest garrant per nul ley, ne in nul part est
use forsque in cest realme, et en France, eins [mais] est leu
garrantie de ceo faire per la ley de nature." 2 Inst. 589. The stat.
1. E. 2. de fraugentibus prisonam, restrained the judgment of life
and limb for prison breaking, to cases where the offence of the
prisoner required such judgment.
It is not only vain, but wicked, in a legislator to frame laws in
opposition to the laws of nature, and to arm them with the terrors of death.
This is truly creating crimes in order to punish them. The law of nature
impels every one to escape from confinement; it should not, therefore, be
subjected to punishment. Let the legislator restrain his criminal by walls,
not by parchment. As to strangers breaking prison to enlarge an offender,
they should, and may be fairly considered as accessaries after the fact. This
bill says nothing of the prisoner releasing himself by breach of jail, he
will have the benefit of the first section of the bill, which repeals the
judgment of life and death at the common law.
(* 40) Gif wiccan owwe wigleras nansworan, owwe morthwyrhtan
owwe fule afylede aebere horcwenan ahwhar on lande wurthan agytene,
thonne fyrsie man of earde and claensie tha theode, owwe on earde
forfare hi mid ealle, buton hi geswican and the deoper gebetan: if
witches, or weirds, man-swearers, murther-wroughters, or foul,
defiled, open whore-queens, anywhere in the land were gotten, then
force them off earth, and cleanse the nation, or in earth forth-fare
them withal, but on they beseech, and deeply better. Ll. Ed. et
Guthr. c. ii. "Sagae, mulieres barbara, factitantes sacrificia, aut
pestiferi, si cui mortem intulerint, neque id inficiari poterint,
capitis poena esto." Ll. AEthelst. c. 6. apud Lambard. Ll. Aelfr. 30.
Ll. Cnuti. c. 4. "Mesme cel jugement (d'etrears) eyent sorcers, et
sorceresses, &c. ut supra. Fleta ut et ubi supra." 3. Inst. 44. Trial
of witches before Hale in 1664. The statutes 33 H. 8. c. 8. 5 El. c.
16 and I Jac. I. c. 12. seem to be only in confirmation of the Common
law. 9 G. 2. c. 25. punishes them with pillory, and a year's
imprisonment. 3 E. 6. c. 15. 5 El. c. 15. punish fond, fantastical
and false prophecies, by fine and imprisonment.
(* 41) I Ann. c. 9. 2.
(* 42) As every treason includes within it a misprision of
treason, so every felony includes a misprision, or misdemeanor. I
Hale P. C. 652. 708. "Licet fuerit felonia, tamen in eo continetur
misprisio." 2 R. 3. 10. Both principal and accessary, therefore, may
be proceeded against in any case, either for felony or misprision, at
the Common law. Capital cases not being mentioned here, accessaries
to them will of course be triable for misprisions, if the offender
flies.
(* 43) E. I. c. 12.
(* 44) Whether the judgment of penance lay at Common law. See 2
Inst. 178. 2 H. P. C. 321. 4 Bl. 322. It was given on standing mute;
but on challenging more than the legal number, whether that sentence,
or sentence of death is to be given, seems doubtful. 2 H. P. C. 316.
Quaere, whether it would not be better to consider the supernumerary
challenge as merely void, and to proceed in the trial? Quaere too,
in case of silence?
(* 45) "Cum Clericus sic de crimine convictus degradetur non
sequitur alia poena pro uno delicto, vel pluribus ante degradationem
perpetratis. Satis enim sufficit ei pro poena degradatio, quae est
magna capitis diminutio, nisi forte convictus fuerit de apostatia,
quia hinc primo degradetur, et postea per manum laicalem comburetur,
secundum quod accidit in concilio Oxoni celebrato a bonae memoriae S.
Cantuanen. Archiepiscopo de quodam diacono, qui se apostatavit pro
quadam Judaae; qui cum esset per episcopum degradatus, statim fuit
igni traditus per manum laicalem." Bract. L. 3. c. 9. 2. "Et mesme
cel jugement (i. e. qui ils soient ars eyent) sorcers et sorceresses,
et sodomites et mescreauntz apertement atteyntz." Britt. c. 9.
"Christiani autem Apostatae, sortilegii, et hujusmodi detractari
debent et comburi." Fleta, L. I. c. 37. 2 see 3. Inst. 39. 12. Rep.
92. I H. P. C. 393. The extent of the clerical privilege at the
Common law. I. As to the crimes, seems very obscure and uncertain. It
extended to no case where the judgment was not of life, or limb. Note
in 2. H. P. C. 326. This therefore excluded it in trespass, petty
larceny, or killing se defendendo. In high treason against the person
of the King, it seems not to have been allowed. Note I. H. P. C.
185. Treasons, therefore, not against the King's person immediately,
petty treasons and felonies, seem to have been the cases where it was
allowed; and even of those, not for insidiatio varium, depopulatio
agrorum, or combustio domorum. The statute de Clero, 25 E. 3. st. 3.
c. 4. settled the law on this head. 2. As to the persons, it
extended to all clerks, always, and toties quoties. 2 H. P. C. 374.
To nuns also. Fitz. Abr. Corone. 461. 22. E. 3. The clerical habit
and tonsure were considered as evidence of the person being clerical.
26. Assiz. 19. 20. E. 2. Fitz. Corone. 233. By the 9 E. 4. 28. b.
34. H. 6. 49 a. b. a simple reading became the evidence. This
extended impunity to a great number of laymen, and toties quoties.
The stat. 4 H. 7. c. 13. directed that real clerks should, upon a
second arraignment, produce their orders, and all others to be burnt
in the hand with M. or T. on the first allowance of clergy, and not
to be admitted to it a second time. A heretic, Jew, or Turk (as being
incapable of orders) could not have clergy. II. Co. Rep. 29 b. But a
Greek, or other alien, reading in a book of his own country, might.
Bro. Clergie. 20. So a blind man, if he could speak Latin. Ib. 21.
qu. II. Rep. 29. b. The orders entitling the party, were bishops,
priests, deacons and subdeacons, the inferior being reckoned Clerici
in minoribus. 2. H. P. C. 373. Quaere, however, if this distinction
is not founded on the stat. 23 H. 8. c. I. 25 H. 8. c. 32. By merely
dropping all the statutes, it should seem that none but clerks would
be entitled to this privilege, and that they would, toties quoties.
(* 46) I Ann. c. 9.
(* 47) Manslaughter, counterfeiting, arson, asportation of
vessels, robbery, burglary, house-breaking, horse-stealing, larceny.
_A Bill for the More General Diffusion of Knowledge_
SECTION I. Whereas it appeareth that however certain forms of
government are better calculated than others to protect individuals
in the free exercise of their natural rights, and are at the same
time themselves better guarded against degeneracy, yet experience
hath shewn, that even under the best forms, those entrusted with
power have, in time, and by slow operations, perverted it into
tyranny; and it is believed that the most effectual means of
preventing this would be, to illuminate, as far as practicable, the
minds of the people at large, and more especially to give them
knowledge of those facts, which history exhibiteth, that, possessed
thereby of the experience of other ages and countries, they may be
enabled to know ambition under all its shapes, and prompt to exert
their natural powers to defeat its purposes; And whereas it is
generally true that the people will be happiest whose laws are best,
and are best administered, and that laws will be wisely formed, and
honestly administered, in proportion as those who form and administer
them are wise and honest; whence it becomes expedient for promoting
the publick happiness that those persons, whom nature hath endowed
with genius and virtue, should be rendered by liberal education
worthy to receive, and able to guard the sacred deposit of the rights
and liberties of their fellow citizens, and that they should be
called to that charge without regard to wealth, birth or other
accidental condition or circumstance; but the indigence of the
greater number disabling them from so educating, at their own
expence, those of their children whom nature hath fitly formed and
disposed to become useful instruments for the public, it is better
that such should be sought for and educated at the common expence of
all, than that the happiness of all should be confided to the weak or
wicked:
SECT. II. BE it therefore enacted by the General Assembly, that
in every county within this commonwealth, there shall be chosen
annually, by the electors qualified to vote for Delegates, three of
the most honest and able men of their county, to be called the
Aldermen of the county; and that the election of the said Aldermen
shall be held at the same time and place, before the same persons,
and notified and conducted in the same manner as by law is directed
for the annual election of Delegates for the county.
SECT. III. THE person before whom such election is holden shall
certify to the court of the said county the names of the Aldermen
chosen, in order that the same may be entered of record, and shall
give notice of their election to the said Aldermen within a fortnight
after such election.
SECT. IV. THE said Aldermen on the first Monday in October, if
it be fair, and if not, then on the next fair day, excluding Sunday,
shall meet at the court-house of their county, and proceed to divide
their said county into hundreds, bounding the same by water courses,
mountains, or limits, to be run and marked, if they think necessary,
by the county surveyor, and at the county expence, regulating the
size of the said hundreds, according to the best of their discretion,
so as that they may contain a convenient number of children to make
up a school, and be of such convenient size that all the children
within each hundred may daily attend the school to be established
therein, distinguishing each hundred by a particular name; which
division, with the names of the several hundreds, shall be returned
to the court of the county and be entered of record, and shall remain
unaltered until the increase or decrease of inhabitants shall render
an alteration necessary, in the opinion of any succeeding Aldermen,
and also in the opinion of the court of the county.
SECT. V. THE electors aforesaid residing within every hundred
shall meet on the third Monday in October after the first election of
Aldermen, at such place, within their hundred, as the said Aldermen
shall direct, notice thereof being previously given to them by such
person residing within the hundred as the said Aldermen shall require
who is hereby enjoined to obey such requisition, on pain of being
punished by amercement and imprisonment. The electors being so
assembled shall choose the most convenient place within their hundred
for building a school-house. If two or more places, having a greater
number of votes than any others, shall yet be equal between
themselves, the Aldermen, or such of them as are not of the same
hundred, on information thereof, shall decide between them. The said
Aldermen shall forthwith proceed to have a school-house built at the
said place, and shall see that the same be kept in repair, and, when
necessary, that it be rebuilt; but whenever they shall think
necessary that it be rebuilt, they shall give notice as before
directed, to the electors of the hundred to meet at the said
school-house, on such day as they shall appoint, to determine by
vote, in the manner before directed, whether it shall be rebuilt at
the same, or what other place in the hundred.
SECT. VI. AT every of these schools shall be taught reading,
writing, and common arithmetick, and the books which shall be used
therein for instructing the children to read shall be such as will at
the same time make them acquainted with Graecian, Roman, English, and
American history. At these schools all the free children, male and
female, resident within the respective hundred, shall be intitled to
receive tuition gratis, for the term of three years, and as much
longer, at their private expence, as their parents, guardians or
friends, shall think proper.
SECT. VII. OVER ten of these schools (or such other number
nearest thereto, as the number of hundreds in the county will admit,
without fractional divisions) an overseer shall be appointed annually
by the Aldermen at their first meeting, eminent for his learning,
integrity, and fidelity to the commonwealth, whose business and duty
it shall be, from time to time, to appoint a teacher to each school,
who shall give assurance of fidelity to the commonwealth, and to
remove him as he shall see cause; to visit every school once in every
half year at the least, to examine the schollars; see that any
general plan of reading and instruction recommended by the visiters
of William and Mary College shall be observed; and to superintend the
conduct of the teacher in every thing relative to his school.
SECT. VIII. EVERY teacher shall receive a salary of by the
year, which, with the expences of building and repairing the school
houses, shall be provided in such manner as other county expences are
by law directed to be provided and shall also have his diet, lodging,
and washing found him, to be levied in like manner, save only that
such levy shall be on the inhabitants of each hundred for the board
of their own teacher only.
SECT. IX. AND in order that grammer schools may be rendered
convenient to the youth in every part of the commonwealth, BE it
farther enacted, that on the first Monday in November, after the
first appointment of overseers for the hundred schools, if fair, and
if not, then on the next fair day, excluding Sunday, after the hour
of one in the afternoon, the said overseers appointed for the schools
in the counties of Princess Ann, Norfolk, Nansemond and
Isle-of-Wight, shall meet at Nansemond court house; those for the
counties of Southampton, Sussex, Surry and Prince George, shall meet
at Sussex court-house; those for the counties of Brunswick,
Mecklenburg and Lunenburg, shall meet at Lunenburg court-house; those
for the counties of Dinwiddie, Amelia and Chesterfield, shall meet at
Chesterfield court-house; those for the counties of Powhatan,
Cumberland, Goochland, Henrico and Hanover, shall meet at Henrico
court-house; those for the counties of Prince Edward, Charlotte and
Halifax, shall meet at Charlotte court-house; those for the counties
of Henry, Pittsylvania and Bedford, shall meet at Pittsylvania
court-house; those for the counties of Buckingham, Amherst, Albemarle
and Fluvanna, shall meet at Albemarle court-house; those for the
counties of Botetourt, Rockbridge, Montgomery, Washington and
Kentucky, shall meet at Botetourt court-house; those for the counties
of Augusta, Rockingham and Greenbrier, shall meet at Augusta
court-house; those for the counties of Accomack and Northampton,
shall meet at Accomack court-house; those for the counties of
Elizabeth City, Warwick, York, Gloucester, James City, Charles City
and New Kent, shall meet at James City court-house; those for the
counties of Middlesex, Essex, King and Queen, King William and
Caroline, shall meet at King and Queen court-house; those for the
counties of Lancaster, Northumberland, Richmond and Westmoreland,
shall meet at Richmond court-house; those for the counties of King
George, Stafford, Spotsylvania, Prince William and Fairfax, shall
meet at Spotsylvania court-house; those for the counties of Loudoun
and Fauquier, shall meet at Loudoun court-house; those for the
counties of Culpeper, Orange and Louisa, shall meet at Orange
court-house; those for the counties of Shenandoah and Frederick,
shall meet at Frederick court-house; those for the counties of
Hampshire and Berkeley, shall meet at Berkeley court house; and those
for the counties of Yohogania, Monongalia and Ohio, shall meet at
Monongalia court-house; and shall fix on such place in some one of
the counties in their district as shall be most proper for situating
a grammar school-house, endeavouring that the situation be as central
as may be to the inhabitants of the said counties, that it be
furnished with good water, convenient to plentiful supplies of
provision and fuel, and more than all things that it be healthy. And
if a majority of the overseers present should not concur in their
choice of any one place proposed, the method of determining shall be
as follows: If two places only were proposed, and the votes be
divided, they shall decide between them by fair and equal lot; if
more than two places were proposed, the question shall be put on
those two which on the first division had the greater number of
votes; or if no two places had a greater number of votes than the
others, as where the votes shall have been equal between one or both
of them and some other or others, then it shall be decided by fair
and equal lot (unless it can be agreed by a majority of votes) which
of the places having equal numbers shall be thrown out of the
competition, so that the question shall be put on the remaining two,
and if on this ultimate question the votes shall be equally divided,
it shall then be decided finally by lot.
SECT. X. THE said overseers having determined the place at
which the grammer school for their district shall be built, shall
forthwith (unless they can otherwise agree with the proprietors of
the circumjacent lands as to location and price) make application to
the clerk of the county in which the said house is to be situated,
who shall thereupon issue a writ, in the nature of a writ of ad quod
damnum, directed to the sheriff of the said county commanding him to
summon and impannel twelve fit persons to meet at the place, so
destined for the grammer school-house, on a certain day, to be named
in the said writ, not less than five, nor more than ten, days from
the date thereof; and also to give notice of the same to the
proprietors and tenants of the lands to be viewed, if they be to be
found within the county, and if not, then to their agents therein if
any they have. Which freeholders shall be charged by the said
sheriff impartially, and to the best of their skill and judgement to
view the lands round about the said place, and to locate and
circumscribe, by certain metes and bounds, one hundred acres thereof,
having regard therein principally to the benefit and convenience of
the said school, but respecting in some measure also the convenience
of the said proprietors, and to value and appraise the same in so
many several respective interests and estates therein. And after
such location and appraisement so made, the said sheriff shall
forthwith return the same under the hands and seals of the said
jurors, together with the writ, to the clerk's office of the said
county and the right and property of the said proprietors and tenants
in the said lands so circumscribed shall be immediately devested and
be transferred to the commonwealth for the use of the said grammar
school, in full and absolute dominion, any want of consent or
disability to consent in the said owners or tenants notwithstanding.
But it shall not be lawful for the said overseers so to situate the
said grammar school-house, nor to the said jurors so to locate the
said lands, as to include the mansion-house of the proprietor of the
lands, nor the offices, curtilage, or garden, thereunto immediately
belonging.
SECT. XI. THE said overseers shall forthwith proceed to have a
house of brick or stone, for the said grammar school, with necessary
offices, built on the said lands, which grammer school-house shall
contain a room for the school, a hall to dine in, four rooms for a
master and usher, and ten or twelve lodging rooms for the scholars.
SECT. XII. TO each of the said grammar schools shall be allowed
out of the public treasury, the sum of pounds, out of which shall be
paid by the Treasurer, on warrant from the Auditors, to the
proprietors or tenants of the lands located, the value of their
several interests as fixed by the jury, and the balance thereof shall
be delivered to the said overseers to defray the expence of the said
buildings.
SECT. XIII. IN these grammar schools shall be taught the Latin
and Greek languages, English grammar, geography, and the higher part
of numerical arithmetick, to wit, vulgar and decimal fractions, and
the extraction of the square and cube roots.
SECT. XIV. A visiter from each county constituting the district
shall be appointed, by the overseers, for the county, in the month of
October annually, either from their own body or from their county at
large, which visiters or the greater part of them, meeting together
at the said grammar school on the first Monday in November, if fair,
and if not, then on the next fair day, excluding Sunday, shall have
power to choose their own Rector, who shall call and preside at
future meetings, to employ from time to time a master, and if
necessary, an usher, for the said school, to remove them at their
will, and to settle the price of tuition to be paid by the scholars.
They shall also visit the school twice in every year at the least,
either together or separately at their discretion, examine the
scholars, and see that any general plan of instruction recommended by
the visiters of William and Mary College shall be observed. The said
masters and ushers, before they enter on the execution of their
office, shall give assurance of fidelity to the commonwealth.
SECT. XV. A steward shall be employed, and removed at will by
the master, on such wages as the visiters shall direct; which steward
shall see to the procuring provisions, fuel, servants for cooking,
waiting, house cleaning, washing, mending, and gardening on the most
reasonable terms; the expence of which, together with the steward's
wages, shall be divided equally among all the scholars boarding
either on the public or private expence. And the part of those who
are on private expence, and also the price of their tuitions due to
the master or usher, shall be paid quarterly by the respective
scholars, their parents, or guardians, and shall be recoverable, if
withheld, together with costs, on motion in any Court of Record, ten
days notice thereof being previously given to the party, and a jury
impannelled to try the issue joined, or enquire of the damages. The
said steward shall also, under the direction of the visiters, see
that the houses be kept in repair, and necessary enclosures be made
and repaired, the accounts for which, shall, from time to time, be
submitted to the Auditors, and on their warrant paid by the
Treasurer.
SECT. XVI. EVERY overseer of the hundred schools shall, in the
month of September annually, after the most diligent and impartial
examination and enquiry, appoint from among the boys who shall have
been two years at the least at some one of the schools under his
superintendance, and whose parents are too poor to give them farther
education, some one of the best and most promising genius and
disposition, to proceed to the grammar school of his district; which
appointment shall be made in the court-house of the county, on the
court day for that month, if fair, and if not, then on the next fair
day, excluding Sunday, in the presence of the Aldermen, or two of
them at the least, assembled on the bench for that purpose, the said
overseer being previously sworn by them to make such appointment,
without favor or affection, according to the best of his skill and
judgment, and being interrogated by the said Aldermen, either on
their own motion, or on suggestions from the parents, guardians,
friends, or teachers of the children, competitors for such
appointment; which teachers shall attend for the information of the
Aldermen. On which interrogatories the said Aldermen, if they be not
satisfied with the appointment proposed, shall have right to negative
it; whereupon the said visiter may proceed to make a new appointment,
and the said Aldermen again to interrogate and negative, and so
toties quoties until an appointment be approved.
SECT. XVII. EVERY boy so appointed shall be authorised to
proceed to the grammar school of his district, there to be educated
and boarded during such time as is hereafter limited; and his quota
of the expences of the house together with a compensation to the
master or usher for his tuition, at the rate of twenty dollars by the
year, shall be paid by the Treasurer quarterly on warrant from the
Auditors.
SECT. XVIII. A visitation shall be held, for the purpose of
probation, annually at the said grammar school on the last Monday in
September, if fair, and if not, then on the next fair day, excluding
Sunday, at which one third of the boys sent thither by appointment of
the said overseers, and who shall have been there one year only,
shall be discontinued as public foundationers, being those who, on
the most diligent examination and enquiry, shall be thought to be of
the least promising genius and disposition; and of those who shall
have been there two years, all shall be discontinued, save one only
the best in genius and disposition, who shall be at liberty to
continue there four years longer on the public foundation, and shall
thence forward be deemed a senior.
SECT. XIX. THE visiters for the districts which, or any part of
which, be southward and westward of James river, as known by that
name, or by the names of Fluvanna and Jackson's river, in every other
year, to wit, at the probation meetings held in the years,
distinguished in the Christian computation by odd numbers, and the
visiters for all the other districts at their said meetings to be
held in those years, distinguished by even numbers, after diligent
examination and enquiry as before directed, shall chuse one among the
said seniors, of the best learning and most hopeful genius and
disposition, who shall be authorised by them to proceed to William
and Mary College, there to be educated, boarded, and clothed, three
years; the expence of which annually shall be paid by the Treasurer
on warrant from the Auditors.
_A Bill Declaring Who Shall Be Deemed Citizens of this
Commonwealth_
SECTION I. Be it enacted by the General Assembly, that all
white persons born within the territory of this commonwealth and all
who have resided therein two years next before the passing of this
act, and all who shall hereafter migrate into the same; and shall
before any court of record give satisfactory proof by their own oath
or affirmation, that they intend to reside therein, and moreover
shall give assurance of fidelity to the commonwealth; and all infants
wheresoever born, whose father, if living, or otherwise, whose mother
was, a citizen at the time of their birth, or who migrate hither,
their father, if living, or otherwise their mother becoming a
citizen, or who migrate hither without father or mother, shall be
deemed citizens of this commonwealth, until they relinquish that
character in manner as herein after expressed: And all others not
being citizens of any the United States of America, shall be deemed
aliens. The clerk of the court shall enter such oath of record, and
give the person taking the same a certificate thereof, for which he
shall receive the fee of one dollar. And in order to preserve to the
citizens of this commonwealth, that natural right, which all men have
of relinquishing the country, in which birth, or other accident may
have thrown them, and, seeking subsistance and happiness wheresoever
they may be able, or may hope to find them: And to declare
unequivocably what circumstances shall be deemed evidence of an
intention in any citizen to exercise that right, it is enacted and
declared, that whensoever any citizen of this commonwealth, shall by
word of mouth in the presence of the court of the county, wherein he
resides, or of the General Court, or by deed in writing, under his
hand and seal, executed in the presence of three witnesses, and by
them proved in either of the said courts, openly declare to the same
court, that he relinquishes the character of a citizen, and shall
depart the commonwealth; or whensoever he shall without such
declaration depart the commonwealth and enter into the service of any
other state, not in enmity with this, or any other of the United
States of America, or do any act whereby he shall become a subject or
citizen of such state, such person shall be considered as having
exercised his natural right of expatriating himself, and shall be
deemed no citizen of this commonwealth from the time of his
departure. The free white inhabitants of every of the states,
parties to the American confederation, paupers, vagabonds and
fugitives from justice excepted, shall be intitled to all rights,
privileges, and immunities of free citizens in this commonwealth, and
shall have free egress, and regress, to and from the same, and shall
enjoy therein, all the privileges of trade, and commerce, subject to
the same duties, impositions and restrictions as the citizens of this
commonwealth. And if any person guilty of, or charged with treason,
felony, or other high misdemeanor, in any of the said states, shall
flee from justice and be found in this commonwealth, he shall, upon
demand of the Governor, or Executive power of the state, from which
he fled, be delivered up to be removed to the state having
jurisdiction of his offence. Where any person holding property,
within this commonwealth, shall be attainted within any of the said
states, parties to the said confederation, of any of those crimes,
which by the laws of this commonwealth shall be punishable by
forfeiture of such property, the said property shall be disposed of
in the same manner as it would have been if the owner thereof had
been attainted of the like crime in this commonwealth.
_Report on Government for Western Territory_
March 1, 1784
The committee appointed to prepare a plan for the temporary
Government of the Western territory have agreed to the following
resolutions:
Resolved that the territory ceded or to be ceded by Individual
States to the United States whensoever the same shall have been
purchased of the Indian Inhabitants & offered for sale by the U. S.
shall be formed into distinct States bounded in the following manner
as nearly as such cessions will admit, that is to say; Northwardly &
Southwardly by parallels of latitude so that each state shall
comprehend from South to North two degrees of latitude beginning to
count from the completion of thirty-one degrees North of the equator,
but any territory Northwardly of the 47'th. degree shall make part of
the state -- below, and Eastwardly & Westwardly they shall be
bounded, those on the Mississippi by that river on one side and the
meridian of the lowest point of the rapids of Ohio on the other; and
those adjoining on the East by the same meridian on their Western
side, and on their eastern by the meridian of the Western cape of the
mouth of the Great Kanhaway. And the territory eastward of this last
meridian between the Ohio, Lake Erie & Pennsylvania shall be one
state.
That the settlers within the territory so to be purchased &
offered for sale shall, either on their own petition, or on the order
of Congress, receive authority from them, with appointments of time
and place for their free males of full age to meet together for the
purpose of establishing a temporary government, to adopt the
constitution & laws of any one of these states, so that such laws
nevertheless shall be subject to alteration by their ordinary
legislature, and to erect, subject to a like alteration counties or
townships for the election of members for their legislature.
That such temporary government shall only continue in force in
any state until it shall have acquired 20,000 free inhabitants, when,
giving due proof thereof to Congress, they shall receive from them
authority with appointments of time and place to call a Convention of
representatives to establish a permanent Constitution & Government
for themselves.
Provided that both the temporary & permanent Governments be
established on these principles as their basis. 1, That they shall
forever remain a part of the United States of America. 2, That in
their persons, property & territory, they shall be subject to the
Government of the United States in Congress assembled and to the
articles of confederation in all those cases in which the original
states shall be so subject. 3, That they shall be subject to pay a
part of the federal debts contracted or to be contracted to be
apportioned on them by Congress, according to the same common rule
and measure by which apportionments thereof shall be made on the
other states. 4, That their respective Governments shall be in
republican forms, and shall admit no person to be a citizen, who
holds any hereditary title. 5, That after the year 1800 of the
Christian aera, there shall be neither slavery nor involuntary
servitude in any of the said states, otherwise than in punishment of
crimes, whereof the party shall have been duly convicted to have been
personally guilty.
That whenever any of the sd states shall have, of free
inhabitants as many as shall then be in any one the least numerous of
the thirteen original states, such state shall be admitted by it's
delegates into the Congress of the United States, on an equal footing
with the said original states: After which the assent of two thirds
of the United States in Congress assembled shall be requisite in all
those cases, wherein by the Confederation the assent of nine States
is now required. Provided the consent of nine states to such
admission may be obtained according to the eleventh of the Articles
of Confederation. Until such admission by their delegates into
Congress, any of the said states, after the establishment of their
temporary Government, shall have authority to keep a sitting Member
in Congress, with a right of debating, but not of voting.
That the territory Northward of the 45'th. degree, that is to
say of the completion of 45 degrees from the Equator & extending to
the Lake of the Woods, shall be called SYLVANIA:
That of the territory under the 45'th.& 44'th. degrees that
which lies Westward of Lake Michigan shall be called MICHIGANIA, and
that which is Eastward thereof within the peninsula formed by the
lakes & waters of Michigan, Huron, St. Clair and Erie, shall be
called CHERRONESUS, and shall include any part of the peninsula which
may extend above the 45th degree.
Of the territory under the 43'd & 42'd degrees, that to the
Westward thro' which the Assenisipi or Rock river runs shall be
called ASSENISIPIA, and that to the Eastward in which are the
fountains of the Muskingum, the two Miamis of Ohio, the Wabash, the
Illinois, the Miami of the lake and Sandusky rivers, shall be called
METROPOTAMIA.
Of the territory which lies under the 41'st. & 40'th. degrees
the Western, thro which the river Illinois runs, shall be called
ILLINOIA; that next adjoining to the Eastward SARATOGA, and that
between this last & Pennsylvania & extending from the Ohio to Lake
Erie shall be called WASHINGTON.
Of the territory which lies under the 39'th.& 38'th. degrees to
which shall be added so much of the point of land within the fork of
the Ohio & Missisipi as lies under the 37th. degree, that to the
Westward within & adjacent to which are the confluences of the rivers
Wabash, Shawanee, Tanisse, Ohio, Illinois, Missisipi & Missouri,
shall be called POLYPOTAMIA, and that to the Eastward farther up the
Ohio otherwise called the PELISIPI shall be called PELISIPIA.
That the preceding articles shall be formed into a charter of
Compact, shall be duly executed by the President of the U. S. in
Congress assembled under his hand and the seal of the United States,
shall be promulgated, and shall stand as fundamental constitutions
between the thirteen original States, & those now newly described
unalterable but by the joint consent of the U. S. in Congress
assembled and of the particular state within which such alteration is
proposed to be made.
_Observations on the Whale-Fishery_
Whale oil enters, as a raw material, into several branches of
manufacture, as of wool, leather, soap: it is used also in painting,
architecture and navigation. But its great consumption is in
lighting houses and cities. For this last purpose however it has a
powerful competitor in the vegetable oils. These do well in warm,
still weather, but they fix with cold, they extinguish easily with
the wind, their crop is precarious, depending on the seasons, and to
yield the same light, a larger wick must be used, and greater
quantity of oil consumed. Estimating all these articles of
difference together, those employed in lighting cities find their
account in giving about 25 per cent. more for whale than for
vegetable oils. But higher than this the whale oil, in its present
form, cannot rise; because it then becomes more advantageous to the
city-lighters to use others. This competition then limits its price,
higher than which no encouragement can raise it, and becomes, as it
were, a law of its nature, but, at this low price, the whale fishery
is the poorest business into which a merchant or sailor can enter.
If the sailor, instead of wages, has a part of what is taken, he
finds that this, one year with another, yields him less than he could
have got as wages in any other business. It is attended too with
great risk, singular hardships, and long absences from his family.
If the voyage is made solely at the expence of the merchant, he finds
that, one year with another, it does not reimburse him his expences.
As, for example, an English ship of 300 ton, and 42. hands brings
home, communibus annis, after a four months voyage, 25. ton of oil,
worth 437l. 10s. sterl. but the wages of the officers and seamen will
be 400l. The Outfit then and the merchant's profit must be paid by
the government. And it is accordingly on this idea that the British
bounty is calculated. From the poverty of this business then it has
happened that the nations, who have taken it up, have successively
abandoned it. The Basques began it. But, tho' the most economical
and enterprising of the inhabitants of France, they could not
continue it; and it is said they never employed more than 30. ships a
year. The Dutch and Hanse towns succeeded them. The latter gave it
up long ago tho' they have continued to lend their name to British
and Dutch oils. The English carried it on, in competition with the
Dutch, during the last, and beginning of the present century. But it
was too little profitable for them in comparison with other branches
of commerce open to them. In the mean time too the inhabitants of
the barren Island of Nantucket had taken up this fishery, invited to
it by the whales presenting themselves on their own shore. To them
therefore the English relinquished it, continuing to them, as British
subjects, the importation of their oils into England duty free, while
foreigners were subject to a duty of 18l. 5s. sterl. a ton. The
Dutch were enabled to continue it long, because, 1. They are so near
the northern fishing grounds, that a vessel begins her fishing very
soon after she is out of port. 2. They navigate with more economy
than the other nations of Europe. 3. Their seamen are content with
lower wages: and 4. their merchants with a lower profit on their
capital. Under all these favorable circumstances however, this
branch of business, after long languishing, is at length nearly
extinct with them. It is said they did not send above half a dozen
ships in pursuit of the whale this present year. The Nantuckois then
were the only people who exercised this fishery to any extent at the
commencement of the late war. Their country, from its barrenness,
yielding no subsistence, they were obliged to seek it in the sea
which surrounded them. Their economy was more rigorous than that of
the Dutch. Their seamen, instead of wages, had a share in what was
taken. This induced them to fish with fewer hands, so that each had
a greater dividend in the profit. It made them more vigilant in
seeking game, bolder in pursuing it, and parcimonious in all their
expences. London was their only market. When therefore, by the late
revolution, they became aliens in great Britain, they became subject
to the alien duty of 18l. 5s. the ton of oil, which being more than
equal to the price of the common whale oil, they were obliged to
abandon that fishery. So that this people, who before the war had
employed upwards of 300 vessels a year in the whale fishery, (while
great Britain had herself never employed one hundred) have now almost
ceased to exercise it. But they still had the seamen, the most
important material for this fishery; and they still retained the
spirit of fishing: so that at the reestablishment of peace they were
capable in a very short time of reviving their fishery in all its
splendor. The British government saw that the moment was critical.
They knew that their own share in that fishery was as nothing. That
the great mass of fishermen was left with a nation now separated from
them: that these fishermen however had lost their ancient market, had
no other resource within their country to which they could turn, and
they hoped therefore they might, in the present moment of distress,
be decoyed over to their establishments, and be added to the mass of
their seamen. To effect this they offered extravagant advantages to
all persons who should exercise the whale fishery from British
establishments. But not counting with much confidence on a long
connection with their remaining possessions on the continent of
America, foreseeing that the Nantuckois would settle in them
preferably, if put on an equal footing with those of great Britain,
and that thus they might have to purchase them a second time, they
confined their high offers to settlers in Great Britain. The
Nantuckois, left without resource by the loss of their market, began
to think of removing to the British dominions: some to Nova Scotia,
preferring smaller advantages, in the neighbourhood of their ancient
country and friends; others to great Britain postponing country and
friends to high premiums. A vessel was already arrived from Halifax
to Nantucket to take off some of those who proposed to remove; two
families had gone on board and others were going, when a letter was
received there, which had been written by Monsieur le Marquis de la
Fayette to a gentleman in Boston, and transmitted by him to
Nantucket. The purport of the letter was to dissuade their accepting
the British proposals, and to assure them that their friends in
France would endeavour to do something for them. This instantly
suspended their design: not another went on board, and the vessel
returned to Halifax with only the two families.
In fact the French Government had not been inattentive to the
views of the British, nor insensible of the crisis. They saw the
danger of permitting five or six thousand of the best seamen existing
to be transferred by a single stroke to the marine strength of their
enemy, and to carry over with them an art which they possessed almost
exclusively. The counterplan which they set on foot was to tempt the
Nantuckois by high offers to come and settle in France. This was in
the year 1785. The British however had in their favour a sameness of
language, religion, laws, habits and kindred. 9 families only, of 33
persons in the whole came to Dunkirk; so that this project was not
likely to prevent their emigration to the English establishments, if
nothing else had happened.
France had effectually aided in detaching the U. S. of America
from the _force_ of Great Britain. But as yet they seemed to have
indulged only a silent wish to detach them from her _commerce_. They
had done nothing to induce that event. In the same year 1785, while
M. de Calonne was in treaty, with the Nantuckois, an estimate of the
commerce of the U. S. was submitted to the count de Vergennes, and it
was shewn that, of 3. millions of pounds sterling to which their
exports amounted, one third might be brought to France and exchanged
against her productions and manufactures advantageously for both
nations, provided the obstacles of prohibition, monopoly, and duty
were either done away or moderated as far as circumstances would
admit. A committee, which had been appointed to investigate a
particular one of these subjects, was thereupon instructed to extend
its researches to the whole, and see what advantages and facilities
the Government could offer for the encouragement of a general
commerce with the United States. The Committee was composed of
persons well skilled in commerce; and, after labouring assiduously
for several months, they made their report: the result of which was
given in the letter of his Majesty's Comptroller General of the 2d of
Octob. 1786. wherein he stated the principles which should be
established for the future regulation of the commerce between France
and the United States. It was become tolerably evident, at the date
of this letter, that the terms offered to the Nantuckois would not
produce their emigration to Dunkirk; and that it would be safest in
every event to offer some other alternative which might prevent their
acceptance of the British offers. The obvious one was to open the
ports of France to their oils, so that they might still exercise
their fishery, remaining in their native country, and find a new
market for its produce instead of that which they had lost. The
article of Whale oil was accordingly distinguished, in the letter of
M. de Calonne, by an immediate abatement of duty, and promise of
further abatement after the year 1790. This letter was instantly
sent to America, and bid fair to produce there the effect intended,
by determining the fishermen to carry on their trade from their own
homes, with the advantage only of a free market in France, rather
than remove to Great Britain where a free market and great bounty
were offered them. An Arret was still to be prepared to give legal
sanction to the letter of M. de Calonne. M. Lambert, with a patience
and assiduity almost unexampled, went through all the investigations
necessary to assure himself that the conclusions of the Committee had
been just. Frequent conferences on this subject were held in his
presence; the Deputies of the Chambers of Commerce were heard, and
the result was the Arret of Dec. 29. 1787. confirming the abatements
of duty present and future, which the letter of Octob. 1786. had
promised, and reserving to his Majesty to grant still further favours
to that production, if on further information he should find it for
the interest of the two Nations.
The English had now begun to deluge the markets of France with
their whale oils: and they were enabled by the great premiums given
by their Government to undersell the French fisherman, aided by
feebler premiums, and the American aided by his poverty alone. Nor
is it certain that these speculations were not made at the risk of
the British Government, to suppress the French and American fishermen
in their only market. Some remedy seemed necessary. Perhaps it
would not have been a bad one to subject, by a general law, the
merchandize of every nation and of every nature to pay additional
duties in the ports of France exactly equal to the premiums and
drawbacks given on the same merchandise by their own government.
This might not only counteract the effect of premium in the instance
of whale oils, but attack the whole British system of bounties and
drawbacks by the aid of which they make London the center of commerce
for the whole earth. A less general remedy, but an effectual one,
was to prohibit the oils of all _European_ nations: the treaty with
England requiring only that she should be treated as well as the most
favoured _European_ nation. But the remedy adopted was to prohibit
all oils without exception.
To know how this remedy will operate we must consider the
quantity of whale oil which France consumes annually, the quantity
she obtains from her own fishery; and if she obtains less than she
consumes, we are to consider what will follow this prohibition.
The annual consumption of France, as stated by a person who has
good opportunities of knowing it, is as follows.
_pesant_. _quintaux_. _tons_.
Paris according to the
registers of 1786 . . . . 2,800,000 28,000 1750
27. other cities lighted by
M. Sangrain . . . . . . . 800,000 8,000 500
Rouen . . . . . . . . . . . 500,000 5,000 312 1/2
Bordeaux . . . . . . . . . 600,000 6,000 375
Lyon . . . . . . . . . . . 300,000 3,000 187 1/2
Other cities, leather and
light 3,000,000 30,000 1875
---------- ------ ------
8,000,000 80,000 5000
Other calculations, reduce the consumption to about half this.
It is treating these with sufficient respect to place them on an
equal footing with the estimate of the person before alluded to, and
to suppose the truth half way between them. We will call then the
present consumption of France only 60,000 quintals, or 3750 ton a
year. This consumption is increasing fast as the practice of
lighting cities is becoming more general, and the superior advantages
of lighting them with whale oil are but now beginning to be known.
What do the fisheries of France furnish? she has employed this
year 15. vessels in the Southern, and 2 in the Northern fishery,
carrying 4500 tons in the whole or 265 each on an average. The
English ships, led by Nantuckois as well as the French, have as I am
told never averaged, in the Southern fishery, more than one fifth of
their burthen, in the best year. The 15 ships of France, according
to this ground of calculation, and supposing the present to have been
one of the best years, should have brought, one with another, one
fifth of 265 tons, or 53 tons each. But we are told they have
brought near the double of that, to wit 100 tons each and 1500 tons
in the whole. Supposing the 2. Northern vessels to have brought home
the cargo which is common from the Northern fishery, to wit, 25 tons
each, the whole produce this year will then be 1550 tons. This is 5
1/2 months provision or two fifths of the annual consumption. To
furnish for the whole year, would require 40 ships of the same size,
in years as fortunate as the present, and 85 communibus annis, 44
tons, or one sixth of the burthen, being as high an average as should
be counted on, one year with another: and the number must be
increased with the increasing consumption. France then is evidently
not yet in a condition to supply her own wants. It is said indeed
she has a large stock on hand unsold occasioned by the English
competition. 33,000 quintals, including this year's produce, are
spoken of. This is between 6. and 7. months provision: and
supposing, by the time this is exhausted, that the next year's supply
comes in, that will enable her to go on 5. or 6. months longer; say a
twelvemonth in the whole. But, at the end of the twelvemonth, what
is to be done? The Manufactures depending on this article cannot
maintain their competition against those of other countries, if
deprived of their equal means. When the alternative then shall be
presented of letting them drop, or opening the ports to foreign whale
oil, it is presumable the latter will be adopted, as the lesser evil.
But it will be too late for America: her fishery, annihilated during
the late war, only began to raise its head on the prospect of market
held out by this country. Crushed by the Arret of Sept. 28. in its
first feeble effort to revive, it will rise no more. Expeditions,
which require the expence of the outfit of vessels, and from 9. to 12
months navigation, as the Southern fishery does, most frequented by
the Americans, cannot be undertaken in sole reliance on a market
which is opened and shut from one day to another, with little or no
warning. The English alone then will remain to furnish these
supplies, and they must be received even from them. We must accept
bread from our enemies, if our friends cannot furnish it. This comes
exactly to the point to which that government has been looking. She
fears no rival in the whale fishery but America. Or rather, it is
the whale fishery of America of which she is endeavouring to possess
herself. It is for this object she is making the present
extraordinary efforts by bounties and other encouragements: and her
success so far is very flattering. Before the war she had not 100
vessels in the whale trade, while America employed 309. In 1786.
Great Britain employed 151 vessels, in 1787. 286. in 1788. 314.
nearly the ancient American number; while the latter is fallen to
about 80. They have just changed places then, England having gained
exactly what America has lost. France by her ports and markets holds
the balance between the two contending parties, and gives the
victory, by opening and shutting them, to which she pleases. We have
still precious remains of seamen educated in this fishery, and
capable by their poverty, their boldness and address, of recovering
it from the English, in spite of their bounties. But this Arret
endangers the transferring to Great Britain every man of them who is
not invincibly attached to his native soil. There is no other nation
in present condition to maintain a competition with Great Britain in
the whale fishery. The expence at which it is supported on her part
seems enormous. 255 vessels, of 75,436 tons, employed by her this
year in the Northern fishery, at 42 men each; and 59. in the Southern
at 18 men each makes 11,772 men. These are known to have cost the
government 15l. each, or 176,580l. in the whole, and that to employ
the principal part of them from 3. to 4. months only. The Northern
ships have brought home 20. and the Southern 60. tons of oil on an
average, making 8,640 tons, every ton of oil then has cost the
government 20l. in bounty. Still, if they can beat us out of the
field and have it to themselves, they will think their money well
employed. If France undertakes solely the competition against them,
she must do it at equal expence. The trade is too poor to support
itself. The 85 ships necessary to supply even her present
consumption, bountied as the English are, will require a sacrifice of
1,285,200 livres a year, to maintain 3,570 seamen, and that a part of
the year only. And if she will push it to 12,000 men in competition
with England, she must sacrifice, as they do, 4. or 5. millions a
year. The same number of men might, with the same bounty, be kept in
as constant employ carrying stone from Bayonne to Cherburg, or coal
from Newcastle to Havre, in which navigations they would be always at
hand, and become as good seamen. The English consider among their
best sailors those employed in carrying coal from Newcastle to
London. France cannot expect to raise her fishery, even to the
supply of her own consumption, in one year or in several years. Is
it not better then, by keeping her ports open to the U. S. to enable
them to aid in maintaining the field against the common adversary,
till she shall be in condition to take it herself, and to supply her
own wants? Otherwise her supplies must aliment that very force which
is keeping her under. On our part, we can never be dangerous
competitors to France. The extent to which we can exercise this
fishery is limited to that of the barren island of Nantucket, and a
few similar barren spots; its duration to the pleasure of this
government, as we have no other market.
A material observation must be added here. Sudden vicissitudes
of opening and shutting ports, do little injury to merchants settled
on the opposite coast, watching for the opening, like the return of a
tide, and ready to enter with it. But they ruin the adventurer whose
distance requires 6 months notice. Those who are now arriving from
America, in consequence of the Arret of Dec. 29. will consider it as
the false light which has led them to their ruin. They will be apt
to say that they come to the ports of France by invitation of that
Arret, that the subsequent one of Sept. 28. which drives them from
those ports, founds itself on a single principle, viz. `that the
prohibition of foreign oils is the most useful encouragement which
can be given to that branch of industry.' They will say that, if this
be a true principle, it was as true on the 29th. of Dec. 1787. as on
the 28th. of Sept. 1788. It was then weighed against other motives,
judged weaker, and over-ruled, and it is hard it should be now
revived to ruin them.
The Refinery for whale oil lately established at Rouen, seems
to be an object worthy of national attention. In order to judge of
its importance, the different qualities of whale oil must be noted.
Three qualities are known in the American and English markets. 1.
That of the Spermaceti whale. 2. Of the Groenland whale. 3. Of the
Brazil whale. 1. The Spermaceti whale found by the Nantucketmen in
the neighbourhood of the western Islands, to which they had gone in
pursuit of other whales, retired thence to the coast of Guinea,
afterwards to that of Brazil, and begins now to be best found in the
latitude of the cape of good hope, and even of cape Horn. He is an
active, fierce animal and requires vast address and boldness in the
fisherman. The inhabitants of Brazil make little expeditions from
their coast, and take some of these fish. But the Americans are the
only distant people who have been in the habit of seeking and
attacking them in numbers. The British however, led by the
Nantuckois whom they have decoyed into their service, have begun this
fishery. In 1785 they had 18 ships in it; in 1787, 38: in 1788, 54.
or as some say 64. I have calculated on the middle number 59. Still
they take but a very small proportion of their own demand. We
furnish the rest. Theirs is the only market to which we carry that
oil, because it is the only one where its properties are known. It
is luminous, resists coagulation by cold to the 41st. degree of
Farenheit's thermometer, and 4th. of Reaumur's, and yields no smell
at all. It is used therefore within doors to lighten shops, and even
in the richest houses for antichambers, stairs, galleries, &c. it
sells at the London market for treble the price of common whale oil.
This enables the adventurer to pay the duty of 18l. 5s. sterl. the
ton, and still to have a living profit. Besides the mass of oil
produced from the whole body of the whale, his head yields 3. or 4.
barrels of what is called head-matter, from which is made the solid
Spermaceti used for medicine and candles. This sells by the pound at
double the price of the oil. The disadvantage of this fishery is
that the sailors are from 9. to 12. months absent on the voyage, of
course they are not at hand on any sudden emergency, and are even
liable to be taken before they know that a war is begun. It must be
added on the subject of this whale, that he is rare, and shy, soon
abandoning the grounds where he is hunted. This fishery being less
losing than the other, and often profitable, will occasion it to be
so thronged soon, as to bring it on a level with the other. It will
then require the same expensive support, or to be abandoned.
2. The Groenland whale oil is next in quality. It resists
coagulation by cold to 36 degrees of Farenheit and 2 degrees of
Reaumur; but it has a smell insupportable within doors, and is not
luminous. It sells therefore in London at about 16l. the ton. This
whale is clumsy and timid, he dives when struck, and comes up to
breathe by the first cake of ice, where the fishermen need little
address or courage to find and take him. This is the fishery mostly
frequented by European nations; it is this fish which yields the fin
in quantity, and the voyages last about 3. or 4. months.
3. The third quality is that of the small Brazil whale. He was
originally found on the coast of Nantucket, and first led that people
to this pursuit. He retired first to the banks of Newfoundland, then
to the western islands; and is now found within soundings on the
coast of Brazil, during the months of December, January, February and
March. This oil chills at 50 degrees of Farenheit and 8 degrees of
Reaumur, is black and offensive, worth therefore but 13l. the ton in
London. In warm summer nights however it burns better than the
Groenland oil.
The qualities of the oils thus described, it is to be added
that an individual has discovered methods 1. of converting a great
part of the oil of the spermaceti whale into the solid substance
called spermaceti, heretofore produced from his head alone. 2. Of
refining the Groenland whale oil, so as to take from it all smell and
render it limpid and luminous, as that of the spermaceti whale. 3.
of curdling the oil of the Brazil whale into tallow, resembling that
of the beef, and answering all its purposes. This person is engaged
by the company which has established the Refinery at Rouen: their
works will cost them half a million of livres, will be able to refine
all the oil which can be used in the kingdom, and even to supply
foreign markets. -- The effect of this refinery then would be 1. to
supplant the solid spermaceti of all other nations by theirs of equal
quality and lower price. 2. to substitute, instead of spermaceti
oil, their black whale oil, refined, of equal quality and lower
price. 3. to render the worthless oil of the Brazil whale equal in
value to tallow: and 4. by accomodating these oils to uses, to which
they could never otherwise have been applied, they will extend the
demand beyond its present narrow limits to any supply which can be
furnished, and thus give the most effectual encouragement and
extension to the whale fishery. But these works were calculated on
the Arret of Dec. 29. which admitted here freely and fully the
produce of the American fishery. If confined to that of the French
fishery alone, the enterprise may fail for want of matter to work on.
After this review of the whale fishery as a Political
institution, a few considerations shall be added on its produce as a
basis of Commercial exchange between France and the United-States.
The discussions it has undergone on former occasions, in this point
of view, leaves little new to be now urged.
The United-States not possessing mines of the precious metals,
they can purchase necessaries from other nations so far only as their
produce is received in exchange. Without enumerating our smaller
articles, we have three of principal importance, proper for the
French market, to wit, Tobacco, whale oil, and rice. The first and
most important is Tobacco. This might furnish an exchange for 8.
millions of the productions of this country: but it is under a
monopoly, and that not of a mercantile, but a financiering company,
whose interest is to pay in money, and not in merchandise; and who
are so much governed by the spirit of simplifying their purchases and
proceedings, that they find means to elude every endeavour on the
part of government to make them diffuse their purchases among the
merchants in general. Little profit is derived from this then as an
article of exchange for the produce and manufactures of France.
Whale oil might be next in importance; but that is now prohibited.
American Rice is not yet of great, but it is of growing consumption
in France, and being the only article of the three which is free, it
may become a principal basis of exchange. Time and trial may add a
fourth, that is, timber. But some essays, rendered unsuccessful by
unfortunate circumstances, place that at present under a discredit,
which it will be found hereafter not to have merited. The English
know its value, and were supplied with it before the war. A spirit
of hostility, since that event, led them to seek Russian rather than
American supplies. A new spirit of hostility has driven them back
from Russia, and they are now making contracts for American timber.
But of the three articles before mentioned, proved by experience to
be suitable for the French market, one is prohibited, one under
monopoly, and one alone free, and that the smallest and of very
limited consumption. The way to encourage purchasers is to multiply
their means of payment. Whale oil might be an important one. In one
scale is the interest of the millions who are lighted, shod or
clothed with the help of it, and the thousands of labourers and
manufacturers who would be employed in producing the articles which
might be given in exchange for it, if received from America. In the
other scale are the interests of the adventurers in the whale
fishery; each of whom indeed, politically considered may be of more
importance to the state than a simple labourer or manufacturer: but
to make the estimate with the accuracy it merits, we should multiply
the numbers in each scale into their individual importance, and see
which preponderates.
Both governments have seen with concern that their commercial
intercourse does not grow as rapidly as they would wish. The system
of the United States is to use neither prohibitions nor premiums.
Commerce there regulates itself freely, and asks nothing better.
Where a government finds itself under the necessity of undertaking
that regulation, it would seem that it should conduct it as an
intelligent merchant would: that is to say, invite customers to
purchase, by facilitating their means of payment, and by adapting
goods to their taste. If this idea be just, government here has two
operations to attend to, with respect to the commerce of the United
States. 1. To do away, or to moderate, as much as possible, the
prohibitions and monopolies of their materials for payment. 2. To
encourage the institution of the principal manufactures which the
necessities, or the habits of their new customers call for. Under
this latter head a hint shall be suggested which must find its
apology in the motive from which it flows, that is, a desire of
promoting mutual interests and close friendship. 600,000 of the
labouring poor of America, comprehending slaves under that
denomination, are clothed in three of the simplest manufactures
possible, to wit, Oznabrigs, Plains, and Duffel blankets. The first
is a linen, the two last woollens. It happens too that they are used
exactly by those who cultivate the tobacco and rice and in a good
degree by those employed in the whale fishery. To these manufactures
they are so habituated, that no substitute will be received. If the
vessels which bring tobacco, rice and whale oil, do not find them in
the ports of delivery, they must be sought where they can be found.
That is in England at present. If they were made in France they
would be gladly taken in exchange there. The quantities annually
used by this description of people, and their value are as follows.
Oznabrigs 2,700,000 aunes a 16. sous the aune
worth . . . . . . . . . . . . . . . . . . . . 2,160,000l.
Plains 1,350,000 aunes a 2. livres the aune . . 2,700,000
Duffel blankets 300,000 a 7livres. 4sous. each . 2,160,000
---------
7,020,000
It would be difficult to say how much should be added for the
consumption of inhabitants of other descriptions. A great deal
surely. But the present view shall be confined to the one
description named. 7 millions of livres, are 9 millions of days work
of those who raise card, spin and weave the wool and flax; and at 300
working days to the year, would maintain 30,000 people. To introduce
these simple manufactures suppose government to give 5 per cent. on
the value of what should be exported of them, for 10. years to come.
If none should be exported, nothing would be to be paid; but on the
other hand, if the manufactures, with this encouragement should rise
to the full demand, it will be a sacrifice of 351,000livres. a year
for 10. years only, to produce a perpetual subsistence for more than
30,000 people, (for the demand will grow with our population) while
she must expend perpetually 1,285,000livres. a year to maintain the
3,570 seamen, who would supply her with whale oil: that is to say,
for each seaman as much as for 30. labourers and manufacturers.
But to return to our subject, and to conclude.
Whether then we consider the Arret of Sept. 28. in a political
or a commercial light, it would seem that the U. S. should be
excepted from its operation. Still more so when they invoke against
it the amity subsisting between the two nations, the desire of
binding them together by every possible interest and connection, the
several acts in favour of this exception, the dignity of legislation
which admits not of changes backwards and forwards, the interests of
commerce which require steady regulations, the assurances of the
friendly motives which have led the king to pass these acts, and the
hope that no cause will arise to change either his motives or his
measures towards us.
_Plan for Establishing Uniformity in the Coinage, Weights, and
Measures of the United States_
COMMUNICATED TO THE HOUSE OF REPRESENTATIVES
JULY 13, 1790
New York, July 4, 1790
Sir: -- In obedience to the order of the House of
Representatives of January 15th, I have now the honor to enclose you
a report on the subject of measures, weights, and coins. The length
of time which intervened between the date of the order and my arrival
in this city, prevented my receiving it till the 15th of April; and
an illness which followed soon after added, unavoidably, some weeks
to the delay; so that it was not till about the 20th May that I was
able to finish the report. A desire to lessen the number of its
imperfections induced me still to withhold it awhile, till, on the
15th of June, came to my hands, from Paris, a printed copy of a
proposition made by the Bishop of Autun, to the National Assembly of
France, on the subject of weights and measures; and three days
afterwards I received, through the channel of the public papers, the
speech of Sir John Riggs Miller, of April 13th, in the British House
of Commons, on the same subject. In the report which I had prepared,
and was then about to give in, I had proposed the latitude of 38
degrees, as that which should fix our standard, because it was the
medium latitude of the United States; but the proposition before the
National Assembly of France, to take that of 45 degrees as being a
middle term between the equator and both poles, and a term which
consequently might unite the nations of both hemispheres, appeared to
me so well chosen, and so just, that I did not hesitate a moment to
prefer it to that of 38 degrees. It became necessary, of course, to
conform all my calculations to that standard -- an operation which
has been retarded by my other occupations.
These circumstances will, I hope, apologize for the delay which
has attended the execution of the order of the House; and, perhaps, a
disposition on their part to have due regard for the proceedings of
other nations, engaged on the same subject, may induce them still to
defer deciding ultimately on it till their next session. Should this
be the case, and should any new matter occur in the meantime, I shall
think it my duty to communicate it to the House, as supplemental to
the present report.
I have the honor to be, with sentiments of the most profound
respect,
Sir, your most obedient and most humble servant.
The Secretary of State, to whom was referred, by the House of
Representatives, to prepare and report a proper plan or plans for
establishing uniformity in the currency, weights, and measures of the
United States, in obedience thereto, makes the following report: --
To obtain uniformity in measures, weights, and coins, it is
necessary to find some measure of invariable length, with which, as a
standard, they may be compared.
There exists not in nature, as far as has been hitherto
observed, a single subject or species of subject, accessible to man,
which presents one constant and uniform dimension.
The globe of the earth itself, indeed, might be considered as
invariable in all its dimensions, and that its circumference would
furnish an invariable measure; but no one of its circles, great or
small, is accessible to admeasurement through all its parts, and the
various trials to measure definite portions of them, have been of
such various result as to show there is no dependence on that
operation for certainty.
Matter, then, by its mere extension, furnishing nothing
invariable, its motion is the only remaining resource.
The motion of the earth round its axis, though not absolutely
uniform and invariable, may be considered as such for every human
purpose. It is measured obviously, but unequally, by the departure
of a given meridian from the sun, and its return to it, constituting
a solar day. Throwing together the inequalities of solar days, a
mean interval, or day, has been found, and divided, by very general
consent, into 86,400 equal parts.
A pendulum, vibrating freely, in small and equal arcs, may be
so adjusted in its length, as, by its vibrations, to make this
division of the earth's motion into 86,400 equal parts, called
seconds of mean time.
Such a pendulum, then, becomes itself a measure of determinate
length, to which all others may be referred to as to a standard.
But even a pendulum is not without its uncertainties.
1. The difficulty of ascertaining, in practice, its centre of
oscillation, as depending on the form of the bob, and its distance
from the point of suspension; the effect of the weight of the
suspending wire towards displacing the centre of oscillation; that
centre being seated within the body of the bob, and therefore
inaccessible to the measure, are sources of considerable uncertainty.
2. Both theory and experience prove that, to preserve its
isochronism, it must be shorter towards the equator, and longer
towards the poles.
3. The height of the situation above the common level, as being
an increment to the radius of the earth, diminishes the length of the
pendulum.
4. The pendulum being made of metal, as is best, it varies its
length with the variations in the temperature of the atmosphere.
5. To continue small and equal vibrations, through a sufficient
length of time, and to count these vibrations, machinery and a power
are necessary, which may exert a small but constant effort to renew
the waste of motion; and the difficulty is so to apply these, as that
they shall neither retard or accelerate the vibrations.
1. In order to avoid the uncertainties which respect the centre
of oscillation, it has been proposed by Mr. Leslie, an ingenious
artist of Philadelphia, to substitute, for the pendulum, a uniform
cylindrical rod, without a bob.
Could the diameter of such a rod be infinitely small, the
centre of oscillation would be exactly at two-thirds of the whole
length, measured from the point of suspension. Giving it a diameter
which shall render it sufficiently inflexible, the centre will be
displaced, indeed; but, in a second rod not the (1) six hundred
thousandth part of its length, and not the hundredth part as much as
in a second pendulum with a spherical bob of proper diameter. This
displacement is so infinitely minute, then, that we may consider the
centre of oscillation, for all practical purposes, as residing at
two-thirds of the length from the centre of suspension. The distance
between these two centres might be easily and accurately ascertained
in practice. But the whole rod is better for a standard than any
portion of it, because sensibly defined at both its extremities.
2. The uncertainty arising from the difference of length
requisite for the second pendulum, or the second rod, in different
latitudes, may be avoided by fixing on some one latitude, to which
our standard shall refer. That of 38 degrees as being the middle
latitude of the United States, might seem the most convenient, were
we to consider ourselves alone; but connected with other nations by
commerce and science, it is better to fix on that parallel which bids
fairest to be adopted by them also. The 45th, as being the middle
term between the equator and pole, has been heretofore proposed in
Europe, and the proposition has been lately renewed there under
circumstances which may very possibly give it some effect. This
parallel is distinguished with us also as forming our principal
northern boundary. Let the completion of the 45th degree, then, give
the standard for our union, with the hope that it may become a line
of union with the rest of the world.
The difference between the second rod for 45 degrees of
latitude, and that for 31 degrees, our other extreme, is to be
examined.
The second _pendulum_ for 45 degrees of latitude, according to
Sir Isaac Newton's computation, must be of (2) 39.14912 inches
English measure; and a _rod_, to vibrate in the same time, must be of
the same length between the centres of suspension and oscillation;
and, consequently, its whole length 58.7 (or, more exactly, 58.72368)
inches. This is longer than the rod which shall vibrate seconds in
the 31 degrees of latitude, by about 1/679 part of its whole length;
a difference so minute, that it might be neglected, as insensible,
for the common purposes of life, but, in cases requiring perfect
exactness, the second rod, found by trial of its vibrations in any
part of the United States, may be corrected by computation for the
(3) latitude of the place, and so brought exactly to the standard of
45 degrees.
3. By making the experiment in the level of the ocean, the
difference will be avoided, which a higher position might occasion.
4. The expansion and contraction of the rod with the change of
temperature, is the fourth source of uncertainty before mentioned.
According to the high authority so often quoted, an iron rod, of
given length, may vary, between summer and winter, in temperate
latitudes, and in the common exposure of house clocks, from 1/1728 to
1/2592 of its whole length, which, in a rod of 58.7 inches, will be
from about two to three hundredths of an inch. This may be avoided
by adjusting and preserving the standard in a cellar, or other place,
the temperature of which never varies. Iron is named for this
purpose, because the least expansible of the metals.
5. The practical difficulty resulting from the effect of the
machinery and moving power is very inconsiderable in the present
state of the arts; and, in their progress towards perfection, will
become less and less. To estimate and obviate this, will be the
artist's province. It is as nothing when compared with the sources
of inaccuracy hitherto attending measures.
Before quitting the subject of the inconveniences, some of
which attend the pendulum alone, others both the pendulum and rod, it
must be added that the rod would have an accidental but very precious
advantage over the pendulum in this country, in the event of our
fixing the foot at the nearest aliquot part of either; for the
difference between the common foot, and those so to be deduced, would
be three times greater in the case of the pendulum than in that of
the rod.
Let the standard of measure, then, be a uniform cylindrical rod
of iron, of such length as, in latitude, in the level of the ocean,
and in a cellar, or other place, the temperature of which does not
vary through the year, shall perform its vibrations in small and
equal arcs, in one second of mean time.
A standard of invariable length being thus obtained, we may
proceed to identify, by that, the measures, weights and coins of the
United States; but here a doubt presents itself as to the extent of
the reformation meditated by the House of Representatives. The
experiment made by Congress in the year one thousand seven hundred
and eighty-six, by declaring that there should be one money of
account and payment through the United States, and that its parts and
multiples should be in a decimal ratio, has obtained such general
approbation, both at home and abroad, that nothing seems wanting but
the actual coinage, to banish the discordant pounds, shillings,
pence, and farthings of the different States, and to establish in
their stead the new denominations. Is it in contemplation with the
House of Representatives to extend a like improvement to our measures
and weights, and to arrange them also in a decimal ratio? The
facility which this would introduce into the vulgar arithmetic would,
unquestionably, be soon and sensibly felt by the whole mass of the
people, who would thereby be enabled to compute for themselves
whatever they should have occasion to buy, to sell, or to measure,
which the present complicated and difficult ratios place beyond their
computation for the most part. Or, is it the opinion of the
Representatives that the difficulty of changing the established
habits of a whole nation opposes an insuperable bar to this
improvement? Under this uncertainty, the Secretary of State thinks
it his duty to submit alternative plans, that the House may, at their
will, adopt either the one or the other, exclusively, or the one for
the present and the other for a future time, when the public mind may
be supposed to have become familiarized to it.
I. And first, on the supposition that the present measures and
weights are to be retained but to be rendered uniform and invariable,
by bringing them to the same invariable standard.
The first settlers of these States, having come chiefly from
England, brought with them the measures and weights of that country.
These alone are generally established among us, either by law or
usage; and these, therefore, are alone to be retained and fixed. We
must resort to that country for information of what they are, or
ought to be.
This rests, principally, on the evidence of certain standard
measures and weights, which have been preserved, of long time, in
different deposits. But differences among these having been known to
exist, the House of Commons, in the years 1757 and 1758, appointed
committees to inquire into the original standards of their weights
and measures. These committees, assisted by able mathematicians and
artists, examined and compared with each other the several standard
measures and weights, and made reports on them in the years 1758 and
1759. The circumstances under which these reports were made entitle
them to be considered, as far as they go, as the best written
testimony existing of the standard measures and weights of England;
and as such, they will be relied on in the progress of this report.
MEASURES OF LENGTH.
The measures of length in use among us are:
The league of 3 miles, The fathom of 2 yards,
The mile of 8 furlongs, The ell of a yard and
The furlong of 40 poles or quarter,
perches, The yard of 3 feet,
The pole or perch of 5 1/2 The foot of 12 inches, and
yards, The inch of 10 lines.
On this branch of their subject, the committee of 1757 - 1758,
says that the standard measures of length at the receipt of the
exchequer, are a yard, supposed to be of the time of Henry VII., and
a yard and ell supposed to have been made about the year 1601; that
they are brass rods, very coarsely made, their divisions not exact,
and the rods bent; and that in the year 1742, some members of the
Royal Society had been at great pains in taking an exact measure of
these standards, by very curious instruments, prepared by the
ingenious Mr. Graham; that the Royal Society had had a brass rod made
pursuant to their experiments, which was made so accurately, and by
persons so skilful and exact, that it was thought not easy to obtain
a more exact one; and the committee, in fact, found it to agree with
the standards at the exchequer, as near as it was possible. They
furnish no means, to persons at a distance, of knowing what this
standard is. This, however, is supplied by the evidence of the
second pendulum, which, according to the authority before quoted, is,
at London, 39.1682 English inches, and, consequently, the second rod
there is of 58.7523 of the same inches. When we shall have found,
then, by actual trial, the second rod for 45 degrees by adding the
difference of their computed length, to wit: 287/10000 of an inch, or
rather 3/10 of a line (which in practice will endanger less error
than an attempt at so minute a fraction as the ten thousandth parts
of an inch) we shall have the second rod of London, or a true measure
of 58 3/4 English inches. Or, to shorten the operation, without
varying the result,
Let the standard rod of 45 degrees be divided into 587 1/5
equal parts, and let each of these parts be declared a line.
10 lines an inch, 5 1/2 yards a perch or pole,
12 inches a foot, 40 poles or perches a furlong,
3 feet a yard, 8 furlongs a mile,
3 feet 9 inches an ell, 3 miles a league.
6 feet a fathom,
SUPERFICIAL MEASURES.
Our measures of surface are, the acre of 4 roods and the rood
of 40 square poles; so established by a statute of 33 Edw. I. Let
them remain the same.
MEASURES OF CAPACITY.
The measures of capacity in use among us are the following
names and proportions:
The gill, four of which make a pint.
Two pints make a quart.
Two quarts a pottle.
Two pottles a gallon.
Two gallons a peck, dry measure.
Eight gallons make a measure called a firkin, in liquid
substances, and a bushel, dry.
Two firkins, or bushels, make a measure called a rundlet or
kilderkin, liquid, and a strike, dry.
Two kilderkins, or strikes, make a measure called a barrel,
liquid, and a coomb, dry; this last term being ancient and little
used.
Two barrels, or coombs, make a measure called a hogshead,
liquid, or a quarter, dry; each being the quarter of a ton.
A hogshead and a third make a tierce, or third of a ton.
Two hogsheads make a pipe, butt, or puncheon; and
Two pipes make a ton.
But no one of these measures is of a determinate capacity. The
report of the committee of 1757 - 8, shows that the gallon is of very
various content; and that being the unit, all the others must vary
with it.
The gallon and bushel contain --
224 and 1792 cubic inches, according to the standard wine
gallon preserved at Guildhall.
231 and 1848, according to the statute of 5th of Anne.
264.8 and 2118.4, according to the ancient Rumford quart, of
1228, examined by the committee.
265.5 and 2124, according to three standard bushels preserved
in the Exchequer, to wit: one of Henry VII., without a rim; one dated
1091, supposed for 1591, or 1601, and one dated 1601.
266.25 and 2130, according to the ancient Rumford gallon of
1228, examined by the committee.
268.75 and 2150, according to the Winchester bushel, as
declared by statute 13, 14, William III., which has been the model
for some of the grain States.
271, less 2 spoonfuls, and 2168, less 16 spoonfuls, according
to a standard gallon of Henry VII., and another dated 1601, marked E.
E., both in the Exchequer.
271 and 2168, according to a standard gallon in the Exchequer,
dated 1601, marked E., and called the corn gallon.
272 and 2176, according to the three standard corn gallons last
mentioned, as measured in 1688, by an artist for the Commissioners of
the Excise, generally used in the seaport towns, and by mercantile
people, and thence introduced into some of the grain States.
277.18 and 2217.44, as established for the measure of coal by
the statute 12 Anne.
278 and 2224, according to the standard bushel of Henry VII.,
with a copper rim, in the Exchequer.
278.4 and 2227.2 according to two standard pints of 1601 and
1602, in the Exchequer.
280 and 2240, according to the standard quart of 1601, in the
Exchequer.
282 and 2256, according to the standard gallon for beer and ale
in the Treasury.
There are, moreover, varieties on these varieties, from the
barrel to the ton, inclusive; for, if the barrel be of herrings, it
must contain 28 gallons by the statute 13 Eliz. c. 11. If of wine,
it must contain 31 1/2 gallons by the statute 2 Henry VI. c. 11, and
1 Rich. III. c. 15. If of beer or ale, it must contain 34 gallons by
the statute 1 William and Mary, c. 24, and the higher measures in
proportion.
In those of the United States which have not adopted the
statutes of William and Mary, and of Anne before cited, nor their
substance, the wine gallon of 231 cubic inches rests on the authority
of very long usage, before the 5th of Anne, the origin and foundation
of which are unknown; the bushel is the Winchester bushel, by the 11
Henry VII. undefined; and the barrel of ale 32 gallons, and of beer
36 gallons, by the statute 23 Henry VIII. c. 4.
The Secretary of State is not informed whether there have been
any, and what, alterations of these measures by the laws of the
particular States.
It is proposed to retain this series of measures, but to fix
the gallon to one determinate capacity, as the unit of measure, both
wet and dry; for convenience is in favor of abolishing the
distinction between wet and dry measures.
The wine gallon, whether of 224 or 231 cubic inches, may be
altogether disregarded, as concerning, principally, the mercantile
and the wealthy, the least numerous part of the society, and the most
capable of reducing one measure to another by calculation. This
gallon is little used among the mass of farmers, whose chief habits
and interests are in the size of the corn bushel.
Of the standard measures before stated, two are principally
distinguished in authority and practice. The statute bushel of 2150
cubic inches, which gives a gallon of 268.75 cubic inches, and the
standard gallon of 1601, called the corn gallon of 271 or 272 cubic
inches, which has introduced the mercantile bushel of 2276 inches.
The former of these is most used in some of the grain States, the
latter in others. The middle term of 270 cubic inches may be taken
as a mutual compromise of convenience, and as offering this general
advantage: that the bushel being of 2160 cubic inches, is exactly a
cubic foot and a quarter, and so facilitates the conversion of wet
and dry measures into solid contents and tonnage, and simplifies the
connection of measures and weights, as will be shown hereafter. It
may be added, in favor of this, as a medium measure, that eight of
the standard, or statute measures before enumerated, are below this
term, and nine above it.
The measures to be made for use, being four sided, with
rectangular sides and bottom.
The pint will be 3 inches square, and 3 3/4 inches deep;
The quart 3 inches square, and 7 1/2 inches deep;
The pottle 3 inches square, and 15 inches deep, or 4 1/2, 5,
and 6 inches.
The gallon 6 inches square, and 7 1/2 inches deep, or 5, 6, and
9 inches;
The peck 6, 9, and 10 inches;
The half bushel 12 inches square, and 7 1/2 inches deep; and
The bushel 12 inches square, and 15 inches deep, or 9, 15, and
16 inches.
Cylindrical measures have the advantage of superior strength,
but square ones have the greater advantage of enabling every one who
has a rule in his pocket, to verify their contents by measuring them.
Moreover, till the circle can be squared, the cylinder cannot be
cubed, nor its contents exactly expressed in figures.
Let the measures of capacity, then, for the United States be ---
A gallon of 270 cubic inches;
The gallon to contain 2 pottles;
The pottle 2 quarts;
The quart 2 pints;
The pint 4 gills;
Two gallons to make a peck;
Eight gallons a bushel or firkin;
Two bushels, or firkin, a strike or kilderkin;
Two strikes, or kilderkins, a coomb or barrel;
Two coombs, or barrels, a quarter or hogshead;
A hogshead and a third one tierce;
Two hogsheads a pipe, butt, or puncheon; and
Two pipes a ton.
And let all measures of capacity of dry subjects be stricken
with a straight strike.
WEIGHTS.
There are two series of weights in use among us; the one called
avoirdupois, the other troy.
_In the Avoirdupois series:_
The pound is divided into 16 ounces;
The ounce into 16 drachms;
The drachm into 4 quarters.
_In the Troy series:_
The pound is divided into 12 ounces;
The ounce (according to the subdivision of the apothecaries)
into 8 drachms;
The drachm into 3 scruples;
The scruple into 20 grains.
According to the subdivision for gold and silver, the ounce is
divided into twenty pennyweights, and the pennyweight into
twenty-four grains.
So that the pound troy contains 5760 grains, of which 7000 are
requisite to make the pound avoirdupois; of course the weight of the
pound troy is to that of the pound avoirdupois as 5760 to 7000, or as
144 to 175.
It is remarkable that this is exactly the proportion of the
ancient liquid gallon of Guildhall of 224 cubic inches, to the corn
gallon of 272; for 224 are to 272 as 144 to 175. (4.)
It is further remarkable still, that this is also the exact
proportion between the specific weight of any measure of wheat, and
of the same measure of water: for the statute bushel is of 64 pounds
of wheat. Now as 144 to 175, so are 64 pounds to 77.7 pounds; but
77.7 pounds is known to be the weight of (5.) 2150.4 cubic inches of
pure water, which is exactly the content of the Winchester bushel, as
declared by the statute 13, 14, Will. 3. That statute determined the
bushel to be a cylinder of 18 1/2 inches diameter, and 8 inches
depth. Such a cylinder, as nearly as it can be cubed, and expressed
in figures, contains 2150.425 cubic inches; a result which reflects
authority on the declaration of Parliament, and induces a favorable
opinion of the care with which they investigated the contents of the
ancient bushel, and also a belief that there might exist evidence of
it at that day, unknown to the committees of 1758 and 1759.
We find, then, in a continued proportion 64 to 77.7 as 224 to
272, and as 144 to 175, that is to say, the specific weight of a
measure of wheat, to that of the same measure of water, as the cubic
contents of the wet gallon, to those of the dry; and as the weight of
a pound troy to that of a pound avoirdupois.
This seems to have been so combined as to render it indifferent
whether a thing were dealt out by weight or measure; for the dry
gallon of wheat, and the liquid one of wine, were of the same weight;
and the avoirdupois pound of wheat, and the troy pound of wine, were
of the same measure. Water and the vinous liquors, which enter most
into commerce, are so nearly of a weight, that the difference, in
moderate quantities, would be neglected by both buyer and seller;
some of the wines being a little heavier, and some a little lighter,
than water.
Another remarkable correspondence is that between weights and
measures. For 1000 ounces avoirdupois of pure water fill a cubic
foot, with mathematical exactness.
What circumstances of the times, or purposes of barter or
commerce, called for this combination of weights and measures, with
the subjects to be exchanged or purchased, are not now to be
ascertained. But a triple set of exact proportionals representing
weights, measures, and the things to be weighed and measured, and a
relation so integral between weights and solid measures, must have
been the result of design and scientific calculation, and not a mere
coincidence of hazard. It proves that the dry and wet measures, the
heavy and light weights, must have been original parts of the system
they compose -- contrary to the opinion of the committee of 1757,
1758, who thought that the avoirdupois weight was not an ancient
weight of the kingdom, nor ever even a legal weight, but during a
single year of the reign of Henry VIII.; and, therefore, concluded,
otherwise than will be here proposed, to suppress it altogether.
Their opinion was founded chiefly on the silence of the laws as to
this weight. But the harmony here developed in the system of weights
and measures, of which the avoirdupois makes an essential member,
corroborated by a general use, from very high antiquity, of that, or
of a nearly similar weight under another (6.) name, seem stronger
proofs that this is legal weight, than the mere silence of the
written laws is of the contrary.
Be this as it may, it is in such general use with us, that, on
the principle of popular convenience, its higher denominations, at
least, must be preserved. It is by the avoirdupois pound and ounce
that our citizens have been used to buy and sell. But the smaller
subdivisions of drachms and quarters are not in use with them. On
the other hand, they have been used to weigh their money and medicine
with the pennyweights and grains troy weight, and are not in the
habit of using the pounds and ounces of that series. It would be for
their convenience, then, to suppress the pound and ounce troy, and
the drachm and quarter avoirdupois; and to form into one series the
avoirdupois pound and ounce, and the troy pennyweight and grain. The
avoirdupois ounce contains 18 pennyweights 5 1/2 grains troy weight.
Divide it, then, into 18 pennyweights, and the pennyweight, as
heretofore, into 24 grains, and the new pennyweight will contain
between a third and a quarter of a grain more than the present troy
penny-weight; or, more accurately, it will be to that as 875 to 864
-- a difference not to be noticed, either in money or medicine, below
the denomination of an ounce.
But it will be necessary to refer these weights to a
determinate mass of some substance, the specific gravity of which is
invariable. Rain water is such a substance, and may be referred to
everywhere, and through all time. It has been found by accurate
experiments that a cubic foot of rain water weighs 1000 ounces
avoirdupois, standard weights of the exchequer. It is true that
among these standard weights the committee report small variations;
but this experiment must decide in favor of those particular weights,
between which, and an integral mass of water, so remarkable a
coincidence has been found. To render this standard more exact, the
water should be weighed always in the same temperature of air; as
heat, by increasing its volume, lessens its specific gravity. The
cellar of uniform temperature is best for this also.
Let it, then, be established that an ounce is of the weight of
a cube of rain water, of one-tenth of a foot; or, rather, that it is
the thousandth part of the weight of a cubic foot of rain water,
weighed in the standard temperature; that the series of weights of
the United States shall consist of pounds, ounces, pennyweights, and
grains; whereof
24 grains shall be one pennyweight;
18 pennyweights one ounce;
16 ounces one pound.
COINS.
Congress, in 1786, established the money unit at 375.64 troy
grains of pure silver. It is proposed to enlarge this by about the
third of a grain in weight, or a mill in value; that is to say, to
establish it at 376 (or, more exactly, 375.989343) instead of 375.64
grains; because it will be shown that this, as the unit of coin, will
link in system with the units of length, surface, capacity, and
weight, whenever it shall be thought proper to extend the decimal
ratio through all these branches. It is to preserve the possibility
of doing this, that this very minute alteration is proposed.
We have this proportion, then, 875 to 864, as 375.989343 grains
troy to 371.2626277; the expression of the unit in the new grains.
Let it be declared, therefore, that the money unit, or dollar
of the United States, shall contain 371.262 American grains of pure
silver.
If nothing more, then, is proposed, than to render uniform and
stable the system we already possess, this may be effected on the
plan herein detailed; the sum of which is: 1st. That the present
measures of length be retained, and fixed by an invariable standard.
2d. That the measures of surface remain as they are, and be
invariable also as the measures of length to which they are to refer.
3d. That the unit of capacity, now so equivocal, be settled at a
medium and convenient term, and defined by the same invariable
measures of length. 4th. That the more known terms in the two kinds
of weights be retained, and reduced to one series, and that they be
referred to a definite mass of some substance, the specific gravity
of which never changes. And 5th. That the quantity of pure silver in
the money unit be expressed in parts of the weights so defined.
In the whole of this no change is proposed, except an
insensible one in the troy grain and pennyweight, and the very minute
one in the money unit.
II. But if it be thought that, either now, or at any future
time, the citizens of the United States may be induced to undertake a
thorough reformation of their whole system of measures, weights and
coins, reducing every branch to the same decimal ratio already
established in their coins, and thus bringing the calculation of the
principal affairs of life within the arithmetic of every man who can
multiply and divide plain numbers, greater changes will be necessary.
The unit of measure is still that which must give law through
the whole system; and from whatever unit we set out, the coincidences
between the old and new ratios will be rare. All that can be done,
will be to choose such a unit as will produce the most of these. In
this respect the second rod has been found, on trial, to be far
preferable to the second pendulum.
MEASURES OF LENGTH.
Let the second rod, then, as before described, be the standard
of measure; and let it be divided into five equal parts, each of
which shall be called a foot; for, perhaps, it may be better
generally to retain the name of the nearest present measure, where
there is one tolerably near. It will be about one quarter of an inch
shorter than the present foot.
Let the foot be divided Let 10 feet make a decad;
into 10 inches; 10 decads one rood;
The inch into 10 lines; 10 roods a furlong;
The line into 10 points; 10 furlongs a mile.
SUPERFICIAL MEASURES.
Superficial measures have been estimated, and so may continue
to be, in squares of the measures of length, except in the case of
lands, which have been estimated by squares, called roods and acres.
Let the rood be equal to a square, every side of which is 100 feet.
This will be 6.483 English feet less than the English (7.) rood every
way, and 1311 square feet less in its whole contents; that is to say,
about one-eighth; in which proportion, also, 4 roods will be less
than the present acre.
MEASURES OF CAPACITY.
Let the unit of capacity be the cubic foot, to be called a
bushel. It will contain 1620.05506862 cubic inches, English; be
about one-fourth less than that before proposed to be adopted as a
medium; one-tenth less than the bushel made from 8 of the Guildhall
gallons; and one-fourteenth less than the bushel made from 8 Irish
gallons of 217.6 cubic inches.
Let the bushel be divided into 10 pottles;
Each pottle into 10 demi-pints;
Each demi-pint into 10 metres, which will be of a cubic inch each.
Let 10 bushels be a quarter, and
10 quarters a last, or double ton.
The measures for use being four-sided, and the sides and
bottoms rectangular, the bushel will be a foot cube.
The pottle 5 inches square and four inches deep;
The demi-pint 2 inches square, and 2 1/2 inches deep;
The metre, an inch cube.
WEIGHTS.
Let the weight of a cubic inch of rain water, or the thousandth
part of a cubic foot, be called an ounce; and let the ounce be
divided into 10 double scruples:
The double scruple into 10 carats;
The carat into 10 minims or demi-grains;
The minim into 10 mites.
Let 10 ounces make a pound;
10 pounds a stone;
16 stones a kental;
10 kentals a hogshead.
COINS.
Let the money unit, or dollar, contain eleventh-twelfths of an
ounce of pure silver. This will be 376 troy grains, (or more
exactly, 375.989343 troy grains,) which will be about a third of a
grain, (or more exactly, .349343 of a grain,) more than the present
unit. This, with the twelfth of alloy already established, will make
the dollar or unit, of the weight of an ounce, or of a cubic inch of
rain water, exactly. The series of mills, cents, dimes, dollars, and
eagles, to remain as already established. (8.)
The second rod, or the second pendulum, expressed in the
measures of other countries, will give the proportion between their
measures and those of the United States.
Measures, weights and coins, thus referred to standards
unchangeable in their nature, (as is the length of a rod vibrating
seconds, and the weight of a definite mass of rain water,) will
themselves be unchangeable. These standards, too, are such as to be
accessible to all persons, in all times and places. The measures and
weights derived from them fall in so nearly with some of those now in
use, as to facilitate their introduction; and being arranged in
decimal ratio, they are within the calculation of every one who
possesses the first elements of arithmetic, and of easy comparison,
both for foreigners and citizens, with the measures, weights, and
coins of other countries.
A gradual introduction would lessen the inconveniences which
might attend too sudden a substitution, even of an easier for a more
difficult system. After a given term, for instance, it might begin
in the custom-houses, where the merchants would become familiarized
to it. After a further term, it might be introduced into all legal
proceedings, and merchants and traders in foreign commodities might
be required to use it in their dealings with one another. After a
still further term, all other descriptions of people might receive it
into common use. Too long a postponement, on the other hand, would
increase the difficulties of its reception with the increase of our
population.
_Appendix, containing illustrations and developments of some
passages of the preceding report._
(1.) In the second pendulum with a spherical bob, call the
distance between the centres of suspension and of the bob, 2x19.575,
or 2d, and the radius of the bob = r; then 2d:r::r:rr/2d and 2/5 of
this last proportional expresses the displacement of the centre of
oscillation, to wit: 2rr/5x2d=rr/5d. Two inches have been proposed
as a proper diameter for such a bob. In that case _r_ will be = 1.
inch, and rr/5d = 1/9787 inches.
In the cylindrical second rod, call the length of the rod,
3x19.575 or 3d, and its radius = r and rr/2x3d=rr/6d will express the
displacement of the centre of oscillation. It is thought the rod
will be sufficiently inflexible if it be 1/5 of an inch in diameter.
Then _r_ will be = .1 inch, and rr/6d=1/11745 inches, which is but
the 120th part of the displacement in the case of the pendulum with a
spherical bob, and but the 689,710th part of the whole length of the
rod. If the rod be even of half an inch diameter, the displacement
will be but 1/1879 of an inch, or 1/110356 of the length of the rod.
(2.) Sir Isaac Newton computes the pendulum for 45 degrees to
be 36 pouces 8.428 lignes. Picard made the English foot 11 pouces
2.6 lignes, and Dr. Maskelyne 11 pouces 3.11 lignes. D'Alembert
states it at 11 pouces 3 lignes, which has been used in these
calculations as a middle term, and gives us 36 pouces 8.428 lignes =
39.1491 inches. This length for the pendulum of 45 degrees had been
adopted in this report before the Bishop of Autun's proposition was
known here. He relies on Mairan's ratio for the length of the
pendulum in the latitude of Paris, to wit: 504:257::72 pouces to a
4th proportional, which will be 36.71428 pouces = 39.1619 inches, the
length of the pendulum for latitude 48 degrees 50'. The difference
between this and the pendulum for 45 degrees is .0113 of an inch; so
that the pendulum for 45 degrees would be estimated, according to
Mairan, at 39.1619 - .0113 = 39.1506 inches, almost precisely the
same with Newton's computation herein adopted.
(3.) Sir Isaac Newton's computations for the different degrees
of latitude, from 30 degrees to 45 degrees, are as follows:
degrees Pieds. Lignes. degrees Pieds. Lignes.
30 3 7.948 42 3 8.327
35 3 8.099 43 3 8.361
40 3 8.261 44 3 8.394
41 3 8.294 45 3 8.428
(4.) Or, more exactly, 144:175::224:272.2.
(5.) Or, more exactly, 62.5:1728::77.7:2150.39.
(6.) The merchant's weight.
(7.) The Eng. rood contains 10,890 sq. feet = 104.355 feet sq.
(8.) _The Measures, Weights, and Coins of the Decimal System,
estimated in those of England, now used in the United States._
1. MEASURES OF LENGTH.
Feet. Equivalent in English measure.
The point, . .001 . .011 inch.
The line, . .01 . .117
The inch, . .1 . 1.174, about 1/7 more than the
Eng. inch.
The foot, . 1. }. 11.744736 } about 1/48 less than
}. .978728 feet, } than the English foot
The decad, . 10. . 9.787, about 1/48 less than the 10
feet rod of the carpenters.
The rood, . 100. . 97.872, about 1/16 less than the side
of an English square rood.
The furlong, 1000. . 978.728, about 1/3 more than the
Eng. fur.
The mile, . 10000. . 9787.28, about 1 6/7 English mile,
nearly the Scotch and Irish mile,
and 1/2 the German mile.
2. SUPERFICIAL MEASURE.
Roods.
The hundredth, . .01 95.69 square feet English.
The tenth, . .1 957.9
The rood, . 1. 9579.085
The double acre, . 10. 2.199, or say 2.2 acres
English.
The square furlong, . 100. 22.
3. MEASURE OF CAPACITY.
Bushels. Cub. Inches.
The metre, . .001 1.62
The demi-pint, . .01 16.2, about 1/24 less than the
English half-pint.
The pottle, . .1 162.005, about 1/6 more than the
English pottle.
The bushel, . 1. { 1620.05506862 }
{ .937531868414884352 cub feet. }
about 1/4 less than the middle sized English bushel.
The quarter, . 10. . 9.375, about 1/5 less than
the Eng. qr.
The last, . 100. . 93.753, about 1/7 more than
the Eng. last.
4. WEIGHTS.
Pounds. Avoirdupois. Troy.
Mite, .00001 . . . . . . . . . . . . .041 grains, about 1/5
less than the English mite.
Minim, or }
demi-grain, } .0001 . . . . . . . . . . . . .4101, about 1/5 less
than half-grain troy.
Carat, .001 . . . . . . . . . . . . 4.101, about 1/40
more than the carat troy.
Double
scruple, .01 . . . . . . . . . . . . 41.017, about 1/40 more
than 2 scruples troy.
Ounce, . .1 { .9375318684148 } { 410.170192431
{ 84352 oz. } { .85452 oz.
about 1/16 less than the ounce avoirdupois.
Pound, . 1. { 9.375 } .712101 lb., about 1/4
{ .585957417759 lb. } less than the pound
troy.
Stone, . 10. { 93.753 oz. } 7.121 about 1/4 less
{ 5.8595 lb. } than the English
stone of 8 lbs. avoirdupois.
Kental, . 100. { 937.531 oz. } 71.21 about 4/10 less
{ 58.5957 lb. } than the English
kental of 100 lbs. avoirdupois.
Hogshead, . 1000. { 9375.318 oz. } 712.101
{ 585.9574 lb. }
5. COINS.
Dollars. Troy grains
The mill, . .001 Dollar, . 1. { 375.98934306 pure silver.
The cent, . .01 { 34.18084937 alloy.
The dime, . .1 ------------
410.17019243
Eagle. . 10.
_Postscript_.
January 10, 1791
It is scarcely necessary to observe that the measures, weights,
and coins, proposed in the preceding report, will be derived
altogether from mechanical operations, viz.: A rod, vibrating
seconds, divided into five equal parts, one of these subdivided, and
multiplied decimally, for every measure of length, surface, and
capacity, and these last filled with water, to determine the weights
and coins. The arithmetical estimates in the report were intended
only to give an idea of what the new measures, weights, and coins,
would be nearly, when compared with the old. The length of the
standard or second rod, therefore, was assumed from that of the
pendulum; and as there has been small differences in the estimates of
the pendulum by different persons, that of Sir Isaac Newton was
taken, the highest authority the world has yet known. But, if even
he has erred, the measures, weights, and coins proposed, will not be
an atom the more or less. In cubing the new foot, which was
estimated at .978728 of an English foot, or 11.744736 English inches,
an arithmetical error of an unit happened in the fourth column of
decimals, and was repeated in another line in the sixth column, so as
to make the result one ten thousandth and one millionth of a foot too
much. The thousandth part of this error (about one ten millionth of
a foot) consequently fell on the metre of measure, the ounce weight,
and the unit of money. In the last it made a difference of about the
twenty-fifth part of a grain Troy, in weight, or the ninety-third of
a cent in value. As it happened, this error was on the favorable
side, so that the detection of it approximates our estimate of the
new unit exactly that much nearer to the old, and reduces the
difference between them to 34, instead of 38 hundredths of a grain
Troy; that is to say, the money unit instead of 375.64 Troy grains of
pure silver, as established heretofore, will now be 375.98934306
grains, as far as our knowledge of the length of the second pendulum
enables us to judge; and the current of authorities since Sir Isaac
Newton's time, gives reason to believe that his estimate is more
probably above than below the truth, consequently future corrections
of it will bring the estimate of the new unit still nearer to the
old.
The numbers in which the arithmetical error before mentioned
showed itself in the table, at the end of the report, have been
rectified, and the table re-printed.
The head of superficial measures in the last part of the
report, is thought to be not sufficiently developed. It is proposed
that the rood of land, being 100 feet square, (and nearly a quarter
of the present acre,) shall be the unit of land measure. This will
naturally be divided into tenths and hundredths, the latter of which
will be a square decad. Its multiples will also, of course, be tens,
which may be called double acres, and hundreds, which will be equal
to a square furlong each. The surveyor's chain should be composed of
100 links of one foot each.
_Opinion on the Constitutionality of a National Bank_
February 15, 1791
The bill for establishing a National Bank undertakes among
other things: --
1.the subscribers into a corporation.
2. To enable them in their corporate capacities to receive
grants of land; and so far is against the laws of _Mortmain_. (*)
(*) Though the Constitution controls the laws of Mortmain so
far as to permit Congress itself to hold land for certain purposes,
yet not so far as to permit them to communicate a similar right to
other corporate bodies.
3. To make alien subscribers capable of holding lands; and so
far is against the laws of _Alienage_.
4. To transmit these lands, on the death of a proprietor, to a
certain line of successors; and so far changes the course of
_Descents_.
5. To put the lands out of the reach of forfeiture or escheat;
and so far is against the laws of _Forfeiture and Escheat_.
6. To transmit personal chattels to successors in a certain
line; and so far is against the laws of _Distribution_.
7. To give them the sole and exclusive right of banking under
the national authority; and so far is against the laws of Monopoly.
8. To communicate to them a power to make laws paramount to the
laws of the States: for so they must be construed, to protect the
institution from the control of the State legislatures; and so,
probably, they will be construed.
I consider the foundation of the Constitution as laid on this
ground: That "all powers not delegated to the United States, by the
Constitution, nor prohibited by it to the States, are reserved to the
States or to the people." [XIIth amendment.] To take a single step
beyond the boundaries thus specially drawn around the powers of
Congress, is to take possession of a boundless field of power, no
longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this
bill, have not, in my opinion, been delegated to the United States,
by the Constitution.
I. They are not among the powers specially enumerated: for
these are: 1st. A power to lay taxes for the purpose of paying the
debts of the United States; but no debt is paid by this bill, nor any
tax laid. Were it a bill to raise money, its origination in the
Senate would condemn it by the Constitution.
2d. "To borrow money." But this bill neither borrows money nor
ensures the borrowing it. The proprietors of the bank will be just
as free as any other money holders, to lend or not to lend their
money to the public. The operation proposed in the bill, first, to
lend them two millions, and then to borrow them back again, cannot
change the nature of the latter act, which will still be a payment,
and not a loan, call it by what name you please.
3. To "regulate commerce with foreign nations, and among the
States, and with the Indian tribes." To erect a bank, and to regulate
commerce, are very different acts. He who erects a bank, creates a
subject of commerce in its bills; so does he who makes a bushel of
wheat, or digs a dollar out of the mines; yet neither of these
persons regulates commerce thereby. To make a thing which may be
bought and sold, is not to prescribe regulations for buying and
selling. Besides, if this was an exercise of the power of regulating
commerce, it would be void, as extending as much to the internal
commerce of every State, as to its external. For the power given to
Congress by the Constitution does not extend to the internal
regulation of the commerce of a State, (that is to say of the
commerce between citizen and citizen,) which remain exclusively with
its own legislature; but to its external commerce only, that is to
say, its commerce with another State, or with foreign nations, or
with the Indian tribes. Accordingly the bill does not propose the
measure as a regulation of trade, but as "productive of considerable
advantages to trade." Still less are these powers covered by any
other of the special enumerations.
II. Nor are they within either of the general phrases, which
are the two following: --
1. To lay taxes to provide for the general welfare of the
United States, that is to say, "to lay taxes for _the purpose_ of
providing for the general welfare." For the laying of taxes is the
_power_, and the general welfare the _purpose_ for which the power is
to be exercised. They are not to lay taxes _ad libitum for any
purpose they please_; but only _to pay the debts or provide for the
welfare of the Union_. In like manner, they are not _to do anything
they please_ to provide for the general welfare, but only to _lay
taxes_ for that purpose. To consider the latter phrase, not as
describing the purpose of the first, but as giving a distinct and
independent power to do any act they please, which might be for the
good of the Union, would render all the preceding and subsequent
enumerations of power completely useless.
It would reduce the whole instrument to a single phrase, that
of instituting a Congress with power to do whatever would be for the
good of the United States; and, as they would be the sole judges of
the good or evil, it would be also a power to do whatever evil they
please.
It is an established rule of construction where a phrase will
bear either of two meanings, to give it that which will allow some
meaning to the other parts of the instrument, and not that which
would render all the others useless. Certainly no such universal
power was meant to be given them. It was intended to lace them up
straitly within the enumerated powers, and those without which, as
means, these powers could not be carried into effect. It is known
that the very power now proposed _as a means_ was rejected as _an
end_ by the Convention which formed the Constitution. A proposition
was made to them to authorize Congress to open canals, and an
amendatory one to empower them to incorporate. But the whole was
rejected, and one of the reasons for rejection urged in debate was,
that then they would have a power to erect a bank, which would render
the great cities, where there were prejudices and jealousies on the
subject, adverse to the reception of the Constitution.
2. The second general phrase is, "to make all laws _necessary_
and proper for carrying into execution the enumerated powers." But
they can all be carried into execution without a bank. A bank
therefore is not _necessary_, and consequently not authorized by this
phrase.
It has been urged that a bank will give great facility or
convenience in the collection of taxes. Suppose this were true: yet
the Constitution allows only the means which are "_necessary_," not
those which are merely "convenient" for effecting the enumerated
powers. If such a latitude of construction be allowed to this phrase
as to give any non-enumerated power, it will go to every one, for
there is not one which ingenuity may not torture into a _convenience_
in some instance _or other_, to _some one_ of so long a list of
enumerated powers. It would swallow up all the delegated powers, and
reduce the whole to one power, as before observed. Therefore it was
that the Constitution restrained them to the _necessary_ means, that
is to say, to those means without which the grant of power would be
nugatory.
But let us examine this convenience and see what it is. The
report on this subject, page 3, states the only _general_ convenience
to be, the preventing the transportation and re-transportation of
money between the States and the treasury, (for I pass over the
increase of circulating medium, ascribed to it as a want, and which,
according to my ideas of paper money, is clearly a demerit.) Every
State will have to pay a sum of tax money into the treasury; and the
treasury will have to pay, in every State, a part of the interest on
the public debt, and salaries to the officers of government resident
in that State. In most of the States there will still be a surplus
of tax money to come up to the seat of government for the officers
residing there. The payments of interest and salary in each State
may be made by treasury orders on the State collector. This will
take up the greater part of the money he has collected in his State,
and consequently prevent the great mass of it from being drawn out of
the State. If there be a balance of commerce in favor of that State
against the one in which the government resides, the surplus of taxes
will be remitted by the bills of exchange drawn for that commercial
balance. And so it must be if there was a bank. But if there be no
balance of commerce, either direct or circuitous, all the banks in
the world could not bring up the surplus of taxes but in the form of
money. Treasury orders then, and bills of exchange may prevent the
displacement of the main mass of the money collected, without the aid
of any bank; and where these fail, it cannot be prevented even with
that aid.
Perhaps, indeed, bank bills may be a more _convenient_ vehicle
than treasury orders. But a little _difference_ in the degree of
_convenience_, cannot constitute the necessity which the constitution
makes the ground for assuming any non-enumerated power.
Besides; the existing banks will, without a doubt, enter into
arrangements for lending their agency, and the more favorable, as
there will be a competition among them for it; whereas the bill
delivers us up bound to the national bank, who are free to refuse all
arrangement, but on their own terms, and the public not free, on such
refusal, to employ any other bank. That of Philadelphia, I believe,
now does this business, by their post-notes, which, by an arrangement
with the treasury, are paid by any State collector to whom they are
presented. This expedient alone suffices to prevent the existence of
that _necessity_ which may justify the assumption of a non-enumerated
power as a means for carrying into effect an enumerated one. The
thing may be done, and has been done, and well done, without this
assumption; therefore, it does not stand on that degree of
_necessity_ which can honestly justify it.
It may be said that a bank whose bills would have a currency
all over the States, would be more convenient than one whose currency
is limited to a single State. So it would be still more convenient
that there should be a bank, whose bills should have a currency all
over the world. But it does not follow from this superior
conveniency, that there exists anywhere a power to establish such a
bank; or that the world may not go on very well without it.
Can it be thought that the Constitution intended that for a
shade or two of _convenience_, more or less, Congress should be
authorised to break down the most ancient and fundamental laws of the
several States; such as those against Mortmain, the laws of Alienage,
the rules of descent, the acts of distribution, the laws of escheat
and forfeiture, the laws of monopoly? Nothing but a necessity
invincible by any other means, can justify such a prostitution of
laws, which constitute the pillars of our whole system of
jurisprudence. Will Congress be too straight-laced to carry the
constitution into honest effect, unless they may pass over the
foundation-laws of the State government for the slightest convenience
of theirs?
The negative of the President is the shield provided by the
constitution to protect against the invasions of the legislature: 1.
The right of the Executive. 2. Of the Judiciary. 3. Of the States
and State legislatures. The present is the case of a right remaining
exclusively with the States, and consequently one of those intended
by the Constitution to be placed under its protection.
It must be added, however, that unless the President's mind on
a view of everything which is urged for and against this bill, is
tolerably clear that it is unauthorised by the Constitution; if the
pro and the con hang so even as to balance his judgment, a just
respect for the wisdom of the legislature would naturally decide the
balance in favor of their opinion. It is chiefly for cases where
they are clearly misled by error, ambition, or interest, that the
Constitution has placed a check in the negative of the President.
_Opinion on the French Treaties_
April 28, 1793
I proceed, in compliance with the requisition of the President,
to give an opinion in writing on the general Question, Whether the U
S. have a right to renounce their treaties with France, or to hold
them suspended till the government of that country shall be
established?
In the Consultation at the President's on the 19th inst. the
Secretary of the Treasury took the following positions &
consequences. `France was a monarchy when we entered into treaties
with it: but it has now declared itself a Republic, & is preparing a
Republican form of government. As it may issue in a Republic, or a
Military despotism, or in something else which may possibly render
our alliance with it dangerous to ourselves, we have a right of
election to renounce the treaty altogether, or to declare it
suspended till their government shall be settled in the form it is
ultimately to take; and then we may judge whether we will call the
treaties into operation again, or declare them forever null. Having
that right of election now, if we receive their minister without any
qualifications, it will amount to an act of election to continue the
treaties; & if the change they are undergoing should issue in a form
which should bring danger on us, we shall not be then free to
renounce them. To elect to continue them is equivalent to the making
a new treaty at this time in the same form, that is to say, with a
clause of guarantee; but to make a treaty with a clause of guarantee,
during a war, is a departure from neutrality, and would make us
associates in the war. To renounce or suspend the treaties therefore
is a necessary act of neutrality.'
If I do not subscribe to the soundness of this reasoning, I do
most fully to its ingenuity. -- I shall now lay down the principles
which according to my understanding govern the case.
I consider the people who constitute a society or nation as the
source of all authority in that nation, as free to transact their
common concerns by any agents they think proper, to change these
agents individually, or the organisation of them in form or function
whenever they please: that all the acts done by those agents under
the authority of the nation, are the acts of the nation, are
obligatory on them, & enure to their use, & can in no wise be
annulled or affected by any change in the form of the government, or
of the persons administering it. Consequently the Treaties between
the U S. and France, were not treaties between the U S. & Louis
Capet, but between the two nations of America & France, and the
nations remaining in existance, tho' both of them have since changed
their forms of government, the treaties are not annulled by these
changes.
The Law of nations, by which this question is to be determined,
is composed of three branches. 1. The Moral law of our nature. 2.
The Usages of nations. 3. Their special Conventions. The first of
these only, concerns this question, that is to say the Moral law to
which Man has been subjected by his creator, & of which his feelings,
or Conscience as it is sometimes called, are the evidence with which
his creator has furnished him. The Moral duties which exist between
individual and individual in a state of nature, accompany them into a
state of society & the aggregate of the duties of all the individuals
composing the society constitutes the duties of that society towards
any other; so that between society & society the same moral duties
exist as did between the individuals composing them while in an
unassociated state, their maker not having released them from those
duties on their forming themselves into a nation. Compacts then
between nation & nation are obligatory on them by the same moral law
which obliges individuals to observe their compacts. There are
circumstances however which sometimes excuse the non-performance of
contracts between man & man: so are there also between nation &
nation. When performance, for instance, becomes _impossible_,
non-performance is not immoral. So if performance becomes
_self-destructive_ to the party, the law of self-preservation
overrules the laws of obligation to others. For the reality of these
principles I appeal to the true fountains of evidence, the head &
heart of every rational & honest man. It is there Nature has written
her moral laws, & where every man may read them for himself. He will
never read there the permission to annul his obligations for a time,
or for ever, whenever they become `dangerous, useless, or
disagreeable.' Certainly not when merely _useless_ or _disagreeable_,
as seems to be said in an authority which has been quoted, Vattel. 2.
197, and tho he may under certain degrees of _danger_, yet the danger
must be imminent, & the degree great. Of these, it is true, that
nations are to be judges for themselves, since no one nation has a
right to sit in judgment over another. But the tribunal of our
consciences remains, & that also of the opinion of the world. These
will revise the sentence we pass in our own case, & as we respect
these, we must see that in judging ourselves we have honestly done
the part of impartial & vigorous judges.
But Reason, which gives this right of self-liberation from a
contract in certain cases, has subjected it to certain just
limitations.
I. The danger which absolves us must be great, inevitable &
imminent. Is such the character of that now apprehended from our
treaties with France? What is that danger. 1. Is it that if their
government issues in a military despotism, an alliance with them may
taint us with despotic principles? But their government, when we
allied ourselves to it, was a perfect despotism, civil & military,
yet the treaties were made in that very state of things, & therefore
that danger can furnish no just cause. 2. Is it that their
government may issue in a republic, and too much strengthen our
republican principles? But this is the hope of the great mass of our
constituents, & not their dread. They do not look with longing to
the happy mean of a limited monarchy. 3. But says the doctrine I am
combating, the change the French are undergoing may possibly end in
something we know not what, and bring on us danger we know not
whence. In short it may end in a Rawhead & bloody-bones in the dark.
Very well. Let Rawhead & bloody bones come, & then we shall be
justified in making our peace with him, by renouncing our antient
friends & his enemies. For observe, it is not the _possibility of
danger_ which absolves a party from his contract: for that
possibility always exists, & in every case. It existed in the
present one at the moment of making the contract. If _possibilities_
would avoid contracts, there never could be a valid contract. For
possibilities hang over everything. Obligation is not suspended,
till the danger is become real, & the moment of it so imminent, that
we can no longer avoid decision without forever losing the
opportunity to do it. But can a danger which has not yet taken it's
shape, which does not yet exist, & never may exist, which cannot
therefore be defined, can such a danger I ask, be so imminent that if
we fail to pronounce on it in this moment we can never have another
opportunity of doing it?
4. The danger apprehended, is it that, the treaties remaining
valid, the clause guarantying their West India islands will engage us
in the war? But does the Guarantee engage us to enter into the war
in any event?
Are we to enter into it before we are called on by our allies?
Have we been called on by them? -- shall we ever be called on? Is it
their interest to call on us?
Can they call on us before their islands are invaded, or
imminently threatened?
If they can save them themselves, have they a right to call on
us?
Are we obliged to go to war at once, without trying peaceable
negociations with their enemy?
If all these questions be against us, there are still others
behind.
Are we in a condition to go to war?
Can we be expected to begin before we are in condition?
Will the islands be lost if we do not save them? Have we the
means of saving them?
If we cannot save them are we bound to go to war for a
desperate object?
Will not a 10. years forbearance in us to call them into the
guarantee of our posts, entitle us to some indulgence?
Many, if not most of these questions offer grounds of doubt
whether the clause of guarantee will draw us into the war.
Consequently if this be the danger apprehended, it is not yet certain
enough to authorize us in sound morality to declare, at this moment,
the treaties null.
5. Is the danger apprehended from the 17th. article of the
treaty of Commerce, which admits French ships of war & privateers to
come and go freely, with prizes made on their enemies, while their
enemies are not to have the same privilege with prizes made on the
French? But Holland & Prussia have approved of this article in our
treaty with France, by subscribing to an express Salvo of it in our
treaties with them. [Dutch treaty 22. Convention 6. Prussian treaty
19.] And England in her last treaty with France [art. 40] has entered
into the same stipulation verbatim, & placed us in her ports on the
same footing on which she is in ours, in case of a war of either of
us with France. If we are engaged in such a war, England must
receive prizes made on us by the French, & exclude those made on the
French by us. Nay further, in this very article of her treaty with
France, is a salvo of any similar article in any anterior treaty of
either party, and ours with France being anterior, this salvo
confirms it expressly. Neither of these three powers then have a
right to complain of this article in our treaty.
6. Is the danger apprehended from the 22d. Art. of our treaty
of commerce, which prohibits the enemies of France from fitting out
privateers in our ports, or selling their prizes here. But we are
free to refuse the same thing to France, there being no stipulation
to the contrary, and we ought to refuse it on principles of fair
neutrality.
7. But the reception of a Minister from the Republic of France,
without qualifications, it is thought will bring us into danger:
because this, it is said, will determine the continuance of the
treaty, and take from us the right of self-liberation when at any
time hereafter our safety would require us to use it. The reception
of the Minister at all (in favor of which Colo. Hamilton has given
his opinion, tho reluctantly as he confessed) is an acknolegement of
the legitimacy of their government: and if the qualifications
meditated are to deny that legitimacy, it will be a curious compound
which is to admit & deny the same thing. But I deny that the
reception of a Minister has any thing to do with the treaties. There
is not a word, in either of them, about sending ministers. This has
been done between us under the common usage of nations, & can have no
effect either to continue or annul the treaties.
But how can any act of election have the effect to continue a
treaty which is acknoleged to be going on still? For it was not
pretended the treaty was void, but only voidable if we chuse to
declare it so. To make it void would require an act of election, but
to let it go on requires only that we should do nothing, and doing
nothing can hardly be an infraction of peace or neutrality.
But I go further & deny that the most explicit declaration made
at this moment that we acknolege the obligation of the treatys could
take from us the right of non-compliance at any future time when
compliance would involve us in great & inevitable danger.
I conclude then that few of these sources threaten any danger
at all; and from none of them is it inevitable: & consequently none
of them give us the right at this moment of releasing ourselves from
our treaties.
II. A second limitation on our right of releasing ourselves is
that we are to do it from so much of the treaties only as is bringing
great & inevitable danger on us, & not from the residue, allowing to
the other party a right at the same time to determine whether on our
non-compliance with that part they will declare the whole void. This
right they would have, but we should not. Vattel. 2. 202. The only
part of the treaties which can really lead us into danger is the
clause of guarantee. That clause is all then we could suspend in any
case, and the residue will remain or not at the will of the other
party.
III. A third limitation is that where a party from necessity or
danger withholds compliance with part of a treaty, it is bound to
make compensation where the nature of the case admits & does not
dispense with it. 2. Vattel 324. Wolf. 270. 443. If actual
circumstances excuse us from entering into the war under the clause
of guarantee, it will be a question whether they excuse us from
compensation. Our weight in the war admits of an estimate; & that
estimate would form the measure of compensation.
If in withholding a compliance with any part of the treaties,
we do it without just cause or compensation, we give to France a
cause of war, and so become associated in it on the other side. An
injured friend is the bitterest of foes, & France had not discovered
either timidity, or over-much forbearance on the late occasions. Is
this the position we wish to take for our constituents? It is
certainly not the one they would take for themselves.
I will proceed now to examine the principal authority which has
been relied on for establishing the right of self liberation; because
tho' just in part, it would lead us far beyond justice, if taken in
all the latitude of which his expressions would admit. Questions of
natural right are triable by their conformity with the moral sense &
reason of man. Those who write treatises of natural law, can only
declare what their own moral sense & reason dictate in the several
cases they state. Such of them as happen to have feelings & a reason
coincident with those of the wise & honest part of mankind, are
respected & quoted as witnesses of what is morally right or wrong in
particular cases. Grotius, Puffendorf, Wolf, & Vattel are of this
number. Where they agree their authority is strong. But where they
differ, & they often differ, we must appeal to our own feelings and
reason to decide between them.
The passages in question shall be traced through all these
writers, that we may see wherein they concur, & where that
concurrence is wanting. It shall be quoted from them in the order in
which they wrote, that is to say, from Grotius first, as being the
earliest writer, Puffendorf next, then Wolf, & lastly Vattel as
latest in time.
Grotius. 2. 16. 16.
`Hither must be referred the common question, concerning
personal & real treaties. If indeed it be with a free people, there
can be no doubt but that the engagement is in it's nature real,
because the subject is a permanent thing, and even tho the government
of the state be changed into a Kingdom, the treaty remains, because
the same body remains, tho' the head is changed, and, as we have
before said, the government which is exercised by a King, does not
cease to be the government of the people. There is an _exception_,
when the object seems peculiar to the government as if free cities
contract a league for the defence of their freedom.'
Puffendorf. 8. 9. 6.
`It is certain that every alliance made with a republic, is
real, & continues consequently to the term agreed on by the treaty,
altho' the magistrates who concluded it be dead before, or that the
form of government is changed, even from a democracy to a monarchy:
for in this case the people does not cease to be the same, and the
King, in the case supposed, being established by the consent of the
people, who abolished the republican government, is understood to
accept the crown with all the engagements which the people conferring
it had contracted, as being free & governing themselves. There must
nevertheless be an _Exception_ of the alliances contracted with a
view to preserve the present government. As if two Republics league
for neutral defence against those who would undertake to invade their
liberty: for if one of these two people consent afterwards
voluntarily to change the form of their government, the alliance ends
of itself, because the reason on which it was founded no longer
subsists.'
Wolf. 1146.
`The alliance which is made with a free people, or with a
popular government, is a real alliance; and as when the form of
government changes, the people remains the same, (for it is the
association which forms the people, & not the manner of administering
the government) this alliance subsists, tho' the form of government
changes, _unless_, as is evident, the reason of the alliance was
particular to the popular state.'
Vattel. 2. 197.
`The same question presents itself in real alliances, & in
general on every alliance made with a state, & not in particular with
a King for the defense of his person. We ought without doubt to
defend our ally against all invasion, against all foreign violence, &
even against rebel subjects. We ought in like manner to defend a
republic against the enterprises of an oppressor of the public
liberty. But we ought to recollect that we are the ally of the
state, or of the nation, & not it's judge. If the nation has deposed
it's King in form, if the people of a republic has driven away it's
magistrates, & have established themselves free, or if they have
acknoleged the authority of an usurper, whether expressly or tacitly,
to oppose these domestic arrangements, to contest their justice or
validity, would be to meddle with the government of the nation, & to
do it an injury. The ally remains the ally of the state,
notwithstanding the change which has taken place. _But if this
change renders the alliance useless, dangerous or disagreeable to it,
it is free to renounce it. For it may say with truth, that it would
not have allied itself with this nation, if it had been under the
present form of it's government._'
The doctrine then of Grotius, Puffendorf & Wolf is that
`treaties remain obligatory notwithstanding any change in the form of
government, except in the single case where the preservation of that
form was the object of the treaty.' There the treaty extinguishes,
not by the election or declaration of the party remaining in statu
quo; but independantly of that, by the evanishment of the object.
Vattel lays down, in fact, the same doctrine, that treaties continue
obligatory, notwithstanding a change of government by the will of the
other party, that to oppose that will would be a wrong, & that the
ally remains an ally notwithstanding the change. So far he concurs
with all the previous writers. But he then adds what they had not
said, nor would say `but if this change renders the alliance
_useless_, dangerous, or _disagreeable_ to it, it is free to renounce
it.' It was unnecessary for him to have specified the exception of
_danger_ in this particular case, because that exception exists in
all cases & it's extent has been considered. But when he adds that,
because a contract is become merely _useless_ or _disagreeable_, we
are free to renounce it, he is in opposition to Grotius, Puffendorf,
& Wolf, who admit no such licence against the obligation of treaties,
& he is in opposition to the morality of every honest man, to whom we
may safely appeal to decide whether he feels himself free to renounce
a contract the moment it becomes merely _useless_ or _disagreeable_,
to him? We may appeal too to Vattel himself, in those parts of his
book where he cannot be misunderstood, & to his known character, as
one of the most zealous & constant advocates for the preservation of
good faith in all our dealings. Let us hear him on other occasions;
& first where he shews what degree of danger or injury will authorize
self-liberation from a treaty. `If simple lezion' (lezion means the
loss sustained by selling a thing for less than half value, which
degree of loss rendered the sale void by the Roman law), `if simple
lezion, says he, or some degree of disadvantage in a treaty does not
suffice to render it invalid, it is not so as to inconveniences which
would go to the _ruin_ of the nation. As every treaty ought to be
made by a sufficient power, a treaty pernicious to the state is null,
& not at all obligatory; no governor of a nation having power to
engage things capable of _destroying_ the state, for the safety of
which the empire is trusted to him. The nation itself, bound
necessarily to whatever it's preservation & safety require, cannot
enter into engagements contrary to it's indispensable obligations.'
Here then we find that the degree of injury or danger which he deems
sufficient to liberate us from a treaty, is that which would go to
the absolute _ruin_ or _destruction_ of the state; not simply the
lezion of the Roman law, not merely the being disadvantageous, or
dangerous. For as he says himself 158. `lezion cannot render a
treaty invalid. It is his duty, who enters into engagements, to
weigh well all things before be concludes. He may do with his
property what he pleases, he may relinquish his rights, renounce his
advantages, as he judges proper: the acceptant is not obliged to
inform himself of his motives, nor to weigh their just value. If we
could free ourselves from a compact because we find ourselves injured
by it, there would be nothing firm in the contracts of nations.
Civil laws may set limits to lezion, & determine the degree capable
of producing a nullity of the contract. But sovereigns acknolege no
judge. How establish lezion among them? Who will determine the
degree sufficient to invalidate a treaty? The happiness & peace of
nations require manifestly that their treaties should not depend on a
means of nullity so vague & so dangerous.'
Let us hear him again on the general subject of the observance
of treaties 163. `It is demonstrated in natural law that he who
promises another confers on him a perfect right to require the thing
promised, & that, consequently, not to observe a perfect promise, is
to violate the right of another; it is as manifest injustice as to
plunder any one of their right. All the tranquillity, the happiness
& security of mankind rest on justice, on the obligation to respect
the rights of others. The respect of others for our rights of domain
& property is the security of our actual possessions; the faith of
promises is our security for the things which cannot be delivered or
executed on the spot. No more security, no more commerce among men,
if they think themselves not obliged to preserve faith, to keep their
word. This obligation then is as necessary as it is natural &
indubitable, among nations who live together in a state of nature, &
who acknolege no superior on earth, to maintain order & peace in
their society. Nations & their governors then ought to observe
inviolably their promises & their treaties. This great truth, altho'
too often neglected in practice, is generally acknoleged by all
nations: the reproach of perfidy is a bitter affront among
sovereigns: now he who does not observe a treaty is assuredly
perfidious, since he violates his faith. On the contrary nothing is
so glorious to a prince & his nation, as the reputation of inviolable
fidelity to his word.' Again 219. `Who will doubt that treaties are
of the things sacred among nations? They decide matters the most
important. They impose rules on the pretensions of sovereigns: they
cause the rights of nations to be acknoleged, they assure their most
precious interests. Among political bodies, sovereigns, who
acknolege no superior on earth, treaties are the only means of
adjusting their different pretensions, of establishing a rule, to
know on what to count, on what to depend. But treaties are but vain
words if nations do not consider them as respectable engagements, as
rules, inviolable for sovereigns, & sacred through the whole earth.
220. The faith of treaties, that firm & sincere will, that
invariable constancy in fulfilling engagements, of which a
declaration is made in a treaty, is there holy & sacred, among
nations, whose safety & repose it ensures; & if nations will not be
wanting to themselves, they will load with infamy whoever violates
his faith.'
After evidence so copious & explicit of the respect of this
author for the sanctity of treaties, we should hardly have expected
that his authority would have been resorted to for a wanton
invalidation of them whenever they should become merely _useless_ or
_disagreeable_. We should hardly have expected that, rejecting all
the rest of his book, this scrap would have been culled, & made the
hook whereon to hang such a chain of immoral consequences. Had the
passage accidentally met our eye, we should have imagined it had
fallen from the author's pen under some momentary view, not
sufficiently developed to found a conjecture what he meant: and we
may certainly affirm that a fragment like this cannot weigh against
the authority of all other writers, against the uniform & systematic
doctrine of every work from which it is torn, against the moral
feelings & the reason of all honest men. If the terms of the
fragment are not misunderstood, they are in full contradiction to all
the written & unwritten evidences of morality: if they are
misunderstood, they are no longer a foundation for the doctrines
which have been built on them.
But even had this doctrine been as true as it is manifestly
false, it would have been asked, to whom is it that the treaties with
France have become _disagreeable_? How will it be proved that they
are _useless_?
The conclusion of the sentence suggests a reflection too strong
to be suppressed `for the party may say with truth that it would not
have allied itself with this nation, if it had been under the present
form of it's government.' The Republic of the U.S. allied itself with
France when under a despotic government. She changes her government,
declares it shall be a Republic, prepares a form of Republic
extremely free, and in the mean time is governing herself as such,
and it is proposed that America shall declare the treaties void
because `it may say with truth that it would not have allied itself
with that nation, if it had been under the present form of it's
government!' Who is the American who can say with truth that he would
not have allied himself to France if she had been a republic? or
that a Republic of any form would be as _disagreeable_ as her antient
despotism?
Upon the whole I conclude
That the treaties are still binding, notwithstanding the change
of government in France: that no part of them, but the clause of
guarantee, holds up _danger_, even at a distance.
And consequently that a liberation from no other part could be
proposed in any case: that if that clause may ever bring _danger_, it
is neither extreme, nor imminent, nor even probable: that the
authority for renouncing a treaty, when _useless_ or _disagreeable_,
is either misunderstood, or in opposition to itself, to all their
writers, & to every moral feeling: that were it not so, these
treaties are in fact neither useless nor disagreeable.
That the receiving a Minister from France at this time is an
act of no significance with respect to the treaties, amounting
neither to an admission nor a denial of them, forasmuch as he comes
not under any stipulation in them:
That were it an explicit admission, or were an express
declaration of this obligation now to be made, it would not take from
us that right which exists at all times of liberating ourselves when
an adherence to the treaties would be _ruinous_ or _destructive_ to
the society: and that the not renouncing the treaties now is so far
from being a breach of neutrality, that the doing it would be the
breach, by giving just cause of war to France.
_Report on the Privileges and Restrictions on the Commerce of
the United States in Foreign Counies_
December 16, 1793
_The Secretary of State, to whom was referred by the House of
Representatives, the report of a committee on the written message of
the President of the United States, of the 14th of February, 1791,
with instructions to report to Congress the nature and extent of the
privileges and restrictions of the commercial intercourse of the
United States with foreign nations, and the measures which he should
think proper to be adopted for the improvement of the commerce and
navigation of the same, has had the same under consideration, and
thereupon makes the following Report:
The countries with which the United States have their chief
commercial intercourse are Spain, Portugal, France, Great Britain,
the United Netherlands, Denmark, and Sweden, and their American
possessions; and the articles of export, which constitute the basis
of that commerce, with their respective amounts, are,
Breadstuff, that is to say, bread grains, meals,
and bread, to the annual amount of. . . . . . . . 7,649,887
Tobacco . . . . . . . . . . . . . . . . . . . . . 4,349,567
Rice . . . . . . . . . . . . . . . . . . . . . . 1,753,796
Wood . . . . . . . . . . . . . . . . . . . . . . 1,263,534
Salted fish . . . . . . . . . . . . . . . . . . . 941,696
Pot and pearl ash . . . . . . . . . . . . . . . . 839,093
Salted meats . . . . . . . . . . . . . . . . . . 599,130
Indigo . . . . . . . . . . . . . . . . . . . . . 537,379
Horses and mules . . . . . . . . . . . . . . . . 339,753
Whale oil . . . . . . . . . . . . . . . . . . . . 252,591
Flax seed . . . . . . . . . . . . . . . . . . . . 236,072
Tar, pitch and turpentine . . . . . . . . . . . . 217,177
Live provisions . . . . . . . . . . . . . . . . . 137,743
Ships . . . . . . . . . . . . . . . . . . . . .
Foreign goods . . . . . . . . . . . . . . . . . . 620,274
To descend to articles of smaller value than these, would lead
into a minuteness of detail neither necessary nor useful to the
present object.
The proportions of our exports, which go to the nations b efore
mentioned, and to their dominions, respectively, are as follows:
To Spain and its dominions . . . . . . . . . . $2,005,907
Portugal and its dominions . . . . . . . . . . . 1,283,462
France and its dominions . . . . . . . . . . . . 4,698,735
Great Britain and its dominions . . . . . . . . 9,363,416
The United Netherlands and their dominions . . . 1,963,880
Denmark and its dominions . . . . . . . . . . . 224,415
Sweden and its dominions . . . . . . . . . . . 47,240
Our imports from the same countries, are
Spain and its dominions . . . . . . . . . . . . 335,110
Portugal and its dominions . . . . . . . . . . . 595,763
France and its dominions . . . . . . . . . . . 2,068,348
Great Britain and its dominions . . . . . . . 15,285,428
United Netherlands and their dominions . . . . 1,172,692
Denmark and its dominions . . . . . . . . . . . 351,364
Sweden and its dominions . . . . . . . . . . . . 14,325
These imports consist mostly of articles on which industry has
been exhausted.
Our _navigation_, depending on the same commerce, will appear
by the following statement of the tonnage of our own vessels,
entering in our ports, from those several nations and their
possessions, in one year: that is to say, from October, 1789, to
September, 1790, inclusive, as follows:
Tons.
Spain . . . . . . . . . . . . . . . . . . . . . 19,695
Portugal . . . . . . . . . . . . . . . . . . . . 23,576
France . . . . . . . . . . . . . . . . . . . . . 116,410
Great Britain . . . . . . . . . . . . . . . . . 43,580
United Netherlands . . . . . . . . . . . . . . . 58,858
Denmark . . . . . . . . . . . . . . . . . . . . 14,655
Sweden . . . . . . . . . . . . . . . . . . . . . 750
Of our commercial objects, Spain receives favorably our
breadstuff, salted fish, wood, ships, tar, pitch, and turpentine. On
our meals, however, as well as on those of other foreign countries,
when re-exported to their colonies, they have lately imposed duties
of from half-a-dollar to two dollars the barrel, the duties being so
proportioned to the current price of their own flour, as that both
together are to make the constant sum of nine dollars per barrel.
They do not discourage our rice, pot and pearl ash, salted
provisions, or whale oil; but these articles, being in small demand
at their markets, are carried thither but in a small degree. Their
demand for rice, however, is increasing. Neither tobacco nor indigo
are received there. Our commerce is permitted with their Canary
islands under the same conditions.
Themselves, and their colonies, are the actual consumers of
what they receive from us.
Our navigation is free with the kingdom of Spain; foreign goods
being received there in our ships on the same conditions as if
carried in their own, or in the vessels of the country of which such
goods are the manufacture or produce.
_Portugal_ receives favorably our grain and bread, salted fish,
and other salted provisions, wood, tar, pitch and turpentine.
For flax-seed, pot and pearl ash, though not discouraged, there
is little demand.
Our ships pay 20 per cent. on being sold to their subjects, and
are then free-bottoms.
Foreign goods (except those of the East Indies) are received on
the same footing in our vessels as in their own, or any others; that
is to say, on general duties of from 20 to 28 per cent., and,
consequently, our navigation is unobstructed by them. Tobacco, rice,
and meals, are prohibited.
Themselves and their colonies consume what they receive from
us.
These regulations extend to the Azores, Madeira, and the Cape
de Verd islands, except that in these, meals and rice are received
freely.
_France_ receives favorably our bread-stuffs, rice, wood, pot
and pearl ashes.
A duty of 5 sous the quintal, or nearly 4 1/2 cents, is paid on
our tar, pitch, and turpentine. Our whale oils pay 6 livres the
quintal, and are the only foreign whale oils admitted. Our indigo
pays 5 livres the quintal, their own 2 1/2; but a difference of
quality, still more than a difference of duty, prevents its seeking
that market.
Salted beef is received freely for re-exportation; but if for
home consumption, it pays five livres the quintal. Other salted
provisions pay that duty in all cases, and salted fish is made lately
to pay the prohibitory one of twenty livres the quintal.
Our ships are free to carry thither all foreign goods which may
be carried in their own or any other vessels, except tobaccoes not of
our own growth; and they participate with theirs, the exclusive
carriage of our whale oils and tobaccoes.
During their former government, our tobacco was under a
monopoly, but paid no duties; and our ships were freely sold in their
ports and converted into national bottoms. The first national
assembly took from our ships this privilege. They emancipated
tobacco from its monopoly, but subjected it to duties of eighteen
livres, fifteen sous the quintal, carried in their own vessels, and
five livres carried in ours -- a difference more than equal to the
freight of the article.
They and their colonies consume what they receive from us.
_Great Britain_ receives our pot and pearl ashes free, whilst
those of other nations pay a duty of two shillings and three pence
the quintal. There is an equal distinction in favor of our bar iron;
of which article, however, we do not produce enough for our own use.
Woods are free from us, whilst they pay some small duty from other
countries. Indigo and flax-seed are free from all countries. Our
tar and pitch pay eleven pence, sterling, the barrel. From other
alien countries they pay about a penny and a third more.
Our tobacco, for their own consumption, pays one shilling and
three pence, sterling, the pound, custom and excise, besides heavy
expenses of collection; and rice, in the same case, pays seven
shillings and four pence, sterling, the hundred weight; which
rendering it too dear, as an article of common food, it is
consequently used in very small quantity.
Our salted fish and other salted provisions, except bacon, are
prohibited. Bacon and whale oils are under prohibitory duties, so
are our grains, meals, and bread, as to internal consumption, unless
in times of such scarcity as may raise the price of wheat to fifty
shillings, sterling, the quarter, and other grains and meals in
proportion.
Our ships, though purchased and navigated by their own
subjects, are not permitted to be used, even in their trade with us.
While the vessels of other nations are secured by standing
laws, which cannot be altered but by the concurrent will of the three
branches of the British legislature, in carrying thither any produce
or manufacture of the country to which they belong, which may be
lawfully carried in any vessels, ours, with the same prohibition of
what is foreign, are further prohibited by a standing law (12 Car. 2,
18, sect. 3), from carrying thither all and any of our own domestic
productions and manufactures. A subsequent act, indeed, has
authorized their executive to permit the carriage of our own
productions in our own bottoms, at its sole discretion; and the
permission has been given from year to year by proclamation, but
subject every moment to be withdrawn on that single will; in which
event, our vessels having anything on board, stand interdicted from
the entry of all British ports. The disadvantage of a tenure which
may be so suddenly discontinued, was experienced by our merchants on
a late occasion, (*) when an official notification that this law
would be stricly enforced, gave them just apprehensions for the fate
of their vessels and cargoes despatched or destined for the ports of
Great Britain. The minister of that court, indeed, frankly expressed
his personal convictions that the words of the order went farther
than was intended, and so he afterwards officially informed us: but
the embarrassments of the moment were real and great, and the
possibility of their renewal lays our commerce to that country under
the same species of discouragement as to other countries, where it is
regulated by a single legislator; and the distinction is too
remarkable not to be noticed, that our navigation is excluded from
the security of fixed laws, while that security is given to the
navigation of others.
(*) April 12, 1792
Our vessels pay in their ports one shilling and nine pence,
sterling, per ton, light and trinity dues, more than is paid by
British ships, except in the port of London, where they pay the same
as British.
The greater part of what they receive from us, is re-exported
to other countries, under the useless charges of an intermediate
deposit, and double voyage. From tables published in England, and
composed, as is said, from the books of their customhouses, it
appears, that of the indigo imported there in the years 1773, '4, '5,
one-third was re-exported; and from a document of authority, we
learn, that of the rice and tobacco imported there before the war,
four-fifths were re-exported. We are assured, indeed, that the
quantities sent thither for re-exportation since the war, are
considerably diminished, yet less so than reason and national
interest would dictate. The whole of our grain is re-exported when
wheat is below fifty shillings the quarter, and other grains in
proportion.
The _United Netherlands_ prohibit our pickled beef and pork,
meals and bread of all sorts, and lay a prohibitory duty on spirits
distilled from grain.
All other of our productions are received on varied duties,
which may be reckoned, on a medium, at about three per cent.
They consume but a small proportion of what they receive. The
residue is partly forwarded for consumption in the inland parts of
Europe, and partly re-shipped to other maritime countries. On the
latter portion they intercept between us and the consumer, so much of
the value as is absorbed in the charges attending and intermediate
deposit.
Foreign goods, except some East India articles, are received in
vessels of any nation.
Our ships may be sold and neutralized there, with exceptions of
one or two privileges, which somewhat lessen their value.
_Denmark_ lays considerable duties on our tobacco and rice,
carried in their own vessels, and half as much more, if carried in
ours; but the exact amount of these duties is not perfectly known
here. They lay such duties as amount to prohibitions on our indigo
and corn.
_Sweden_ receives favorably our grains and meals, salted
provisions, indigo, and whale oil.
They subject our rice to duties of sixteen mills the pound
weight, carried in their own vessels, and of forty per cent.
additional on that, or twenty-two and four-tenths mills, carried in
ours or any others. Being thus rendered too dear as an article of
common food, little of it is consumed with them. They consume some
of our tobaccoes, which they take circuitously through Great Britain,
levying heavy duties on them also; their duties of entry, town
duties, and excise, being 4 34 dollars the hundred weight, if carried
in their own vessels, and of forty per cent. on that additional, if
carried in our own or any other vessels.
They prohibit altogether our bread, fish, pot and pearl ashes,
flax-seed, tar, pitch, and turpentine, wood (except oak timber and
masts), and all foreign manufactures.
Under so many restrictions and prohibitions, our navigation
with them is reduced to almost nothing.
With our neighbors, an order of things much harder presents
itself.
_Spain_ and _Portugal_ refuse, to all those parts of America
which they govern, all direct intercourse with any people but
themselves. The commodities in mutual demand between them and their
neighbors, must be carried to be exchanged in some port of the
dominant country, and the transportation between that and the subject
state, must be in a domestic bottom.
_France_, by a standing law, permits her West India possessions
to receive directly our vegetables, live provisions, horses, wood,
tar, pitch, turpentine, rice, and maize, and prohibits our other
bread stuff; but a suspension of this prohibition having been left to
the colonial legislatures, in times of scarcity, it was formerly
suspended occasionally, but latterly without interruption.
Our fish and salted provisions (except pork) are received in
their islands under a duty of three colonial livres the quintal, and
our vessels are as free as their own to carry our commodities
thither, and to bring away rum and molasses.
_Great Britain_ admits in her islands our vegetables, live
provisions, horses, wood, tar, pitch, and turpentine, rice and bread
stuff, by a proclamation of her executive, limited always to the term
of a year, but hitherto renewed from year to year. She prohibits our
salted fish and other salted provisions. She does not permit our
vessels to carry thither our own produce. Her vessels alone may take
it from us, and bring in exchange rum, molasses, sugar, coffee,
cocoa-nuts, ginger, and pimento. There are, indeed, some freedoms in
the island of Dominica, but, under such circumstances, as to be
little used by us. In the British continental colonies, and in
Newfoundland, all our productions are prohibited, and our vessels
forbidden to enter their ports. Their governors, however, in times
of distress, have power to permit a temporary importation of certain
articles in their own bottoms, but not in ours.
Our citizens cannot reside as merchants or factors within any
of the British plantations, this being expressly prohibited by the
same statute of 12 Car. 2, c. 18, commonly called the navigation act.
In the _Danish American_ possessions a duty of 5 per cent. is
levied on our corn, corn meal, rice, tobacco, wood, salted fish,
indigo, horses, mules and live stock, and of 10 per cent. on our
flour, salted pork and beef, tar, pitch and turpentine.
In the American islands of the _United Netherlands_ and Sweden,
our vessels and produce are received, subject to duties, not so heavy
as to have been complained of; but they are heavier in the Dutch
possessions on the continent.
To sum up these restrictions, so far as they are important:
FIRST. In Europe --
Our bread stuff is at most times under prohibitory duties in
England, and considerably dutied on re-exportation from Spain to her
colonies.
Our tobaccoes are heavily dutied in England, Sweden and France,
and prohibited in Spain and Portugal.
Our rice is heavily dutied in England and Sweden, and
prohibited in Portugal.
Our fish and salted provisions are prohibited in England, and
under prohibitory duties in France.
Our whale oils are prohibited in England and Portugal._And our
vessels are denied naturalization in England, and of late in France.
SECOND. In the West Indies --
All intercourse is prohibited with the possessions of Spain and
Portugal.
Our salted provisions and fish are prohibited by England.
Our salted pork and bread stuff (except maize) are received
under temporary laws only, in the dominions of France, and our salted
fish pays there a weighty duty.
THIRD. In the article of navigation --
Our own carriage of our own tobacco is heavily dutied in
Sweden, and lately in France.
We can carry no article, not of our own production, to the
British ports in Europe. Nor even our own produce to her American
possessions.
Such being the restrictions on the commerce and navigation of
the United States; the question is, in what way they may best be
removed, modified or counteracted?
As to commerce, two methods occur. 1. By friendly arrangements
with the several nations with whom these restrictions exist; Or, 2.
By the separate act of our own legislatures for countervailing their
effects.
There can be no doubt but that of these two, friendly
arrangements is the most eligible. Instead of embarrassing commerce
under piles of regulating laws, duties, and prohibitions, could it be
relieved from all its shackles in all parts of the world, could every
country be employed in producing that which nature has best fitted it
to produce, and each be free to exchange with others mutual
surplusses for mutual wants, the greatest mass possible would then be
produced of those things which contribute to human life and human
happiness; the numbers of mankind would be increased, and their
condition bettered.
Would even a single nation begin with the United States this
system of free commerce, it would be advisable to begin it with that
nation; since it is one by one only that it can be extended to all.
Where the circumstances of either party render it expedient to levy a
revenue, by way of impost, on commerce, its freedom might be
modified, in that particular, by mutual and equivalent measures,
preserving it entire in all others.
Some nations, not yet ripe for free commerce in all its extent,
might still be willing to mollify its restrictions and regulations
for us, in proportion to the advantages which an intercourse with us
might offer. Particularly they may concur with us in reciprocating
the duties to be levied on each side, or in compensating any excess
of duty by equivalent advantages of another nature. Our commerce is
certainly of a character to entitle it to favor in most countries.
The commodities we offer are either necessaries of life, or materials
for manufacture, or convenient subjects of revenue; and we take in
exchange, either manufactures, when they have received the last
finish of art and industry, or mere luxuries. Such customers may
reasonably expect welcome and friendly treatment at every market.
Customers, too, whose demands, increasing with their wealth and
population, must very shortly give full employment to the whole
industry of any nation whatever, in any line of supply they may get
into the habit of calling for from it.
But should any nation, contrary to our wishes, suppose it may
better find its advantage by continuing its system of prohibitions,
duties and regulations, it behooves us to protect our citizens, their
commerce and navigation, by counter prohibitions, duties and
regulations, also. Free commerce and navigation are not to be given
in exchange for restrictions and vexations; nor are they likely to
produce a relaxation of them.
Our navigation involves still higher considerations. As a
branch of industry, it is valuable, but as a resource of defence,
essential.
Its value, as a branch of industry, is enhanced by the
dependence of so many other branches on it. In times of general
peace it multiplies competitors for employment in transportation, and
so keeps that at its proper level; and in times of war, that is to
say, when those nations who may be our principal carriers, shall be
at war with each other, if we have not within ourselves the means of
transportation, our produce must be exported in belligerent vessels,
at the increased expense of war-freight and insurance, and the
articles which will not bear that, must perish on our hands.
But it is as a resource of defence that our navigation will
admit neither negligence nor forbearance. The position and
circumstances of the United States leave them nothing to fear on
their land-board, and nothing to desire beyond their present rights.
But on their seaboard, they are open to injury, and they have there,
too, a commerce which must be protected. This can only be done by
possessing a respectable body of citizen-seamen, and of artists and
establishments in readiness for ship-building.
Were the ocean, which is the common property of all, open to
the industry of all, so that every person and vessel should be free
to take employment wherever it could be found, the United States
would certainly not set the example of appropriating to themselves,
exclusively, any portion of the common stock of occupation. They
would rely on the enterprise and activity of their citizens for a due
participation of the benefits of the seafaring business, and for
keeping the marine class of citizens equal to their object. But if
particular nations grasp at undue shares, and, more especially, if
they seize on the means of the United States, to convert them into
aliment for their own strength, and withdraw them entirely from the
support of those to whom they belong, defensive and protecting
measures become necessary on the part of the nation whose marine
resources are thus invaded; or it will be disarmed of its defence;
its productions will lie at the mercy of the nation which has
possessed itself exclusively of the means of carrying them, and its
politics may be influenced by those who command its commerce. The
carriage of our own commodities, if once established in another
channel, cannot be resumed in the moment we may desire. If we lose
the seamen and artists whom it now occupies, we lose the present
means of marine defence, and time will be requisite to raise up
others, when disgrace or losses shall bring home to our feelings the
error of having abandoned them. The materials for maintaining our
due share of navigation, are ours in abundance. And, as to the mode
of using them, we have only to adopt the principles of those who put
us on the defensive, or others equivalent and better fitted to our
circumstances.
The following principles, being founded in reciprocity, appear
perfectly just, and to offer no cause of complaint to any nation:
1. Where a nation imposes high duties on our productions, or
prohibits them altogether, it may be proper for us to do the same by
theirs; first burdening or excluding those productions which they
bring here, in competition with our own of the same kind; selecting
next, such manufactures as we take from them in greatest quantity,
and which, at the same time, we could the soonest furnish to
ourselves, or obtain from other countries; imposing on them duties
lighter at first, but heavier and heavier afterwards, as other
channels of supply open. Such duties having the effect of indirect
encouragement to domestic manufactures of the same kind, may induce
the manufacturer to come himself into these States, where cheaper
subsistence, equal laws, and a vent of his wares, free of duty, may
ensure him the highest profits from his skill and industry. And
here, it would be in the power of the State governments to co-operate
essentially, by opening the resources of encouragement which are
under their control, extending them liberally to artists in those
particular branches of manufacture for which their soil, climate,
population and other circumstances have matured them, and fostering
the precious efforts and progress of _household_ manufacture, by some
patronage suited to the nature of its objects, guided by the local
informations they possess, and guarded against abuse by their
presence and attentions. The oppressions on our agriculture, in
foreign ports, would thus be made the occasion of relieving it from a
dependence on the councils and conduct of others, and of promoting
arts, manufactures and population at home.
2. Where a nation refuses permission to our merchants and
factors to reside within certain parts of their dominions, we may, if
it should be thought expedient, refuse residence to theirs in any and
every part of ours, or modify their transactions.
3. Where a nation refuses to receive in our vessels any
productions but our own, we may refuse to receive, in theirs, any but
their own productions. The first and second clauses of the bill
reported by the committee, are well formed to effect this object.
4. Where a nation refuses to consider any vessel as ours which
has not been built within our territories, we should refuse to
consider as theirs, any vessel not built within their territories.
5. Where a nation refuses to our vessels the carriage even of
our own productions, to certain countries under their domination, we
might refuse to theirs of every description, the carriage of the same
productions to the same countries. But as justice and good
neighborhood would dictate that those who have no part in imposing
the restriction on us, should not be the victims of measures adopted
to defeat its effect, it may be proper to confine the restrictions to
vessels owned or navigated by any subjects of the same dominant
power, other than the inhabitants of the country to which the said
productions are to be carried. And to prevent all inconvenience to
the said inhabitants, and to our own, by too sudden a check on the
means of transportation, we may continue to admit the vessels marked
for future exclusion, on an advanced tonnage, and for such length of
time only, as may be supposed necessary to provide against that
inconvenience.
The establishment of some of these principles by Great Britain,
alone, has already lost to us in our commerce with that country and
its possessions, between eight and nine hundred vessels of near
40,000 tons burden, according to statements from official materials,
in which they have confidence. This involves a proportional loss of
seamen, shipwrights, and ship-building, and is too serious a loss to
admit forbearance of some effectual remedy.
It is true we must expect some inconvenience in practice from
the establishment of discriminating duties. But in this, as in so
many other cases, we are left to choose between two evils. These
inconveniences are nothing when weighed against the loss of wealth
and loss of force, which will follow our perseverance in the plan of
indiscrimination. When once it shall be perceived that we are either
in the system or in the habit of giving equal advantages to those who
extinguish our commerce and navigation by duties and prohibitions, as
to those who treat both with liberality and justice, liberality and
justice will be converted by all into duties and prohibitions. It is
not to the moderation and justice of others we are to trust for fair
and equal access to market with our productions, or for our due share
in the transportation of them; but to our own means of independence,
and the firm will to use them. Nor do the inconveniences of
discrimination merit consideration. Not one of the nations before
mentioned, perhaps not a commercial nation on earth, is without them.
In our case one distinction alone will suffice: that is to say,
between nations who favor our productions and navigation, and those
who do not favor them. One set of moderate duties, say the present
duties, for the first, and a fixed advance on these as to some
articles, and prohibitions as to others, for the last.
Still, it must be repeated that friendly arrangements are
preferable with all who will come into them; and that we should carry
into such arrangements all the liberality and spirit of accommodation
which the nature of the case will admit.
France has, of her own accord, proposed negotiations for
improving, by a new treaty on fair and equal principles, the
commercial relations of the two countries. But her internal
disturbances have hitherto prevented the prosecution of them to
effect, though we have had repeated assurances of a continuance of
the disposition.
Proposals of friendly arrangement have been made on our part,
by the present government, to that of Great Britain, as the message
states; but, being already on as good a footing in law, and a better
in fact, than the most favored nation, they have not, as yet,
discovered any disposition to have it meddled with.
We have no reason to conclude that friendly arrangements would
be declined by the other nations, with whom we have such commercial
intercourse as may render them important. In the meanwhile, it would
rest with the wisdom of Congress to determine whether, as to those
nations, they will not surcease _ex parte_ regulations, on the
reasonable presumption that they will concur in doing whatever
justice and moderation dictate should be done.
_Draft of the Kentucky Resolutions_
October 1798
1. _Resolved_, That the several States composing the United
States of America, are not united on the principle of unlimited
submission to their General Government; but that, by a compact under
the style and title of a Constitution for the United States, and of
amendments thereto, they constituted a General Government for special
purposes, -- delegated to that government certain definite powers,
reserving, each State to itself, the residuary mass of right to their
own self-government; and that whensoever the General Government
assumes undelegated powers, its acts are unauthoritative, void, and
of no force; that to this compact each State acceded as a State, and
is an integral party, its co-States forming, as to itself, the other
party: that the government created by this compact was not made the
exclusive or final judge of the extent of the powers delegated to
itself; since that would have made its discretion, and not the
Constitution, the measure of its powers; but that, as in all other
cases of compact among powers having no common judge, each party has
an equal right to judge for itself, as well of infractions as of the
mode and measure of redress.
2. _Resolved_, That the Constitution of the United States,
having delegated to Congress a power to punish treason,
counterfeiting the securities and current coin of the United States,
piracies, and felonies committed on the high seas, and offences
against the law of nations, and no other crimes whatsoever; and it
being true as a general principle, and one of the amendments to the
Constitution having also declared, that "the powers not delegated to
the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people,"
therefore the act of Congress, passed on the 14th day of July, 1798,
and intituled "An Act in addition to the act intituled An Act for the
punishment of certain crimes against the United States," as also the
act passed by them on the -- day of June, 1798, intituled "An Act to
punish frauds committed on the bank of the United States," (and all
their other acts which assume to create, define, or punish crimes,
other than those so enumerated in the Constitution,) are altogether
void, and of no force; and that the power to create, define, and
punish such other crimes is reserved, and, of right, appertains
solely and exclusively to the respective States, each within its own
territory.
3. _Resolved_, That it is true as a general principle, and is
also expressly declared by one of the amendments to the Constitution,
that "the powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people;" and that no power over the
freedom of religion, freedom of speech, or freedom of the press being
delegated to the United States by the Constitution, nor prohibited by
it to the States, all lawful powers respecting the same did of right
remain, and were reserved to the States or the people: that thus was
manifested their determination to retain to themselves the right of
judging how far the licentiousness of speech and of the press may be
abridged without lessening their useful freedom, and how far those
abuses which cannot be separated from their use should be tolerated,
rather than the use be destroyed. And thus also they guarded against
all abridgment by the United States of the freedom of religious
opinions and exercises, and retained to themselves the right of
protecting the same, as this State, by a law passed on the general
demand of its citizens, had already protected them from all human
restraint or interference. And that in addition to this general
principle and express declaration, another and more special provision
has been made by one of the amendments to the Constitution, which
expressly declares, that "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,
or abridging the freedom of speech or of the press:" thereby guarding
in the same sentence, and under the same words, the freedom of
religion, of speech, and of the press: insomuch, that whatever
violated either, throws down the sanctuary which covers the others,
and that libels, falsehood, and defamation, equally with heresy and
false religion, are withheld from the cognizance of federal
tribunals. That, therefore, the act of Congress of the United
States, passed on the 14th day of July, 1798, intituled "An Act in
addition to the act intituled An Act for the punishment of certain
crimes against the United States," which does abridge the freedom of
the press, is not law, but is altogether void, and of no force.
4. _Resolved_, That alien friends are under the jurisdiction
and protection of the laws of the State wherein they are: that no
power over them has been delegated to the United States, nor
prohibited to the individual States, distinct from their power over
citizens. And it being true as a general principle, and one of the
amendments to the Constitution having also declared, that "the powers
not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people," the act of the Congress of the
United States, passed on the -- day of July, 1798, intituled "An Act
concerning aliens," which assumes powers over alien friends, not
delegated by the Constitution, is not law, but is altogether void,
and of no force.
5. _Resolved_, That in addition to the general principle, as
well as the express declaration, that powers not delegated are
reserved, another and more special provision, inserted in the
Constitution from abundant caution, has declared that "the migration
or importation of such persons as any of the States now existing
shall think proper to admit, shall not be prohibited by the Congress
prior to the year 1808;" that this commonwealth does admit the
migration of alien friends, described as the subject of the said act
concerning aliens: that a provision against prohibiting their
migration, is a provision against all acts equivalent thereto, or it
would be nugatory: that to remove them when migrated, is equivalent
to a prohibition of their migration, and is, therefore, contrary to
the said provision of the Constitution, and void.
6. _Resolved_, That the imprisonment of a person under the
protection of the laws of this commonwealth, on his failure to obey
the simple _order_ of the President to depart out of the United
States, as is undertaken by said act intituled "An Act concerning
aliens," is contrary to the Constitution, one amendment to which has
provided that "no person shall be deprived of liberty without due
process of law;" and that another having provided that "in all
criminal prosecutions the accused shall enjoy the right to public
trial by an impartial jury, to be informed of the nature and cause of
the accusation, to be confronted with the witnesses against him, to
have compulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence," the same act,
undertaking to authorize the President to remove a person out of the
United States, who is under the protection of the law, on his own
suspicion, without accusation, without jury, without public trial,
without confrontation of the witnesses against him, without hearing
witnesses in his favor, without defence, without counsel, is contrary
to the provision also of the Constitution, is therefore not law, but
utterly void, and of no force: that transferring the power of judging
any person, who is under the protection of the laws, from the courts
to the President of the United States, as is undertaken by the same
act concerning aliens, is against the article of the Constitution
which provides that "the judicial power of the United States shall be
vested in courts, the judges of which shall hold their offices during
good behavior;" and that the said act is void for that reason also.
And it is further to be noted, that this transfer of judiciary power
is to that magistrate of the General Government who already possesses
all the Executive, and a negative on all legislative powers.
7. _Resolved_, That the construction applied by the General
Government (as is evidenced by sundry of their proceedings) to those
parts of the Constitution of the United States which delegate to
Congress a power "to lay and collect taxes, duties, imports, and
excises, to pay the debts, and provide for the common defence and
general welfare of the United States," and "to make all laws which
shall be necessary and proper for carrying into execution the powers
vested by the Constitution in the government of the United States, or
in any department or officer thereof," goes to the destruction of all
limits prescribed to their power by the Constitution: that words
meant by the instrument to be subsidiary only to the execution of
limited powers, ought not to be so construed as themselves to give
unlimited powers, nor a part to be so taken as to destroy the whole
residue of that instrument: that the proceedings of the General
Government under color of these articles, will be a fit and necessary
subject of revisal and correction, at a time of greater tranquillity,
while those specified in the preceding resolutions call for immediate
redress.
8th. _Resolved_, That a committee of conference and
correspondence be appointed, who shall have in charge to communicate
the preceding resolutions to the legislatures of the several States;
to assure them that this commonwealth continues in the same esteem of
their friendship and union which it has manifested from that moment
at which a common danger first suggested a common union: that it
considers union, for specified national purposes, and particularly to
those specified in their late federal compact, to be friendly to the
peace, happiness and prosperity of all the States: that faithful to
that compact, according to the plain intent and meaning in which it
was understood and acceded to by the several parties, it is sincerely
anxious for its preservation: that it does also believe, that to take
from the States all the powers of self-government and transfer them
to a general and consolidated government, without regard to the
special delegations and reservations solemnly agreed to in that
compact, is not for the peace, happiness or prosperity of these
States; and that therefore this commonwealth is determined, as it
doubts not its co-States are, to submit to undelegated, and
consequently unlimited powers in no man, or body of men on earth:
that in cases of an abuse of the delegated powers, the members of the
General Government, being chosen by the people, a change by the
people would be the constitutional remedy; but, where powers are
assumed which have not been delegated, a nullification of the act is
the rightful remedy: that every State has a natural right in cases
not within the compact, (casus non f;oederis,) to nullify of their
own authority all assumptions of power by others within their limits:
that without this right, they would be under the dominion, absolute
and unlimited, of whosoever might exercise this right of judgment for
them: that nevertheless, this commonwealth, from motives of regard
and respect for its co-States, has wished to communicate with them on
the subject: that with them alone it is proper to communicate, they
alone being parties to the compact, and solely authorized to judge in
the last resort of the powers exercised under it, Congress being not
a party, but merely the creature of the compact, and subject as to
its assumptions of power to the final judgment of those by whom, and
for whose use itself and its powers were all created and modified:
that if the acts before specified should stand, these conclusions
would flow from them; that the General Government may place any act
they think proper on the list of crimes, and punish it themselves
whether enumerated or not enumerated by the Constitution as
cognizable by them: that they may transfer its cognizance to the
President, or any other person, who may himself be the accuser,
counsel, judge and jury, whose _suspicions_ may be the evidence, his
_order_ the sentence, his _officer_ the executioner, and his breast
the sole record of the transaction: that a very numerous and valuable
description of the inhabitants of these States being, by this
precedent, reduced, as outlaws, to the absolute dominion of one man,
and the barrier of the Constitution thus swept away from us all, no
rampart now remains against the passions and the powers of a majority
in Congress to protect from a like exportation, or other more
grievous punishment, the minority of the same body, the legislatures,
judges, governors, and counsellors of the States, nor their other
peaceable inhabitants, who may venture to reclaim the constitutional
rights and liberties of the States and people, or who for other
causes, good or bad, may be obnoxious to the views, or marked by the
suspicions of the President, or be thought dangerous to his or their
election, or other interests, public or personal: that the friendless
alien has indeed been selected as the safest subject of a first
experiment; but the citizen will soon follow, or rather, has already
followed, for already has a sedition act marked him as its prey: that
these and successive acts of the same character, unless arrested at
the threshold, necessarily drive these States into revolution and
blood, and will furnish new calumnies against republican government,
and new pretexts for those who wish it to be believed that man cannot
be governed but by a rod of iron: that it would be a dangerous
delusion were a confidence in the men of our choice to silence our
fears for the safety of our rights: that confidence is everywhere the
parent of despotism -- free government is founded in jealousy, and
not in confidence; it is jealousy and not confidence which prescribes
limited constitutions, to bind down those whom we are obliged to
trust with power: that our Constitution has accordingly fixed the
limits to which, and no further, our confidence may go; and let the
honest advocate of confidence read the alien and sedition acts, and
say if the Constitution has not been wise in fixing limits to the
government it created, and whether we should be wise in destroying
those limits. Let him say what the government is, if it be not a
tyranny, which the men of our choice have conferred on our President,
and the President of our choice has assented to, and accepted over
the friendly strangers to whom the mild spirit of our country and its
laws have pledged hospitality and protection: that the men of our
choice have more respected the bare _suspicions_ of the President,
than the solid right of innocence, the claims of justification, the
sacred force of truth, and the forms and substance of law and
justice. In questions of power, then, let no more be heard of
confidence in man, but bind him down from mischief by the chains of
the Constitution. That this commonwealth does therefore call on its
co-States for an expression of their sentiments on the acts
concerning aliens, and for the punishment of certain crimes herein
before specified, plainly declaring whether these acts are or are not
authorized by the federal compact. And it doubts not that their
sense will be so announced as to prove their attachment unaltered to
limited government, whether general or particular. And that the
rights and liberties of their co-States will be exposed to no dangers
by remaining embarked in a common bottom with their own. That they
will concur with this commonwealth in considering the said acts as so
palpably against the Constitution as to amount to an undisguised
declaration that that compact is not meant to be the measure of the
powers of the General Government, but that it will proceed in the
exercise over these States, of all powers whatsoever: that they will
view this as seizing the rights of the States, and consolidating them
in the hands of the General Government, with a power assumed to bind
the States, not merely as the cases made federal, (casus f;oederis,)
but in all cases whatsoever, by laws made, not with their consent,
but by others against their consent: that this would be to surrender
the form of government we have chosen, and live under one deriving
its powers from its own will, and not from our authority; and that
the co-States, recurring to their natural right in cases not made
federal, will concur in declaring these acts void, and of no force,
and will each take measures of its own for providing that neither
these acts, nor any others of the General Government not plainly and
intentionally authorized by the Constitution, shall be exercised
within their respective territories.
9th. _Resolved_, That the said committee be authorized to
communicate by writing or personal conferences, at any times or
places whatever, with any person or person who may be appointed by
any one or more co-States to correspond or confer with them; and that
they lay their proceedings before the next session of Assembly.
_Report of the Commissioners for the University of Virginia_
August 4, 1818
The commissioners for the University of Virginia, having met,
as by law required, at the tavern, in Rockfish Gap, on the Blue
Ridge, on the first day of August, of this present year, 1818; and
having formed a board, proceeded on that day to the discharge of the
duties assigned to them by the act of the Legislature, entitled "An
act, appropriating part of the revenue of the literary fund, and for
other purposes;" and having continued their proceedings by
adjournment, from day to day, to Tuesday, the 4th day of August, have
agreed to a report on the several matters with which they were
charged, which report they now respectfully address and submit to the
Legislature of the State.
The first duty enjoined on them, was to enquire and report a
site, in some convenient and proper part of the State, for an
university, to be called the "University of Virginia." In this
enquiry, they supposed that the governing considerations should be
the healthiness of the site, the fertility of the neighboring
country, and its centrality to the white population of the whole
State. For, although the act authorized and required them to receive
any voluntary contributions, whether conditional or absolute, which
might be offered through them to the President and Directors of the
Literary Fund, for the benefit of the University, yet they did not
consider this as establishing an auction, or as pledging the location
to the highest bidder.
Three places were proposed, to wit: Lexington, in the county of
Rockbridge, Staunton, in the county of Augusta, and the Central
College, in the county of Albemarle. Each of these was
unexceptionable as to healthiness and fertility. It was the degree
of centrality to the white population of the State which alone then
constituted the important point of comparison between these places;
and the Board, after full enquiry, and impartial and mature
consideration, are of opinion, that the central point of the white
population of the State is nearer to the Central College than to
either Lexington or Staunton, by great and important differences; and
all other circumstances of the place in general being favorable to
it, as a position for an university, they do report the Central
College, in Albemarle, to be a convenient and proper part of the
State for the University of Virginia.
2. The Board having thus agreed on a proper site for the
University, to be reported to the Legislature, proceed to the second
of the duties assigned to them -- that of proposing a plan for its
buildings -- and they are of opinion that it should consist of
distinct houses or pavilions, arranged at proper distances on each
side of a lawn of a proper breadth, and of indefinite extent, in one
direction, at least; in each of which should be a lecturing room,
with from two to four apartments, for the accommodation of a
professor and his family; that these pavilions should be united by a
range of dormitories, sufficient each for the accommodation of two
students only, this provision being deemed advantageous to morals, to
order, and to uninterrupted study; and that a passage of some kind,
under cover from the weather, should give a communication along the
whole range. It is supposed that such pavilions, on an average of
the larger and smaller, will cost each about $5,000; each dormitory
about $350, and hotels of a single room, for a refectory, and two
rooms for the tenant, necessary for dieting the students, will cost
about $3500 each. The number of these pavilions will depend on the
number of professors, and that of the dormitories and hotels on the
number of students to be lodged and dieted. The advantages of this
plan are: greater security against fire and infection; tranquillity
and comfort to the professors and their families thus insulated;
retirement to the students; and the admission of enlargement to any
degree to which the institution may extend in future times. It is
supposed probable, that a building of somewhat more size in the
middle of the grounds may be called for in time, in which may be
rooms for religious worship, under such impartial regulations as the
Visitors shall prescribe, for public examinations, for a library, for
the schools of music, drawing, and other associated purposes.
3, 4. In proceeding to the third and fourth duties prescribed
by the Legislature, of reporting "the branches of learning, which
should be taught in the University, and the number and description of
the professorships they will require," the Commissioners were first
to consider at what point it was understood that university education
should commence? Certainly not with the alphabet, for reasons of
expediency and impracticability, as well from the obvious sense of
the Legislature, who, in the same act, make other provision for the
primary instruction of the poor children, expecting, doubtless, that
in other cases it would be provided by the parent, or become,
perhaps, subject of future and further attention of the Legislature.
The objects of this primary education determine its character and
limits. These objects would be,
To give to every citizen the information he needs for the
transaction of his own business;
To enable him to calculate for himself, and to express and
preserve his ideas, his contracts and accounts, in writing;
To improve, by reading, his morals and faculties;
To understand his duties to his neighbors and country, and to
discharge with competence the functions confided to him by either;
To know his rights; to exercise with order and justice those he
retains; to choose with discretion the fiduciary of those he
delegates; and to notice their conduct with diligence, with candor,
and judgment;
And, in general, to observe with intelligence and faithfulness
all the social relations under which he shall be placed.
To instruct the mass of our citizens in these, their rights,
interests and duties, as men and citizens, being then the objects of
education in the primary schools, whether private or public, in them
should be taught reading, writing and numerical arithmetic, the
elements of mensuration, (useful in so many callings,) and the
outlines of geography and history. And this brings us to the point
at which are to commence the higher branches of education, of which
the Legislature require the development; those, for example, which
are,
To form the statesmen, legislators and judges, on whom public
prosperity and individual happiness are so much to depend;
To expound the principles and structure of government, the laws
which regulate the intercourse of nations, those formed municipally
for our own government, and a sound spirit of legislation, which,
banishing all arbitrary and unnecessary restraint on individual
action, shall leave us free to do whatever does not violate the equal
rights of another;
To harmonize and promote the interests of agriculture,
manufactures and commerce, and by well informed views of political
economy to give a free scope to the public industry;
To develop the reasoning faculties of our youth, enlarge their
minds, cultivate their morals, and instill into them the precepts of
virtue and order;
To enlighten them with mathematical and physical sciences,
which advance the arts, and administer to the health, the
subsistence, and comforts of human life;
And, generally, to form them to habits of reflection and
correct action, rendering them examples of virtue to others, and of
happiness within themselves.
These are the objects of that higher grade of education, the
benefits and blessings of which the Legislature now propose to
provide for the good and ornament of their country, the gratification
and happiness of their fellow-citizens, of the parent especially, and
his progeny, on which all his affections are concentrated.
In entering on this field, the Commissioners are aware that
they have to encounter much difference of opinion as to the extent
which it is expedient that this institution should occupy. Some good
men, and even of respectable information, consider the learned
sciences as useless acquirements; some think that they do not better
the condition of man; and others that education, like private and
individual concerns, should be left to private individual effort; not
reflecting that an establishment embracing all the sciences which may
be useful and even necessary in the various vocations of life, with
the buildings and apparatus belonging to each, are far beyond the
reach of individual means, and must either derive existence from
public patronage, or not exist at all. This would leave us, then,
without those callings which depend on education, or send us to other
countries to seek the instruction they require. But the
Commissioners are happy in considering the statute under which they
are assembled as proof that the Legislature is far from the
abandonment of objects so interesting. They are sensible that the
advantages of well-directed education, moral, political and
economical, are truly above all estimate. Education generates habits
of application, of order, and the love of virtue; and controls, by
the force of habit, any innate obliquities in our moral organization.
We should be far, too, from the discouraging persuasion that man is
fixed, by the law of his nature, at a given point; that his
improvement is a chimera, and the hope delusive of rendering
ourselves wiser, happier or better than our forefathers were. As
well might it be urged that the wild and uncultivated tree, hitherto
yielding sour and bitter fruit only, can never be made to yield
better; yet we know that the grafting art implants a new tree on the
savage stock, producing what is most estimable both in kind and
degree. Education, in like manner, engrafts a new man on the native
stock, and improves what in his nature was vicious and perverse into
qualities of virtue and social worth. And it cannot be but that each
generation succeeding to the knowledge acquired by all those who
preceded it, adding to it their own acquisitions and discoveries, and
handing the mass down for successive and constant accumulation, must
advance the knowledge and well-being of mankind, not _infinitely_, as
some have said, but _indefinitely_, and to a term which no one can
fix and foresee. Indeed, we need look back half a century, to times
which many now living remember well, and see the wonderful advances
in the sciences and arts which have been made within that period.
Some of these have rendered the elements themselves subservient to
the purposes of man, have harnessed them to the yoke of his labors,
and effected the great blessings of moderating his own, of
accomplishing what was beyond his feeble force, and extending the
comforts of life to a much enlarged circle, to those who had before
known its necessaries only. That these are not the vain dreams of
sanguine hope, we have before our eyes real and living examples.
What, but education, has advanced us beyond the condition of our
indigenous neighbors? And what chains them to their present state of
barbarism and wretchedness, but a bigotted veneration for the
supposed superlative wisdom of their fathers, and the preposterous
idea that they are to look backward for better things, and not
forward, longing, as it should seem, to return to the days of eating
acorns and roots, rather than indulge in the degeneracies of
civilization? And how much more encouraging to the achievements of
science and improvement is this, than the desponding view that the
condition of man cannot be ameliorated, that what has been must ever
be, and that to secure ourselves where we are, we must tread with
awful reverence in the footsteps of our fathers. This doctrine is
the genuine fruit of the alliance between Church and State; the
tenants of which, finding themselves but too well in their present
condition, oppose all advances which might unmask their usurpations,
and monopolies of honors, wealth, and power, and fear every change,
as endangering the comforts they now hold. Nor must we omit to
mention, among the benefits of education, the incalculable advantage
of training up able counsellors to administer the affairs of our
country in all its departments, legislative, executive and judiciary,
and to bear their proper share in the councils of our national
government; nothing more than education advancing the prosperity, the
power, and the happiness of a nation.
Encouraged, therefore, by the sentiments of the Legislature,
manifested in this statute, we present the following tabular
statement of the branches of learning which we think should be taught
in the University, forming them into groups, each of which are within
the powers of a single professor:
I. Languages, ancient:
Latin,
Greek,
Hebrew.
II. Languages, modern:
French,
Spanish,
Italian,
German,
Anglo-Saxon.
III. Mathematics, pure:
Algebra,
Fluxions,
Geometry, Elementary, Transcendental.
Architecture, Military, Naval.
IV. Physico-Mathematics:
Mechanics,
Statics,
Dynamics,
Pneumatics,
Acoustics,
Optics,
Astronomy,
Geography.
V. Physics, or Natural Philosophy:
Chemistry,
Mineralogy.
VI. Botany, Zoology.
VII. Anatomy, Medicine.
VIII. Government,
Political Economy,
Law of Nature and Nations,
History, being interwoven with Politics and Law.
IX. Law, municipal.
X. Ideology,
General Grammar,
Ethics, Rhetoric,
Belles Lettres,and the fine arts.
Some of the terms used in this table being subject to a
difference of acceptation, it is proper to define the meaning and
comprehension intended to be given them here:
Geometry, Elementary, is that of straight lines and of the
circle.
Transcendental, is that of all other curves; it includes, of
course, _Projectiles_, a leading branch of the military art.
Military Architecture includes Fortification, another branch of
that art.
Statics respect matter generally, in a state of rest, and
include Hydrostatics, or the laws of fluids particularly, at rest or
in equilibrio.
Dynamics, used as a general term, include
Dynamics proper, or the laws of _solids_ in motion; and
Hydrodynamics, or Hydraulics, those of _fluids_ in motion.
Pneumatics teach the theory of air, its weight, motion,
condensation, rarefaction, &c.
Acoustics, or Phonics, the theory of sound.
Optics, the laws of light and vision.
Physics, or Physiology, in a general sense, mean the doctrine
of the physical objects of our senses.
Chemistry is meant, with its other usual branches, to
comprehend the theory of agriculture.
Mineralogy, in addition to its peculiar subjects, is here
understood to embrace what is real in geology.
Ideology is the doctrine of thought.
General Grammar explains the construction of language.
Some articles in this distribution of sciences will need
observation. A professor is proposed for ancient languages, the
Latin, Greek, and Hebrew, particularly; but these languages being the
foundation common to all the sciences, it is difficult to foresee
what may be the extent of this school. At the same time, no greater
obstruction to industrious study could be proposed than the presence,
the intrusions and the noisy turbulence of a multitude of small boys;
and if they are to be placed here for the rudiments of the languages,
they may be so numerous that its character and value as an University
will be merged in those of a Grammar school. It is, therefore,
greatly to be wished, that preliminary schools, either on private or
public establishment, could be distributed in districts through the
State, as preparatory to the entrance of students into the
University. The tender age at which this part of education
commences, generally about the tenth year, would weigh heavily with
parents in sending their sons to a school so distant as the central
establishment would be from most of them. Districts of such extent
as that every parent should be within a day's journey of his son at
school, would be desirable in cases of sickness, and convenient for
supplying their ordinary wants, and might be made to lessen sensibly
the expense of this part of their education. And where a sparse
population would not, within such a compass, furnish subjects
sufficient to maintain a school, a competent enlargement of district
must, of necessity, there be submitted to. At these district schools
or colleges, boys should be rendered able to read the easier authors,
Latin and Greek. This would be useful and sufficient for many not
intended for an University education. At these, too, might be taught
English grammar, the higher branches of numerical arithmetic, the
geometry of straight lines and of the circle, the elements of
navigation, and geography to a sufficient degree, and thus afford to
greater numbers the means of being qualified for the various
vocations of life, needing more instruction than merely menial or
praedial labor, and the same advantages to youths whose education may
have been neglected until too late to lay a foundation in the learned
languages. These institutions, intermediate between the primary
schools and University, might then be the passage of entrance for
youths into the University, where their classical learning might be
critically completed, by a study of the authors of highest degree;
and it is at this stage only that they should be received at the
University. Giving then a portion of their time to a finished
knowledge of the Latin and Greek, the rest might be appropriated to
the modern languages, or to the commencement of the course of science
for which they should be destined. This would generally be about the
fifteenth year of their age, when they might go with more safety and
contentment to that distance from their parents. Until this
preparatory provision shall be made, either the University will be
overwhelmed with the grammar school, or a separate establishment,
under one or more ushers, for its lower classes, will be advisable,
at a mile or two distant from the general one; where, too, may be
exercised the stricter government necessary for young boys, but
unsuitable for youths arrived at years of discretion.
The considerations which have governed the specification of
languages to be taught by the professor of modern languages were,
that the French is the language of general intercourse among nations,
and as a depository of human science, is unsurpassed by any other
language, living or dead; that the Spanish is highly interesting to
us, as the language spoken by so great a portion of the inhabitants
of our continents, with whom we shall probably have great intercourse
ere long, and is that also in which is written the greater part of
the earlier history of America. The Italian abounds with works of
very superior order, valuable for their matter, and still more
distinguished as models of the finest taste in style and composition.
And the German now stands in a line with that of the most learned
nations in richness of erudition and advance in the sciences. It is
too of common descent with the language of our own country, a branch
of the same original Gothic stock, and furnishes valuable
illustrations for us. But in this point of view, the Anglo-Saxon is
of peculiar value. We have placed it among the modern languages,
because it is in fact that which we speak, in the earliest form in
which we have knowledge of it. It has been undergoing, with time,
those gradual changes which all languages, ancient and modern, have
experienced; and even now needs only to be printed in the modern
character and orthography to be intelligible, in a considerable
degree, to an English reader. It has this value, too, above the
Greek and Latin, that while it gives the radix of the mass of our
language, they explain its innovations only. Obvious proofs of this
have been presented to the modern reader in the disquisitions of Horn
Tooke; and Fortescue Aland has well explained the great instruction
which may be derived from it to a full understanding of our ancient
common law, on which, as a stock, our whole system of law is
engrafted. It will form the first link in the chain of an historical
review of our language through all its successive changes to the
present day, will constitute the foundation of that critical
instruction in it which ought to be found in a seminary of general
learning, and thus reward amply the few weeks of attention which
would alone be requisite for its attainment; a language already
fraught with all the eminent science of our parent country, the
future vehicle of whatever we may ourselves achieve, and destined to
occupy so much space on the globe, claims distinguished attention in
American education.
Medicine, where fully taught, is usually subdivided into
several professorships, but this cannot well be without the accessory
of an hospital, where the student can have the benefit of attending
clinical lectures, and of assisting at operations of surgery. With
this accessory, the seat of our University is not yet prepared,
either by its population or by the numbers of poor who would leave
their own houses, and accept of the charities of an hospital. For
the present, therefore, we propose but a single professor for both
medicine and anatomy. By him the medical science may be taught, with
a history and explanations of all its successive theories from
Hippocrates to the present day; and anatomy may be fully treated.
Vegetable pharmacy will make a part of the botanical course, and
mineral and chemical pharmacy of those of mineralogy and chemistry.
This degree of medical information is such as the mass of scientific
students would wish to possess, as enabling them in their course
through life, to estimate with satisfaction the extent and limits of
the aid to human life and health, which they may understandingly
expect from that art; and it constitutes such a foundation for those
intended for the profession, that the finishing course of practice at
the bed-sides of the sick, and at the operations of surgery in a
hospital, can neither be long nor expensive. To seek this finishing
elsewhere, must therefore be submitted to for a while.
In conformity with the principles of our Constitution, which
places all sects of religion on an equal footing, with the jealousies
of the different sects in guarding that equality from encroachment
and surprise, and with the sentiments of the Legislature in favor of
freedom of religion, manifested on former occasions, we have proposed
no professor of divinity; and the rather as the proofs of the being
of a God, the creator, preserver, and supreme ruler of the universe,
the author of all the relations of morality, and of the laws and
obligations these infer, will be within the province of the professor
of ethics; to which adding the developments of these moral
obligations, of those in which all sects agree, with a knowledge of
the languages, Hebrew, Greek, and Latin, a basis will be formed
common to all sects. Proceeding thus far without offence to the
Constitution, we have thought it proper at this point to leave every
sect to provide, as they think fittest, the means of further
instruction in their own peculiar tenets.
We are further of opinion, that after declaring by law that
certain sciences shall be taught in the University, fixing the number
of professors they require, which we think should, at present, be
ten, limiting (except as to the professors who shall be first engaged
in each branch,) a maximum for their salaries, (which should be a
certain but moderate subsistence, to be made up by liberal tuition
fees, as an excitement to assiduity,) it will be best to leave to the
discretion of the visitors, the grouping of these sciences together,
according to the accidental qualifications of the professors; and the
introduction also of other branches of science, when enabled by
private donations, or by public provision, and called for by the
increase of population, or other change of circumstances; to
establish beginnings, in short, to be developed by time, as those who
come after us shall find expedient. They will be more advanced than
we are in science and in useful arts, and will know best what will
suit the circumstances of their day.
We have proposed no formal provision for the gymnastics of the
school, although a proper object of attention for every institution
of youth. These exercises with ancient nations, constituted the
principal part of the education of their youth. Their arms and mode
of warfare rendered them severe in the extreme; ours, on the same
correct principle, should be adapted to our arms and warfare; and the
manual exercise, military man;oeuvres, and tactics generally, should
be the frequent exercises of the students, in their hours of
recreation. It is at that age of aptness, docility, and emulation of
the practices of manhood, that such things are soonest learnt and
longest remembered. The use of tools too in the manual arts is
worthy of encouragement, by facilitating to such as choose it, an
admission into the neighboring workshops. To these should be added
the arts which embellish life, dancing, music, and drawing; the last
more especially, as an important part of military education. These
innocent arts furnish amusement and happiness to those who, having
time on their hands, might less inoffensively employ it. Needing, at
the same time, no regular incorporation with the institution, they
may be left to accessory teachers, who will be paid by the
individuals employing them, the University only providing proper
apartments for their exercise.
The fifth duty prescribed to the Commissioners, is to propose
such general provisions as may be properly enacted by the
Legislature, for the better organizing and governing the University.
In the education of youth, provision is to be made for, 1,
tuition; 2, diet; 3, lodging; 4, government; and 5, honorary
excitements. The first of these constitutes the proper functions of
the professors; 2, the dieting of the students should be left to
private boarding houses of their own choice, and at their own
expense; to be regulated by the Visitors from time to time, the house
only being provided by the University within its own precincts, and
thereby of course subjected to the general regimen, moral or
sumptuary, which they shall prescribe. 3. They should be lodged in
dormitories, making a part of the general system of buildings. 4.
The best mode of government for youth, in large collections, is
certainly a desideratum not yet attained with us. It may be well
questioned whether _fear_ after a certain age, is a motive to which
we should have ordinary recourse. The human character is susceptible
of other incitements to correct conduct, more worthy of employ, and
of better effect. Pride of character, laudable ambition, and moral
dispositions are innate correctives of the indiscretions of that
lively age; and when strengthened by habitual appeal and exercise,
have a happier effect on future character than the degrading motive
of fear. Hardening them to disgrace, to corporal punishments, and
servile humiliations cannot be the best process for producing erect
character. The affectionate deportment between father and son,
offers in truth the best example for that of tutor and pupil; and the
experience and practice of other (*) countries, in this respect, may
be worthy of enquiry and consideration with us. It will then be for
the wisdom and discretion of the Visitors to devise and perfect a
proper system of government, which, if it be founded in reason and
comity, will be more likely to nourish in the minds of our youth the
combined spirit of order and self-respect, so congenial with our
political institutions, and so important to be woven into the
American character. 5. What qualifications shall be required to
entitle to entrance into the University, the arrangement of the days
and hours of lecturing for the different schools, so as to facilitate
to the students the circle of attendance on them; the establishment
of periodical and public examinations, the premiums to be given for
distinguished merit; whether honorary degrees shall be conferred, and
by what appellations; whether the title to these shall depend on the
time the candidate has been at the University, or, where nature has
given a greater share of understanding, attention, and application;
whether he shall not be allowed the advantages resulting from these
endowments, with other minor items of government, we are of opinion
should be entrusted to the Visitors; and the statute under which we
act having provided for the appointment of these, we think they
should moreover be charged with
(*) A police exercised by the students themselves, under proper
discretion, has been tried with success in some countries, and the
rather as forming them for initiation into the duties and practices
of civil life.
The erection, preservation, and repair of the buildings, the
care of the grounds and appurtenances, and of the interest of the
University generally.
That they should have power to appoint a bursar, employ a
proctor, and all other necessary agents.
To appoint and remove professors, two-thirds of the whole
number of Visitors voting for the removal.
To prescribe their duties and the course of education, in
conformity with the law.
To establish rules for the government and discipline of the
students, not contrary to the laws of the land.
To regulate the tuition fees, and the rent of the dormitories
they occupy.
To prescribe and control the duties and proceedings of all
officers, servants, and others, with respect to the buildings, lands,
appurtenances, and other property and interests of the University.
To draw from the literary fund such moneys as are by law
charged on it for this institution; and in general
To direct and do all matters and things which, not being
inconsistent with the laws of the land, to them shall seem most
expedient for promoting the purposes of the said institution; which
several functions they should be free to exercise in the form of
by-laws, rules, resolutions, orders, instructions, or otherwise, as
they should deem proper.
That they should have two stated meetings in the year, and
occasional meetings at such times as they should appoint, or on a
special call with such notice as themselves shall prescribe by a
general rule; which meetings should be at the University, a majority
of them constituting a quorum for business; and that on the death or
resignation of a member, or on his removal by the President and
Directors of the Literary Fund, or the Executive, or such other
authority as the Legislature shall think best, such President and
Directors, or the Executive, or other authority, shall appoint a
successor.
That the said Visitors should appoint one of their own body to
be Rector, and with him be a body corporate, under the style and
title of the Rector and Visitors of the University of Virginia, with
the right, as such, to use a common seal; that they should have
capacity to plead and be impleaded in all courts of justice, and in
all cases interesting to the University, which may be the subjects of
legal cognizance and jurisdiction; which pleas should not abate by
the determination of their office, but should stand revived in the
name of their successors, and they should be capable in law and in
trust for the University, of receiving subscriptions and donations,
real and personal, as well from bodies corporate, or persons
associated, as from private individuals.
And that the said Rector and Visitors should, at all times,
conform to such laws as the Legislature may, from time to time, think
proper to enact for their government; and the said University should,
in all things, and at all times, be subject to the control of the
Legislature.
And lastly, the Commissioners report to the Legislature the
following conditional offers to the President and Directors of the
Literary Fund, for the benefit of the University:
On the condition that Lexington, or its vicinity, shall be
selected as the site of the University, and that the same be
permanently established there within two years from the date, John
Robinson, of Rockbridge county, has executed a deed to the President
and Directors of the Literary Fund, to take effect at his death, for
the following tracts of land, to wit:
400 acres on the North fork of James river, known by the name
of Hart's bottom, purchased of the late Gen. Bowyer.
171 acres adjoining the same, purchased of James Griggsby.
203 acres joining the last mentioned tract, purchased of
William Paxton.
112 acres lying on the North river, above the lands of Arthur
Glasgow, conveyed to him by William Paxton's heirs.
500 acres adjoining the lands of Arthur Glasgow, Benjamin
Camden and David Edmonson.
545 acres lying in Pryor's gap, conveyed to him by the heirs of
William Paxton, deceased.
260 acres lying in Childer's gap, purchased of Wm. Mitchell.
300 acres lying, also, in Childer's gap, purchased of Nicholas
Jones.
500 acres lying on Buffalo, joining the lands of Jas. Johnston.
340 acres on the Cowpasture river, conveyed to him by General
James Breckenridge -- reserving the right of selling the two last
mentioned tracts, and converting them into other lands contiguous to
Hart's bottom, for the benefit of the University; also the whole of
his slaves, amounting to 57 in number; one lot of 22 acres, joining
the town of Lexington, to pass immediately on the establishment of
the University, together with all the personal estate of every kind,
subject only to the payment of his debts and fulfillment of his
contracts.
It has not escaped the attention of the Commissioners, that the
deed referred to is insufficient to pass the estate in the lands
intended to be conveyed, and may be otherwise defective; but if
necessary, this defect may be remedied before the meeting of the
Legislature, which the Commissioners are advised will be done.
The Board of Trustees of Washington College have also proposed
to transfer the whole of their funds, viz: 100 shares in the funds of
the James River Company, 31 acres of land upon which their buildings
stand, their philosophical apparatus, their expected interest in the
funds of the Cincinnati Society, the libraries of the Graham and
Washington Societies, and $3,000 in cash, on condition that a
reasonable provision be made for the present professors. A
subscription has also been offered by the people of Lexington and its
vicinity, amounting to $17,878, all which will appear from the deed
and other documents, reference thereto being had.
In this case, also, it has not escaped the attention of the
Commissioners, that questions may arise as to the power of the
trustees to make the above transfers.
On the condition that the Central College shall be made the
site of the University, its whole property, real and personal, in
possession or in action, is offered. This consists of a parcel of
land of 47 acres, whereon the buildings of the college are begun, one
pavilion and its appendix of dormitories being already far advanced,
and with one other pavilion, and equal annexation of dormitories,
being expected to be completed during the present season -- of
another parcel of 153 acres, near the former, and including a
considerable eminence very favorable for the erection of a future
observatory; of the proceeds of the sales of two glebes, amounting to
$3,280 86 cents; and of a subscription of $41,248, on papers in hand,
besides what is on outstanding papers of unknown amount, not yet
returned -- out of these sums are to be taken, however, the cost of
the lands, of the buildings, and other works done, and for existing
contracts. For the conditional transfer to these to the President
and Directors of the Literary Fund, a regular power, signed by the
subscribers and founders of the Central College generally, has been
given to its Visitors and Proctor, and a deed conveying the said
property accordingly to the President and Directors of the Literary
Fund, has been duly executed by the said Proctor, and acknowledged
for record in the office of the clerk of the county court of
Albemarle.
Signed and certified by the members present, each in his proper
hand-writing, this 4th day of August, 1818.
TH: JEFFERSON, PHIL. C. PENDLETON,
CREED TAYLOR, SPENCER ROANE,
PETER RANDOLPH, JOHN M. C. TAYLOR,
WM. BROCKENBROUGH, J. G. JACKSON,
ARCH'D RUTHERFORD, PHIL. SLAUGHTER,
ARDH'D STUART, WM. H. CABELL,
JAMES BRECKENRIDGE, NAT. H. CLAIBORNE,
HENRY E. WATKINS, WM. A. C. DADE,
JAMES MADISON, WILLIAM JONES,
A. T. MASON, THOMAS WILSON.
HUGH HOLMES,
_Memorial on the Book Duty_
November 30, 1821
_To the Senate and House of Representatives of the United
States of America in Congress assembled:_
The petition of the rector and visiters of the University of
Virginia, on behalf of those for whom they are in the office of
preparing the means of instruction, as well as of others seeking it
elsewhere, respectfully representeth:
That the Commonwealth of Virginia has thought proper lately to
establish a university for instruction, generally, in all the useful
branches of science, of which your petitioners are appointed rector
and visiters, and, as such, are charged with attention to the
interests of those who shall be committed to their care.
That they observe, by the tariff of duties imposed by the laws
of Congress on importations into the United States, an article
peculiarly inauspicious to the objects of their own, and of all other
literary institutions throughout the United States.
That at an early period of the present Government, when our
country was burdened with a heavy debt, contracted in the war of
Independence, and its resources for revenue were untried and
uncertain, the National Legislature thought it as yet inexpedient to
indulge in scruples as to the subjects of taxation, and, among
others, imposed a duty on books imported from abroad, which has been
continued, and now is, of fifteen per cent., on their prime cost,
raised by ordinary custom-house charges to eighteen per cent., and by
the importer's profits to perhaps twenty-five per cent., and more.
That, after many years' experience, it is certainly found that
the reprinting of books in the United States is confined chiefly to
those in our native language, and of popular characters, and to cheap
editions of a few of the classics for the use of schools; while the
valuable editions of the classical authors, even learned works in the
English language, and books in all foreign living languages,
(vehicles of the important discoveries and improvements in science
and the arts, which are daily advancing the interest and happiness of
other nations,) are unprinted here, and unobtainable from abroad but
under the burden of a heavy duty.
That of many important books, in different branches of science,
it is believed that there is not a single copy in the United States;
of others, but a few; and these too distant and difficult of access
for students and writers generally.
That the difficulty resulting from this mode of procuring books
of the first order in the sciences, and in foreign languages, ancient
and modern, is an unfair impediment to the American student, who, for
want of these aids, already possessed or easily procurable in all
countries except our own, enters on his course with very unequal
means, with wants unknown to his foreign competitors, and often with
that imperfect result which subjects us to reproaches not unfelt by
minds alive to the honor and mortified sensibilities of their
country.
That, to obstruct the acquisition of books from abroad, as an
encouragement of the progress of literature at home, is burying the
fountain to increase the flow of its waters.
That books, and especially those of the rare and valuable
character, thus burdened, are not articles of consumption, but of
permanent preservation and value, lasting often as many centuries as
the houses we live in, of which examples are to be found in every
library of note.
That books, therefore, are capital, often the only capital of
professional men on their outset in life, and of students destined
for professions, (as most of our scholars are,) and barely able, too,
for the most part, to meet the expenses of tuition, and less to pay
as extra tax on the books necessary for their instruction, that they
are consequently less instructed than they would be; and that our
citizens at large do not derive from their employment all the
benefits which higher qualifications would procure them.
That this is the only form of capital on which a tax of from 18
to 25 per cent. is first levied on the gross, and the proprietor then
subject to all other taxes in detail, as those holding capitals in
other forms, on which no such extra tax has been previously levied.
That it is true that no duty is required on books imported for
seminaries of learning; but these, locked up in libraries, can be of
no avail to the practical man, when he wishes a recurrence to them
for the uses of life.
That more than thirty years' experience of the resources of our
country prove them equal to all its debts and wants, and permit its
Legislature now to favor such objects as the public interests
recommend to favor.
That the value of science to a republican people; the security
it gives to liberty, by enlightening the minds of its citizens; the
protection it affords against foreign power; the virtues it
inculcates; the just emulation of the distinction it confers on
nations foremost in it; in short, its identification with power,
morals, order, and happiness, (which merits to it premiums of
encouragement rather than repressive taxes,) are topics, which your
petitioners do not permit themselves to urge on the wisdom of
Congress, before whose minds these considerations are always present,
and bearing with their just weight.
And they conclude, therefore, with praying that Congress will
be pleased to bestow on this important subject the attention it
merits, and give the proper relief to the candidates of science among
ourselves, devoting themselves to the laudable object of qualifying
themselves to become the instructors and benefactors of their
fellow-citizens.
And your petitioners, as in duty bound, shall ever pray, &c.
_From the Minutes of the Board of Visitors, University of
Virginia, 1822 - 1825_
_Report to the President and Directors of the Literary Fund_
_(extract)_
October 7, 1822
In the same report of the commissioners of 1818 it was stated
by them that "in conformity with the principles of our constitution,
which places all sects of religion on an equal footing, with the
jealousies of the different sects in guarding that equality from
encroachment or surprise, and with the sentiments of the legislature
in freedom of religion, manifested on former occasions, they had not
proposed that any professorship of divinity should be established in
the University; that provision, however, was made for giving
instruction in the Hebrew, Greek and Latin languages, the
depositories of the originals, and of the earliest and most respected
authorities of the faith of every sect, and for courses of ethical
lectures, developing those moral obligations in which all sects
agree. That, proceeding thus far, without offence to the
constitution, they had left, at this point, to every sect to take
into their own hands the office of further instruction in the
peculiar tenet of each."
It was not, however, to be understood that instruction in
religious opinion and duties was meant to be precluded by the public
authorities, as indifferent to the interests of society. On the
contrary, the relations which exist between man and his Maker, and
the duties resulting from those relations, are the most interesting
and important to every human being, and the most incumbent on his
study and investigation. The want of instruction in the various
creeds of religious faith existing among our citizens presents,
therefore, a chasm in a general institution of the useful sciences.
But it was thought that this want, and the entrustment to each
society of instruction in its own doctrine, were evils of less danger
than a permission to the public authorities to dictate modes or
principles of religious instruction, or than opportunities furnished
them by giving countenance or ascendancy to any one sect over
another. A remedy, however, has been suggested of promising aspect,
which, while it excludes the public authorities from the domain of
religious freedom, will give to the sectarian schools of divinity the
full benefit the public provisions made for instruction in the other
branches of science. These branches are equally necessary to the
divine as to the other professional or civil characters, to enable
them to fulfill the duties of their calling with understanding and
usefulness. It has, therefore, been in contemplation, and suggested
by some pious individuals, who perceive the advantages of associating
other studies with those of religion, to establish their religious
schools on the confines of the University, so as to give to their
students ready and convenient access and attendance on the scientific
lectures of the University; and to maintain, by that means, those
destined for the religious professions on as high a standing of
science, and of personal weight and respectability, as may be
obtained by others from the benefits of the University. Such
establishments would offer the further and greater advantage of
enabling the students of the University to attend religious exercises
with the professor of their particular sect, either in the rooms of
the building still to be erected, and destined to that purpose under
impartial regulations, as proposed in the same report of the
commissioners, or in the lecturing room of such professor. To such
propositions the Visitors are disposed to lend a willing ear, and
would think it their duty to give every encouragement, by assuring to
those who might choose such a location for their schools, that the
regulations of the University should be so modified and accommodated
as to give every facility of access and attendance to their students,
with such regulated use also as may be permitted to the other
students, of the library which may hereafter be acquired, either by
public or private munificence. But always understanding that these
schools shall be independent of the University and of each other.
Such an arrangement would complete the circle of the useful sciences
embraced by this institution, and would fill the chasm now existing,
on principles which would leave inviolate the constitutional freedom
of religion, the most inalienable and sacred of all human rights,
over which the people and authorities of this state, individually and
publicly, have ever manifested the most watchful jealousy: and could
this jealousy be now alarmed, in the opinion of the legislature, by
what is here suggested, the idea will be relinquished on any surmise
of disapprobation which they might think proper to express.
March 4, 1825
A resolution was moved and agreed to in the following words:
Whereas, it is the duty of this Board to the government under
which it lives, and especially to that of which this University is
the immediate creation, to pay especial attention to the principles
of government which shall be inculcated therein, and to provide that
none shall be inculcated which are incompatible with those on which
the Constitutions of this State, and of the United States were
genuinely based, in the common opinion; and for this purpose it may
be necessary to point out specially where these principles are to be
found legitimately developed:
Resolved, that it is the opinion of this Board that as to the
general principles of liberty and the rights of man, in nature and in
society, the doctrines of Locke, in his "Essay concerning the true
original extent and end of civil government," and of Sidney in his
"Discourses on government," may be considered as those generally
approved by our fellow citizens of this, and the United States, and
that on the distinctive principles of the government of our State,
and of that of the United States, the best guides are to be found in,
1. The Declaration of Independence, as the fundamental act of union
of these States. 2. The book known by the title of "The Federalist,"
being an authority to which appeal is habitually made by all, and
rarely declined or denied by any as evidence of the general opinion
of those who framed, and of those who accepted the Constitution of
the United States, on questions as to its genuine meaning. 3. The
Resolutions of the General Assembly of Virginia in 1799 on the
subject of the alien and sedition laws, which appeared to accord with
the predominant sense of the people of the United States. 4. The
valedictory address of President Washington, as conveying political
lessons of peculiar value. And that in the branch of the school of
law, which is to treat on the subject of civil polity, these shall be
used as the text and documents of the school.
October 3, 1825
Resolved, that it be communicated to the Faculty of the
professors of the University, as the earnest request and
recommendation of the rector and Visitors, that so far as can be
effected by their exertions, they cause the statutes and rules
enacted for the government of the University, to be exactly and
strictly observed; that the roll of each school particularly be
punctually called at the hour at which its students should attend;
that the absent and the tardy, without reasonable cause, be noted,
and a copy of these notations be communicated by mail or otherwise to
the parent or guardian of each student respectively, on the first
days of every month during the term (instead of the days prescribed
in a former statute for such communications).
That it is requested of them to make known to the students that
it is with great regret that some breaches of order, committed by the
unworthy few who lurk among them unknown, render necessary the
extension to all of processes afflicting to the feelings of those who
are conscious of their own correctness, and who are above all
participation in these vicious irregularities. While the offenders
continue unknown the tarnish of their faults spreads itself over the
worthy also, and confounds all in a common censure. But that it is
in their power to relieve themselves from the imputations and painful
proceedings to which they are thereby subjected, by lending their aid
to the faculty, on all occasions towards detecting the real guilty.
The Visitors are aware that a prejudice prevails too extensively
among the young that it is dishonorable to bear witness one against
another. While this prevails, and under the form of a matter of
conscience, they have been unwilling to authorize constraint, and
have therefore, in their regulations on this subject, indulged the
error, however unfounded in reason or morality. But this loose
principle in the ethics of school-boy combinations, is unworthy of
mature and regulated minds, and is accordingly condemned by the laws
of their country, which, in offences within their cognisance, compel
those who have knowledge of a fact, to declare it for the purposes of
justice, and of the general good and safety of society. And
certainly, where wrong has been done, he who knows and conceals the
doer of it, makes himself an accomplice, and justly censurable as
such. It becomes then but an act of justice to themselves, that the
innocent and the worthy should throw off with disdain all communion
of character with such offenders, should determine no longer to
screen the irregular and the vicious under the respect of their
cloak, and to notify them, even by a solemn association for the
purpose, that they will co-operate with the faculty in future, for
preservation of order, the vindication of their own character, and
the reputation and usefulness of an institution which their country
has so liberally established for their improvement, and to place
within their reach those acquirements in knowledge on which their
future happiness and fortunes depend. Let the good and the virtuous
of the alumni of the University do this, and the disorderly will then
be singled out for observation, and deterred by punishment, or
disabled by expulsion, from infecting with their inconsideration the
institution itself, and the sound mass of those which it is preparing
for virtue and usefulness.
_Draft Declaration and Protest of the Commonwealth of
Virginia, on the Principles of the Constitution of the United
States of America, and on the Violations of them_
December 1825
We, the General Assembly of Virginia, on behalf, and in the
name of the people thereof, do declare as follows:
The States in North America which confederated to establish
their independence of the government of Great Britain, of which
Virginia was one, became, on that acquisition, free and independent
States, and as such, authorized to constitute governments, each for
itself, in such form as it thought best.
They entered into a compact, (which is called the Constitution
of the United States of America,) by which they agreed to unite in a
single government as to their relations with each other, and with
foreign nations, and as to certain other articles particularly
specified. They retained at the same time, each to itself, the other
rights of independent government, comprehending mainly their domestic
interests.
For the administration of their federal branch, they agreed to
appoint, in conjunction, a distinct set of functionaries,
legislative, executive, and judiciary, in the manner settled in that
compact: while to each, severally, and of course, remained its
original right of appointing, each for itself, a separate set of
functionaries, legislative, executive, and judiciary, also, for
administering the domestic branch of their respective governments.
These two sets of officers, each independent of the other,
constitute thus a _whole_ of government, for each State separately;
the powers ascribed to the one, as specifically made federal,
exercised over the whole, the residuary powers, retained to the
other, exercisable exclusively over its particular State, foreign
herein, each to the others, as they were before the original compact.
To this construction of government and distribution of its
powers, the Commonwealth of Virginia does religiously and
affectionately adhere, opposing, with equal fidelity and firmness,
the usurpation of either set of functionaries on the rightful powers
of the other.
But the federal branch has assumed in some cases, and claimed
in others, a right of enlarging its own powers by constructions,
inferences, and indefinite deductions from those directly given,
which this assembly does declare to be usurpations of the powers
retained to the independent branches, mere interpolations into the
compact, and direct infractions of it.
They claim, for example, and have commenced the exercise of a
right to construct roads, open canals, and effect other internal
improvements within the territories and jurisdictions exclusively
belonging to the several States, which this assembly does declare has
not been given to that branch by the constitutional compact, but
remains to each State among its domestic and unalienated powers,
exercisable within itself and by its domestic authorities alone.
This assembly does further disavow and declare to be most false
and unfounded, the doctrine that the compact, in authorizing its
federal branch to lay and collect taxes, duties, imposts and excises
to pay the debts and provide for the common defence and general
welfare of the United States, has given them thereby a power to do
whatever _they_ may think, or pretend, would promote the general
welfare, which construction would make that, of itself, a complete
government, without limitation of powers; but that the plain sense
and obvious meaning were, that they might levy the taxes necessary to
provide for the general welfare, by the various acts of power therein
specified and delegated to them, and by no others.
Nor is it admitted, as has been said, that the people of these
States, by not investing their federal branch with all the means of
bettering their condition, have denied to themselves any which may
effect that purpose; since, in the distribution of these means they
have given to that branch those which belong to its department, and
to the States have reserved separately the residue which belong to
them separately. And thus by the organization of the two branches
taken together, have completely secured the first object of human
association, the full improvement of their condition, and reserved to
themselves all the faculties of multiplying their own blessings.
Whilst the General Assembly thus declares the rights retained
by the States, rights which they have never yielded, and which this
State will never voluntarily yield, they do not mean to raise the
banner of disaffection, or of separation from their sister States,
co-parties with themselves to this compact. They know and value too
highly the blessings of their Union as to foreign nations and
questions arising among themselves, to consider every infraction as
to be met by actual resistance. They respect too affectionately the
opinions of those possessing the same rights under the same
instrument, to make every difference of construction a ground of
immediate rupture. They would, indeed, consider such a rupture as
among the greatest calamities which could befall them; but not the
greatest. There is yet one greater, submission to a government of
unlimited powers. It is only when the hope of avoiding this shall
become absolutely desperate, that further forebearance could not be
indulged. Should a majority of the co-parties, therefore, contrary
to the expectation and hope of this assembly, prefer, at this time,
acquiescence in these assumptions of power by the federal member of
the government, we will be patient and suffer much, under the
confidence that time, ere it be too late, will prove to them also the
bitter consequences in which that usurpation will involve us all. In
the meanwhile, we will breast with them, rather than separate from
them, every misfortune, save that only of living under a government
of unlimited powers. We owe every other sacrifice to ourselves, to
our federal brethren, and to the world at large, to pursue with
temper and perseverance the great experiment which shall prove that
man is capable of living in society, governing itself by laws
self-imposed, and securing to its members the enjoyment of life,
liberty, property, and peace; and further to show, that even when the
government of its choice shall manifest a tendency to degeneracy, we
are not at once to despair but that the will and the watchfulness of
its sounder parts will reform its aberrations, recall it to original
and legitimate principles, and restrain it within the rightful limits
of self-government. And these are the objects of this Declaration
and Protest.
Supposing then, that it might be for the good of the whole, as
some of its co-States seem to think, that the power of making roads
and canals should be added to those directly given to the federal
branch, as more likely to be systematically and beneficially
directed, than by the independent action of the several States, this
commonwealth, from respect to these opinions, and a desire of
conciliation with its co-States, will consent, in concurrence with
them, to make this addition, provided it be done regularly by an
amendment of the compact, in the way established by that instrument,
and provided also, it be sufficiently guarded against abuses,
compromises, and corrupt practices, not only of possible, but of
probable occurrence.
And as a further pledge of the sincere and cordial attachment
of this commonwealth to the union of the whole, so far as has been
consented to by the compact called "The Constitution of the United
States of America," (constructed according to the plain and ordinary
meaning of its language, to the common intendment of the time, and of
those who framed it;) to give also to all parties and authorities,
time for reflection and for consideration, whether, under a temperate
view of the possible consequences, and especially of the constant
obstructions which an equivocal majority must ever expect to meet,
they will still prefer the assumption of this power rather than its
acceptance from the free will of their constituents; and to preserve
peace in the meanwhile, we proceed to make it the duty of our
citizens, until the legislature shall otherwise and ultimately
decide, to acquiesce under those acts of the federal branch of our
government which we have declared to be usurpations, and against
which, in point of right, we do protest as null and void, and never
to be quoted as precedents of right.
We therefore do enact, and be it enacted by the General
Assembly of Virginia, that all citizens of this commonwealth, and
persons and authorities within the same, shall pay full obedience at
all times to the acts which may be passed by the Congress of the
United States, the object of which shall be the construction of post
roads, making canals of navigation, and maintaining the same in any
part of the United States, in like manner as if said acts were,
_totidem verbis_, passed by the legislature of this commonwealth.