THE
LIFE
HON. NATHANIEL CHIPMAN, LL.D.
FORMERLY
MEMBER OF THE UNITED STATES SENATE, AND CHIEF
JUSTICE OF THE STATE OF VERMONT.
SELECTIONS
F ROM HIS MISCELL A X E O I S TAPERS
BY HIS BROTHER,
DANIEL CHIPMAN
BOSTON:
CHARLES C. LITTLE AND JAMES BROWN.
1 S 1 6 .
Entered according to Act of Congress, in the year 1845,
By Daniel Chip.mas,
in the Clerk's Office of the District Court of the District of Massachusetts.
boston:
pkintcd hy prekmah and bollks,
\v \-mim; row B rii BIT.
V
PREFACE.
£
si
> Although it might be supposed that the death of
^ my brother, at his advanced age, would not surprise
c^ or deeply affect any one, yet, as we had been the
only survivors of a numerous family, and as he had
now left me the only survivor, the intelligence of
his death produced a shock, which I had not antici-
pated. I felt a depressing, lonely feeling, which I
will not undertake to describe ; and I at once re-
sorted to the numerous letters which had passed
between us, and spent the day in reading them.
From this I found relief : It seemed like a renewal
of our long, intimate fraternal intercourse. This
suggested the idea of writing his biography, before it
was suggested by others. As I anticipated, I have
derived great satisfaction from a review of his life
•n?
IV PREFACE.
and character ; alloyed, however, by a fear, that, by
the infirmities of age, I should not be able to do
justice to the subject, if permitted to bring if to a
conclusion in any form. But I have great reason to
be thankful that a kind Providence has enabled me
to bring the work to a close, though not in a manner
satisfactory to myself. A considerable portion of
the time since the decease of my brother, I have
been wholly unable to write, and at all times writing
with difficulty. I have permitted a great portion of
the work to be copied from the first draught. But
if the work, with all its defects, shall prove useful ;
if I have portrayed the character of Nathaniel
Chipman with exact truth; if I have succeeded in
accounting for the acuteness, strength and compre-
hension of his mind, and for that fund of general
knowledge which he had acquired, by truly setting
forth his early training, his early voluntary attention,
his conscientious regard for truth, and his systematic
diligence, — I have accomplished all I wished. I
have sel forth an example, to be followed by parents
in training their children, 1>\ young men in the course
of their education, and 1>\ all in public life. To
write a panegyric would, in this case, savor of van-
PREFACE. V
ity, and is in no case very useful, without setting
forth the early training and the early acquired habits
which contributed to form the character of the per-
son eulogized, as an example to be followed by the
rising generation. Such is, undoubtedly, the legiti-
mate purpose of biography. To eulogize a great
and a good man may indeed be useful, by exciting
an ambition to follow his example, but it does not
instruct the young by what means they may be ena-
bled to do so. Biographers are generally compelled,
from a want of a knowledge of facts, to content
themselves with portraying the character as it ap-
peared on the theatre of life, without setting forth
the causes which operated in forming it. Fortu-
nately, in this case, I have been able to obtain the
necessary facts, or rather to detail them from my
own knowledge. All this I could do without any
embarrassment. But from my near connection with
Judge Chipman, and from the very high estimation
in which I had ever held him as a judge, I felt a
delicacy in portraying his judicial character, fearing
that I might either go beyond or fall short of exact
truth. So sensibly did I feel this embarrassment,
that I concluded to engage some jurist, more compe-
VI PREFACE.
tent and more impartial, to write his judicial charac-
ter. Having formed this conclusion, for obvious
reasons, my at ten! ion was immediately turned to the
Hon. Samuel Prentiss ; and I took leave to write
him on the subject. In answer, I received the fol-
lowing letter :
Montpelier, Dec. 14th, 1843.
Dear Sir : I have reflected upon the subject of
your letter, and am quite free to say that in my
opinion, no one is so competent to write the judicial
character of your brother, as yourself. You have
advantages in the execution of such an undertaking
which no other one possesses. You were a cotempo-
rary with him, practised at the bar under his admin-
istration, and know, of course, all the various traits
of mind and constitutional temperament, which,
combined with his deep and extensive learning, en-
titled him to rank among the first judges of this, or
any other country. From your personal observation
and intimate knowledge of him both in public and
private, you are enabled to state the prominent fea-
tures of his mind and character as a judge, and to
illustrate his peculiar excellencies in that capacity.
PREFACE. Vll
with more truth, discrimination and accuracy, than
it is in the power of any one else at this day to do.
I knew his general reputation as a judge, and wit-
nessed, during the short period he was last on the
bench, exhibitions of the great strength, vigor, com-
prehension and clearness of his mind, of his pro-
found and accurate knowledge of legal principles,
and of his remarkably discriminating and well-bal-
anced judgment ; but my practice in the supreme
court was at that time but just commencing, and my
opportunities of personal observation were too few
and limited to enable me to give, with just precision
and distinctness, neither going beyond nor falling
short of exact truth, the distinguishing traits of his
judicial character. All this, as I have said, you have
the means of doing, and I think you should feel no
delicacy in performing it, but express your views
with perfect freedom, and without reserve. The
life of Lord Keeper Guilford, one of the most inter-
esting biographies extant, was written by his brother ;
the life of Lord Hardwick, if I recollect right, was
the production of his son ; and so was the life of
Lord Teignmouth the work of his son. To these
might be added many other instances of the like
Vlil PREFACE.
kind, both in English and American literature ; so,
you see, you are not without the support of numer-
ous and very illustrious examples.
I am, with high respect,
Your obedient, &,c.
Samuel Prentiss.
Hon. Daniel Ciiipmax.
On the receipt of the foregoing letter, I proceeded
with the work, following the friendly advice of Judge
Prentiss in expressing my views, as the reader will
perceive, with perfect freedom, and without any re-
serve ; and, I hope, without going beyond or falling
short of exact truth.
fiipton, August 1:3, 1844.
CONTENTS.
CHAPTER I.
Page.
Genealogy of the Family — The staid Habits of the Puritans con-
tinued during his Childhood and Youth — Diligent and systematic
Pursuit of his collegiate Studies — Appointed Lieutenant in the
revolutionary Army — Some of his juvenile poetic Productions —
Letters to some of his Classmates, written while in the Army,
and when pursuing his legal Studies — Admitted to the Bar in
Connecticut and commenced Practice in Vermont — His standing
at the Bar. ....... 5
CHAPTER II.
Secret Negotiations with the British Authorities in Canada — Ex-
tract from the " Life of Brant," containing a Charge of Criminal-
ity against the Leading Men in Vermont — Abdication of those
Patriots against the Charge. ..... 37
CHAPTER III.
Occasion and beneficial Operation of the Quieting Act — Mr. Chip-
man unsuccessful in his Farming and other Business — Resolu-
tion of the Legislature, by which certain Measures proposed for
the Relief of the People calculated only to increase and prolong
their Sufferings, were postponed and defeated — Elected Assistant
Judge of the Supreme Court. . . . .62
b
CONTENTS.
CHAPTER IV.
Correspondence between Nathaniel Chipman and Alexander Hamil-
ton — Settlement of the Controversy with New York.
CHAPTER \ .
Convention called, by which Vermont acceded to the Union — Speech
of Nathaniel Chipman in the Convention — Admission of Vermont
to the Union. ....... 83
CHAPTER VI.
Elected Chief Justice — Confirmation Charter under New York —
Why they were not taken by the Settlers on the West Side of the
Mountain — The Law in relation to those Charters settled by
Judge Chipman — Appointed District Judge — Letters to General
Schuyler and Governor Robinson —Sketches of the " Principles
of Government " — Reports and Essays — Resigned his Office of
District Judge — Appointed one of a Committee to revise the
Statutes — Elected Chief Justice — His Character as a Politi-
cian. ........ 96
CHAPTER VII.
Elected Senator — His Speech in the Senate on a Resolution con-
cerning a breach of its Privileges — Letter expressing his Views
of the French Revolution — His Speech on the Judiciary Act. 113
CHAPTER VIII.
Represented the town of Tinmoulh, in the Legislature, for se-
veral years — Elected one of the Council of Censors, who pro-
posed Amendments to the Constitution, and published the "Con-
stitutionalist" in support of the Amendments. . . 153
CHAPTER IX.
Elected Chief Justice in October, 1813 — Displaced in 1815 — His
Judicial Character. ...... 105
CONTENTS. XI
Page.
CHAPTER X.
Appointed Professor of Law in Middlebury College — Delivered a
course of Lectures — His Work on Government — Adventures of
his son Edwin — Sickness and Death — Conclusion. . . 20-1
APPENDIX.
NO. I.
A Dissertation on the Act adopting the Common and Statute Laws
of England. ....... 221
NO. II. — LECTURE I.
On Law in General. ...... 235
NO. III. — LECTURE II.
Of National Law, and Municipal Law in General. . . 249
NO. IV. — LECTURE III.
On the System of Law and the Proper Method of Study. . 267
NO. V. — LECTURE IV.
On the Right of Property. ..... 283
NO. VI.
Observations on Mr. Calhoun's Expose of his Nullification Doc-
trines, published in the Richmond Whig. . . . 293
NO. VII.
Letter from Governor Chittenden to General Washington, upon the
Policy and course of Vermont in the Revolutionary War. . 383
x jj CONTENTS.
NO. VIII.
Letter from Nathaniel Chiptnan to Alexander Hamilton, occasioned
bv certain Proceedings of the Democratic Society of the County
^ L - j . 393
of Chittenden .
LIFE OP NATHANIEL CHIPMAN.
CHAPTER I.
Genealogy of the Family — The staid Habits of the Puritans continued
during his Childhood and Youth — Diligent and systematic Pursuit of
his collegiate Studies — Appointed Lieutenant in the revolutionary
Army — Some of his juvenile poetic Productions — Letters to some of
his Classmates, written while in the Army, and when pursuing his
legal Studies — Admitted to the Bar in Connecticut and commenced
Practice in Vermont — His standing at the Bar.
The common ancestor of all those bearing the
name of Chipman, in North America, was John
Chipman, born in Barnstable, in England, in the
year 1614. He emigrated to America in the year
1630, at the age of sixteen, and married a daughter
of John Howland, one of the pilgrims, who in 1620
landed from the Mayflower upon the Plymouth rock.
He settled on a farm in Barnstable, on which his de-
scendants have ever since resided. He was admitted
a freeman by vote of the town in December, 1662.
His second son, Samuel Chipman, was born in Barn-
stable, August 15th, 1661. He married Sarah Cobb,
and had ten children, one of which was John Chip-
man, born in Barnstable in 1691, graduated at Har-
b J. 11 E OF NATHANIEL CH1PMAN.
vard College in 1711, ordained minister in Beverly,
Massachusetts, in 1715, and died in 1775, aged 84.
He had fifteen children ; their descendants are very
numerous in Nova Scotia and New Brunswick,
among whom is Ward Chipman, one of the com-
missioners under the treaty of Ghent for settling the
North-eastern boundary.
The eldest of the ten children of Samuel Chip-
man was Thomas, born in Barnstable, November
17th, 1687. He settled in Groton, Connecticut, and
had five sons, Thomas, John, Amos, Samuel and
Jonathan. In the year 1740, he removed with his
five sons to Salisbury, Connecticut. In the year
1741, the town of Salisbury was organized, and he
was the first representative. When the county of
Litchfield was organized, he was appointed a judge
of the county court, but died before the first term.
His son Samuel, father of the subject of this memoir,
married Hannah Austin, of Sufiield, Connecticut.
The family records having been lost, the following is
all that is known of her family. Her father was a
physician ; himself and the father of the late Apollos
Austin, of Orwell, Vermont, were cousins. The late
Seth Austin, of Tunbridge, Vermont, the late Aaron
Austin, of New Hartford, Connecticut, the late Dan-
iel Austin, merchant in New York, and the late Eli-
phalet Austin, of the state of Ohio, were her nephews.
And I learned from the late Benjamin Austin, of
Boston, that himself and the Austins in Sufiield, were
of the same stock. Samuel and Hannah Chipman
had Biz sons, Nathaniel, the subject of this memoir,
who was born the 15th of November, 1752, Lemuel,
LIFE OF NATHANIEL CHIPMAN. /
Darius, Cyrus, Samuel and Daniel. The five eldest
brothers died at the following ages, to wit : Nathan-
iel, 90 ; Lemuel, 76 ; Darius, 76 ; Cyrus, 77, and
Samuel, 76. Their father, Samuel Chipman, and his
two brothers, Thomas and Jonathan, all died in the
ninety-first year of their age.
To delineate the character of Nathaniel Chipman,
and clearly to account for the early discipline, acute-
ness, strength and comprehension of his mind, for
which in after life he was so distinguished, it seems
necessary to advert to the times in which he spent
his childhood and youth.
The staid habits of the puritans were continued
with little adulteration to the commencement of the
revolutionary war. Everything with them was or-
derly and systematic. In comparison with the reli-
gious character of their descendants, their religion
was more intellectual. Great stress was laid on or-
thodoxy — on a clear understanding and steadfast
faith in the great doctrines of the Gospel, and less on
the vividness of their religious affections. As their
religious affections were less vivid, they were more
uniform, more habitual, and thus became actuating
motives, and settled religious principles by which they
were governed in all the concerns of life. Public
worship was punctually attended on the Sabbath, but
with them this was scarcely more of a religious exer-
cise than the government of their families, the educa-
tion of their children, industry in their several call-
ings, honesty in their dealings, submission to the civil
and ecclesiastical authorities, and the performance of
all their moral duties. True, other sects consider all
8 LIFE OF NATHANIEL (Fill'. MAN.
these as enjoined by the scriptures, but the puritans
had in their exercise a more constant reference to the
scriptures for direction. Most treatises on religious
subjects were argumentative, requiring an exercise of
the intellectual faculties, and were in the hands of
the mass of the people. Hence a habit of voluntary
attention, so indispensable in the education of youth,
was early acquired, with a taste for solid and useful
reading on other subjects. It has been said, that
" the effects upon the intellect of the well-directed
pursuit of religious knowledge are not inferior to
those of literary and scientific pursuits, in cultivating
those mental habits and powers, which are of the
greatest importance in the conduct of life, and that
the laborious class of the Scotch, afford a striking
illustration of this truth. Their acuteness and pene-
tration of thought, solidity of judgment, and habits of
reflection for which they have been justly so much
noted, have been brought into exercise by their reli-
gious culture." The puritans offered as striking an
illustration of this truth.
The family government of the puritans was also
peculiarly adapted to the cultivation of the intellect-
ual faculties, as well as to laying a foundation for
moral and religious principles. The child was gov-
erned as well by fear as by affection. If a child be
allured to the acquisition of knowledge, it will have a
tendency to form an amiable character. IJut unless
he be governed in part by fear of his parent, and act
in obedience to his authority, there will seldom be
that hardy vigor of intellect, which is so useful in
every department of life ; and if, by a too severe and
LIFE OF NATHANIEL CHIPMAN. b>
austere government, a child was sometimes ruined
by creating in him an utter impatience of all re-
straint, and producing a settled opposition to all
sound principles, and all legitimate authority, yet in
most cases the strictness of family government had a
most salutary effect. It created in the child an habit-
ual submission to the will of his earthly parent — an
important if not an indispensable preparation for an
habitual obedience to the will of our heavenly Pa-
rent. Children, too, were brought up in habits of
unremitted and patient industry. And when they
were called from labor, to study, to obtain an educa-
tion, this habit of industry greatly accelerated their
progress.
The father of the subject of this memoir carried on
the business of a blacksmith, and cultivated a small
farm, by which he maintained a numerous family.
Some of the sons labored with him in the shop, the
others on the farm. He was himself a most indus-
trious man, and was very particular in having his
sons in constant employment, and all the concerns
of the family were subjected to an orderly system, no
departure from which was ever permitted.
At an early hour the whole family retired to rest,
and all, from the oldest to the youngest, were com-
pelled to rise at an early hour, by means of which
they acquired a confirmed habit of early rising, for
which they were noted through life. The father and
mother were equally industrious, and yet both had a
taste for reading, and both read more than most
laboring people. Still, it seemed never to interfere
with their business. During the Avinter evenings,
10 LIFE OF NATHANIEL CHIPMAN.
some one in the family read, and what was read was
made the subject of conversation. And it is worthy
of notice that a well-selected town library had been
procured, and that from this library the family were
supplied with books.
The subject of this memoir labored on the farm
until the year 1772, when he entered upon his pre-
paratory studies for entering college, as was custom-
ary in those days, with the minister of the parish.
And as he entered upon his studies with a sound
body and with a sound mind, both alike invigorated
by exercise, and with a settled habit of industry, he
made rapid progress in his studies, and entered Yale
College in the year 1773, at the age of 21, having
spent but nine months in his preparatory studies.
For a short time after he entered college he spent
most of his time upon his recitations ; but he was
soon able to make such progress in his classical stu-
dies, that he was obliged to spend but a short time in
reviewing his lessons before recitation. This enabled
him to go forward of his recitations still more rapidly.
He followed this course until he left college. He
pursued his studies systematically, devoting a certain
allotted portion of his time to the languages, another
portion of his time to his other classical studies, an-
other to general reading ; every day devoting some
time to light reading for relaxation. This course he
strongly recommended to those who were about to
enter college, saying, " if you calculate to become
a scholar of any distinction, solely by studying your
lessons, so as to appear well at your recitations, you
will be sadly disappointed. Or if you pursue your
LIFE OF NATHANIEL CHIPMAN. 11
studies without system, reading this or that, as you
may be prompted by the feelings of the moment, you
will only dissipate the mind. You will never either
discipline the mind, or lay up in order any store of
useful knowledge. If you calculate only from day to
day to get your recitations, you will sit down to them
as a task, and will not acquire a taste for your studies,
or take any pleasure in pursuing them ; and if you do
not, it will be better to quit your studies, no matter
how soon. Whereas if you pursue your studies sys-
tematically and with diligence, not confining your-
self to your recitations, but keeping in advance of
them, in all your classical studies, and spending but a
short time in reviewing them, you will be far more
likely to acquire a taste for your studies and pursue
them, not as a dreaded task, but as a most pleasant
employment."
He immediately took a high standing in his class,
which he maintained through his collegiate course.
Although he had a peculiar taste for the languages,
yet he had the reputation of a universal scholar.
He was advised to prepare and present himself as a
candidate for the premium provided to be awarded
to the best linguist in the class ; but he declined it, on
the ground, that his inclination led him to spend as
much time in the study of the languages as he ought
to do, without this stimulus. This was true ; for
during his collegiate course he made himself perfect
master of the Hebrew, Greek, and Latin. And after
he left college and entered upon his profession, he
continued through life to read the Old Testament in
Hebrew, and the New Testament in Greek, with
12 LIFE OF NATHANIEL CHIPMAN.
Homer, Virgil, and the minor Greek and Latin poets,
calculating to go through the course once in a year.
It appears, on examination of his papers, that during
his collegiate life, and for a short period after, he
exhibited a taste for poetry, but soon after he entered
on his profession he desisted from writing poetry
altogether. It is evident, therefore, that if he ever
entertained an idea of appearing before the world as
a poet, he very early abandoned it. I should not
therefore, feel justified in publishing any of his juvenile
productions, were I not persuaded that the man will,
by their publication be more intimately known to the
reader. It will I think appear highly probable that
if he had not derived a higher degree of pleasure
from the exercise of his reasoning faculties, he would
have been attracted by the pleasures of the imagina-
tion to the cultivation of his poetic talents.
The following was written in May, 1775, soon after
the Lexington battle, and is all that remains of the
manuscript, the forepart of which has been torn of]',
and cannot be found. The piece was published in
the New Haven Postboy, and as it related to British
oppression and the doubtful contest for liberty then
just commenced, it attracted considerable notice at
the time.
Here, when a tyrant Britain's sceptre swayed,
And persecuting zeal the land o'crsprcad,
Led by the hand of Heaven across the flood,
The sons of Liberty fixed their abode.
Here desert wilds and trackless wastes they found,
Her- by thousands girt them round,
With painted arms they poured their legions forth,
In swarthy myriads from the pop'loua north.
LIFE OF NATHANIEL CHIPMAN. 13
To extirpate those mighty sons of fame,
And from the earth to raze their envied name.
In vain they swarmed — aimed their fleet shafts in vain,
O'ercome they fell upon the ensanguined plain.
Now the untrod desert, cultivated, smiled ;
And towns were settled through the pathless wild ;
Young states were founded here and lived at ease,
Enjoyed their freedom and their rights in peace ;
Till France invaded — then the British arms
Her boasted empire shook with dread alarms.
With laurels were the British armies crowned,
And Canada the British sceptre owned.
Now tyranny again has filled the throne,
And from the British senate virtue flown.
False to their oaths, and to their solemn trust,
They tread the rights of nations in the dust.
America, where freedom held her reign,
Now first is doomed to wear the galling chain.
Oppressed, she groans beneath their lawless power,
And quakes to hear the gathering tempest roar.
Rise ! sons of freedom ! close the glorious fight,
Stand for religion, for your country's right.
Resist the tyrant, disappoint his hopes,
Fear not his navies, or his veteran troops.
Think on those heroes who resigned their breath
To tools of tyrants, ministers of death,
Who firm, the rage of tyranny withstood,
And seal'd the cause of liberty with blood.
Let their example patriot zeal inspire,
And every breast with martial ardor fire.
Oh Heaven ! be gracious; save our sinking land,
Crush our proud foes with thine avenging hand.
Kindle thy thunders, bid thy lightnings fly,
Let tempests heave the ocean to the sky.
Plunge in the billowy deeps their naval power,
Or cast them shipwreck'd on some unknown shore
Let white-robed peace once more extend her reign,
And justice hold the impartial sword again.
2
14- LIFE OF NATHANIEL CHIPMAN.
Under their influence let an empire rise,
Ami far extend beneath the western skies.
From sea to sea — from Darien to pole,
Till time shall end, till years shall cease to roll.
The following was written to Mr. Cogswell, a
classmate, in April, 1777, after he had received a
lieutenant's commission in the army.
No more, my friend, I '11 rack my hrains,
To write in high heroic strains,
But since I see 't is what you choose,
I '11 court the Hudibrastic muse.
And think you then the softer passion
Of love, with me is out of fashion 1
Or think my heart so hard lias grown,
No charm can ever melt it down.
You'd make your friend a very stoic
For only jesting in heroic.
However, sir, since you 've begun,
I'll tell a tale to help it on.
When every beast could talk and chatter,
As learned /Esop tells the matter,
On high there hung a bunch of grapes,
For which a fox took many leaps;
But when he found he could not gain them,
lie thus affected to disdain them :
Hang them, he says, I '11 leap no more,
For when they 're gained they 're cruel sour.
Think you this fox would never leap,
To catch another tempting grape ?
Or can you safely make the assertion,
That all thenceforth were his aversion?
Or should I now give o'er the tilt,
If one or two have play'd the jilt /
Because a lass has proved unkind,
Can that forever sour my mind ?
LIFE OF NATHANIEL CHIP MAN. 15
You 'HJthink it strange what I assert,
But I will venture to aver 't
I ne'er found Heaven in smiles alone,
Nor yet damnation in a frown.
'T is my opinion, sensibility
Should never banish all tranquillity.
Avast ! methinks you say, enough
Of this condemned insipid stuff.
Let 's know how you"employ your time.
Why faith, you see, I 'rewriting rhyme :
But I no more Parnassus tread,
A foolish whim has turned my head.
The muse has lost her wonted charms,
And I am rushing on to arms.
No more I sing of bloody fight,
But now prepare myself to try't.
And leave to you the extensive rule
You 've late acquir'd in country school ;
Your whip, your ferrule and your pen,
And cringing band of pigmy men.
Yes, you may laugh to see me cased
In armor, with a cockade graced ;
Nor will you laugh alone, I warrant,
At such a doughty huge knight-errant.
The following were written in camp at Valley-
forge, in February, 1778, to Mr. Fitch, a classmate,
afterwards president of Williams College.
From where the Schuylkill rolls its waves,
And Pennsylvania's meadows laves,
To Fitch, mine and the muses friend,
These Hudibrastic lines I send.
While you drink deep the Aonian fountain,
Or range Parnassus' sacred mountain,
Beneath those blooming shades recline,
Surrounded by the immortal Nine !
10 LIFE OF NATHANIEL CHIPMAN.
Now tune your harp to pastoral strains,
To love, to joys, and tender pains ;
And while the plaintive numbers flow,
With raptures feel your hosom glow,
Or now unlock the learned store,
By sages treasured up of yore,
Weep o'er the fallen hero's hearse,
Trace mighty empires from their source,
See how they rose hy freedom's force,
See how disinterest made them great,
Or fell corruption sapped the state ;
With god-like Plato moralize,
Or soar with Homer to the skies ;
Or now more modern works you read
As judgment, or as fancy lead.
And when the over-studied mind
To recreation is inclined,
In circle with the softer sex
Gayly in conversation mix.
Now woo the mistress of your heart,
Who feels herself the pleasing smart,
And glows alike with chaste desires,
UnmixM with mere licentious fires,
A passion to the mob unknown
And felt by generous souls alone.
While you these rapturous scenes pursue,
Where pleasure rises ever new ;
By cruel fate condemned to roam
Far from my friends and native home,
Where ruthless war in triumph reigns,
And desolation sweeps the plains.
Here must we feel the inclement air,
Bear all the unequalled toils of war ;
Meet hardship in a thousand forms,
Now scorchM with heat, now drcnchM with storms.
With cold and want maintain the slril'c
Such arc the ills of martial life,
LIFE OF NATHANIEL CHIPMAN. 17
Anon the cannons' war alarms,
And leaders cry aloud, to arms !
Now polished arms in dread array
Beaming, restore the blaze of day, —
The streaming standards blaze on high,
And front to front the hosts draw nigh ;
And now they close with direful shock,
The fields involved in flames and smoke,
Disploded with tremendous roar
That echoes to the distant shore,
While leaden deaths thick fly around,
And slaughtered heroes strew the ground.
Terror in every form appears,
Now shouts, now groans assail the ears.
The earth is drenched in streaming blood
That purples every neighboring flood ;
Till one deep pierced in disarray,
Is forced to yield the fatal day.
And now, my friend, come view the plain,
Deformed with mangled heaps of slain ;
See here by deadly wounds subdued,
Thousands still weltering in their blood.
Their country's glory was their all,
For her they fought, for her they fall.
Oh grant, kind Heaven, these scenes may end,
And peace her olive-branch extend ;
In freedom this fair land be blest,
Nor Britain more our right contest.
Among the papers of the deceased I find transla-
tions of several odes of Horace, and of part of his
satires — made during his collegiate life. The fol-
lowing is a short poem from Anacreon, paraphrased.
Unhappy he whose callous heart
Ne'er felt the joys of love,
Whose bosom, steeled to soft desires,
Not Venus' self can move.
18 LIFE OF N \ 1 1 r \Nir.l. CHIPM Ifl ,
Unhappy he wlio yields his heart
A pray to Love's enchanting snare,
Whose hopes of bliss alone depend
On some inconstant fair.
But more unhappy he who loves,
Yet meets no kind return,
Whose sighs, whose tears, and tender vows
Are all repaid with scorn.
Soon after the close of the revolutionary war, the
people, from habits of idleness and dissipation, con-
tracted during its seven years continuance, found
themselves impoverished, and wholly unable to pay
their debts. And as it ever is with individuals so it is
with communities ; if they find themselves in a poor,
distressed condition, they never once think of ascrib-
ing it to the true cause, their own misconduct, but inva-
riably charge it to misfortune, or what is more natural
and more common, to the wrong-doing of others. The
distress of the people was not at that time laid to the
oppressive aristocracy of wealthy individuals, they
were too few in number to attract attention. But as
the people felt the pressure of their debts through the
courts, the lawyers, and the sheriffs, the cry was,
" stop the courts," expel the lawyers, and resist the
sheriffs ; and the people began to hold conventions to
increase the excitement and to organize an opposi-
tion to the government. For this purpose a conven-
tion was holden at Wells, or rather in the " edge of
Wells," for at that day, (how it is now I know not)
all the inhabitants of Wells invariably gave as the
place of their residence " The edge of Wells."
The convention published a journal of their pro-
LIFE OF NATHANIEL CHIPMAN. 19
ceedings, and the subject of this memoir, wrote and
published the following as a burlesque on these pro-
ceeding- It was considered at the time, that it had
a very salutary effect. Many individuals who had
before favored the malecontents, were afterwards un-
willing to be seen with them.
JOURNAL OF THE WELLS CONVENTION, 1786.
Whereas the assembly of this state
Have dared audaciously of late
With purpose vile the constitution
To break, or make a wicked use on ;
By making laws and raising taxes,
And viler still, (so truth of fact is)
By keeping up that smooth-tongued clan,
For ages cursed by God and man,
Attorneys, whose eternal gabble,
Confounds the inexperienced rabble ;
Who quote down precedents and cases,
Of ancient date, in ancient phrases ;
Hard lessons taught by deep-read sages
Whom mankind have revered for ages,
Of law the guardian and trustees,
And oracles in courts of justice ;
Forbid the courts to arbitrate,
And deal the jury proof by weight;
Would have all actions tried by rules,
A tenet fit for slaves and fools ;
And what is worst in land of freedom,
The judge and jury often heed 'em,
And Tom and John must lose their cause,
And why? Forsooth, they've broke the laws.
'T is liberty we have in view,
'T is liberty we all pursue.
To think, to speak, to act and do,
And none to say why do ye so ?
20 LIFE OF NATHANIEL CHIPMAN.
Sorely aggrieved at such sad doing,
"Which tends to work our utter ruin,
In edge of Wells, in log house met,
To rectify affairs of state,
We first appoint a moderator,
To stop or license every prater ;
And then to keep our votes in order,
With caution great appoint recorder,
John, who alone in time of need,
Of all convened could write or read,
Then after many a sage debate,
And argument of mighty weight.
Now heard from some what others said
Who 'd heard the constitution read.
Though some to this put in demurrer,
Averred wc all were in an error,
And swore they knew the constitution
Was but an heathenish delusion,
An image formed with many a head,
Like what they 'd heard in Bible read,
To which the assemblymen all swore
To love it, cherish and adore.
But all to this would not give credit,
Although they roundly swore and said it ;
As one agreed that we '11 petition
The assembly hence at every session,
So long as wc shall think it best,
To get our grievances redrcst ;
Inform them that their laws of course
Before they gain a binding force,
Must all be sent to this convention,
Or others, formed with like intention,
For their consent and approbation —
Such right wc have in legislation.
For those whom wc have thought most fitting
To vote for at each freeman's meeting,
Through lack of votes we never chose,
Or could not "o through lack of clothes —
LIFE OF NATHANIEL CHIPMAN. 21
The laws by us were never made,
What reason then they be obeyed ?
And don't these things in fact abridge us
Of all our rights and privileges ?
Beside, let fees be lessened down,
And judges sit for half a crown.
A half a crown has been the wages
Of common lab'ring men for ages;
And how can these who sit at ease
With nought to do, earn greater fees ?
But lest the world should think us partial,
And this is but a mobbish farce all,
Let them of us the judges make —
We 're ready or to give or take.
Nor do we lack men of discerning,
Of parts robust — a fig for learning,
Nor do we lack for judgelike gear,
We 've rusty wigs bobb'd to the ear,
And leathern doublets neatly made,
And aprons matched, in sign of trade ;
Striped linsey-woolsey vest and hose,
Which comely leather buttons close,
Huge bludgeons made of trusty oak,
Will settle wranglers every stroke,
And fit the hand of justice well
As sword of truest tempered steel.
Then lawyers from the courts expel,
Cancel our debts, and all is well.
But should they finally neglect
To take the measures we direct,
Still fond of their own power and wisdom,
We '11 find effectual means to twist them.
And now to prove we mean no evil,
To all the world we will be civil.
Firmly resolved to murder no man,
Plunder, nor rob, nor ravish woman.
Not but if hunger press us hard,
We II take a hen from neighbor's yard,
3
22 LIFE OF NATHANIEL CHIPMAN.
Or now and then a lusty sheep,
Or leg of pork while the owners sleep,
To this we have prescriptive right,
If done with caution, while 'tis night.
Nor can we less, ere we conclude,
Than give as due in gratitude,
Our thanks to Amos what's his name ?
Whose piece eclipses Bunyan's fame,
Well vindicates what we've agreed to,
And stops attorneys just as we do,
Proves hut for them we might refuse
To pay our long-forgotten dues,
To creditors might hid defiance,
And look at sheriffs, bold as lions.
The following, on the death of a child, occasioned
by a scald, was written in the year 1788. And it
is very certain that he never wrote a line of poetry
afterwards.
Why, dear Amanda, why that mournful look,
Why ceaseless flows the tear, why heaves the breast ?
Because thy babe, sweet innocent, is gone
To dwell embosomed in eternal rest.
Hard, hard the lot to see the lovely form
Just blooming into life, with cruel smart
And pangs convulsive yield a prey to death.
How agonizing to a parent's heart !
Flow then the tear and heave the aching breast
Paternal tenderness and nature bid ;
Yet not too long indulge the pleasing woe,
Nor wrong the living while you mourn the dead.
Ah ! can a mother soon to oblivion yield
Those little actions, pledge of future joy,
The endearing smile, the more than fond embrace,
And in distress the mute imploring eye.
LIFE OF NATHANIEL CHIPMAN. 23
Descend, sweet cherub, from the blest abode,
Oft deign to visit those thou 'st left behind,
In slumbers gently soothe a parent's cares,
And whisper comfort to the anxious mind.
To souls enlarged, though in a realm of bliss,
Such office sure must yield a sweet employ ;
To soothe parental grief, to calm distress,
Must give a zest e'en to celestial joy.
The reader will notice that the subject of this
memoir left college in the spring of the year 1777;
and in bringing together such of his poetical produc-
tions as it seemed proper to publish, I have gone
forward to the year 1788. We will now revert to
the spring of the year 1777, which was his senior
year, when he obtained a lieutenant's commission,
and immediately joined the army. At the ensuing
commencement his degree was conferred in his ab-
sence. While in the army he maintained a high
standing for an officer of his rank, but I have been
able to learn nothing very particular in relation to
him while there, except what appears from the fore-
going poetic epistle to Mr. Fitch, and from the fol-
lowing letters written by him to some of his class-
mates, of which he preserved copies.
The following letter to Elisha Lee is dated Valley-
Forge, April 10, 1778.
Dear Sir, — I have received letters from many of
my old friends, but from you, Fitch and Coggswell,
whom I esteemed my most intimate friends, not a
line. Letter after letter have I sent to no purpose —
they may have indeed miscarried, though the oppor-
tunities were very direct. I am informed by letter
24 LIFE OF NATHANIEL CHIP MAN.
from V , that you are still teaching a school at
Middletdwn.
How are the times in Connecticut ? What the
run of politics ? What plan of operations have your
chimney-corner generals struck out for the next cam-
paign ? They have doubtless something in agitation.
I saw an item of this in a letter from a gentleman of
your acquaintance ; I will give it you in his own
words, as near as I can recollect them. " It is a dis-
grace to humanity, to Britons and Americans, that
two such powerful armies, on whom the fate of Eu-
rope and America depends, should lie inactive. What
can Howe, what can Washington mean ? What stu-
pidity! It is not enough that we carried the cam-
paign through almost half the winter? No, we must
still keep the field in defiance of frost and snow,
or what at that season is still worse, rain and hail,
though one half the army was disbanded and the
other half worn out with fatigue. Nothing less will
suffice than the siege of Philadelphia in the depth of
winter. How mean, how despicable must such per-
sons appear to men of the least reflection. Persons
who never saw an army, or read of a battle, except
in a newspaper, who, for intelligence, depend on
common report at three hundred miles distance, and
yet would persuade the world that they could direct
the movements of an army better than an experi-
enced general on the spot, who is minutely informed
of every circumstance relative to both armies. That
men, who pretend to be rational, should speak in this
manner, is indeed ' a disgrace to humanity."
There is another thing that raises my indignation
LIFE OF NATHANIEL CHIPMAN. 25
still higher. I learn that it is a common topic of con-
versation in Connecticut, and, indeed, through New
England, that General Washington will not fight.
" Let Gates," say they, " take the command, and we
shall see an end of the war." General Gates has
done well, he has done gloriously ; I have as high a
sense of his merit as any man. But the truth is, Bur-
goyne failed himself, and Gates conquered him. Be-
sides, Gates was in a situation to command what
assistance he pleased, and that the flower of the con-
tinent. What shall we say of Washington here at
the head of fifteen, or at most, twenty thousand men,
for his army never exceeded that number, and one
third of them Pennsylvania militia, who for the most
part never dared to face an enemy. I have seen,
when our regiment was closely engaged, and almost
surrounded, seven hundred of them quit the field
without firing a gun. On the seventh of December,
the army of the enemy, exclusive of those left to gar-
rison Philadelphia, and the neighboring posts, amount-
ed to eleven thousand effective men. From this, you
may judge of their strength at the opening of the
campaign. There is not another state on the conti-
nent where so many traitors are to be found, as in
this, and yet General Washington bafHed all the strat-
agems of a wary, politic and experienced general,
and has several times fought him not unsuccessfully.
All General Gates has done does not render it even
probable, that in General Washington's situation, he
would not have been totally defeated. The army, to
a man, except those who conquered under Gates,
have the highest opinion of General Washington.
-'(i LIFE OF NATHANIEL CHIPMAN.
They love, I had almost said, they adore him. While
he lives, be assured, they will never brook the com-
mand of another. I cannot but observe here, that
nothing has been more detrimental to us, than pub-
licly exaggerating our strength, and diminishing that
of the enemy ; you will readily perceive the conse-
quences. When the campaign will open I know not.
The troops spend their time in discipline, in which
they make great proficiency. We have for our
inspector-general, Baron Steuben, who has been aid-
de-camp to the king of Prussia, and lieutenant-gen-
eral in his service.
The following letter to Mr. Lee was dated, Camp,
at Valley-Forge in April, 1778 :
Dear Sir, — I had just sealed my letter No. 3,
when yours of the 25th instant came to hand. I
have prevailed on the post to wait for this. I have
in a former letter given you a particular account of
my adventures since I saw you ; but I suppose the
letter miscarried. I have not now time to enter into
details. As to the situation of the armies, Howe is in
Philadelphia, and we are encamped and strongly for-
tified twenty miles above, on the banks of the Schuyl-
kill. I can give you no account of their intentions,
since, whatever may be the reason, I have not of late
been admitted to the cabinet. The officers of the
army are at present in a great dilemma, whether in
contempt of poverty and the unmerited reproaches of
their ungrateful constituents, they shall still continue
in the service of their country, or (|iiit, and join with
the rest of the world in the pursuit of riches. I depend
upon it, if something is nut dune, most oi' them will
LIFE OF NATHANIEL CHIPMAN. 27
resign, and that soon. I have no expectation of see-
ing you in the country till the close of another cam-
paign. I have a letter from Swift. Please make him
my compliments, and tell him I shall not fail of an-
swering him by the first opportunity.
The following letter to Mr. Fitch was dated White
Plains, July 30th, 1778.
My Old Friend, — I received yours of the 3d of
June on the 29th of the same month, at Monmouth,
the day after the action. I shall omit any account of
that affair. You must have seen more particular ac-
counts of it than I am able to give. Since we arrived
at the Plains I had the pleasure of meeting Coggs-
well and Barker again ; spent an evening with them
and Selden at Stanford, on their march to the east-
ward.
You tell me that you have neglected the Muses of
late ; I will venture to assign the ladies as the cause,
and, indeed, I cannot blame you for paying them
so much attention ; I should doubtless do the same.
But, my dear friend, by this neglect of the Muses you
not only injure yourself, but many heroes, who ex-
pected, as the only reward of their services, to have
their names hitched into rhyme by some poet.
As rising gales
That swell the spreading sails
To waft the merchant o'er the main,
As clouds, in vernal showers distill'd,
Enrich the new-sown field,
And joy the laboring swain,
Such is the muse to those who run
In virtue's arduous ways,
She bids them here enjoy renown
And sings to future times their praise.
28 LIFE OF NATHANIEL (HITMAN.
You will give full credit when I tell you that I have
just translated the above from Pindar. And to direct
you in your duty, I shall give you another lesson from
the same.
Not Envy's self shall blast the praise
Of those who jrain the martial prize;
The muse on towering wing shall rise
And sing them in immortal lays.
But wisdom is the sacred gift of Heaven
To use aright whate'er the gods have given.
1 fancy Pindar would shine in my translation. A
great pity it is that I have not leisure to give him to
the world in a new dress. But this and many other
plans of like importance are laid aside for want of
time. I have only time to add I am truly yours.
To Mr. Fitch, dated Camp, at Fredericksburg, Oc-
tober 3, 1778.
Dear Friend, — I lately saw a letter to our friend
B , in which you make very kind mention of my
name, but was not a little surprised that you have so
long neglected to write me. I immediately examined
the letters which have passed between us, and found
you were one in my debt ; and depend on it, I shall
demand payment without conscience.
Before this reaches you, I shall, in all probability,
have resigned. My wages, which are my sole de-
pendence, are by no means equal to my expenses. I
am already in debt, and a continuance in the service,
to me affords no other prospect than that of utter
ruin. If I lesion, unqualified as I am for business,
and without friends, at least powerful friends, I shall
find myself extremely embarrassed — and often apply
LIFE OF NATHANIEL CHIPMAN. 29
to myself certain lines of Thomson with a little alter-
ation :
A quick returning pang
Shoots through the conscious heart where honor still,
And great designs against the oppressive load
Of poverty, by fits impatient heave.
Although it is a great mortification to me to resign,
it is a greater to hold the rank, and not be able to
support the character of a gentleman. I forbear any
reflections on the country, yet I cannot but pity the
condition of the officers, many of whom I know to be
in a worse condition than myself, as they are more
reduced, and have more to provide for. It is very
shocking to think that many brave fellows who have
been accustomed to command others, and to be treat-
ed with respect, who have a thousand times exposed
their lives, have spent their estates and ruined their
constitutions in defence of their country, must soon
with their families be reduced to want. And perhaps
derided and insulted by those whom they have de-
fended. Forbid it, humanity ! forbid it Heaven. You
will, as a friend, pardon these apprehensions, gloomy
indeed, but, as I think, founded in reason.
I shall spend the winter in Salisbury, Connecticut,
in the study of law ; though I cannot but regret
that it is not in my power to spend considerable time
in general studies, before applying myself to a par-
ticular one. Opportunities of writing will doubtless
be less frequent after I leave the service, but I shall
embrace every one that occurs, and shall from your
friendship expect the same. And 1 will also promise
to write a better hand, or procure some one to copy.
1
30 LIFE OF NATHANIEL CHIPMAN.
Winter quarters arc now in agitation. Litchfield is
talked of for this division. Where they will be, is
uncertain as yet. I think, from all appearances, we
may reasonably conclude that the glorious contest
draws near a glorious conclusion, when, with the
blessing of heaven, we may enjoy the sweets of lib-
erty in peace.
To Mr. Fitch, dated Salisbury, 1st January, 1779.
My dfar Friend, — What mean you by silk bags?
Are you so unacquainted with modern fashions ?
Such bags have long been out of fashion with law-
yers. In their stead are introduced bags made of
harpies' skins. They are covered with a very soft
down, the color changeable like a chameleon, but not
like them stuffed with air. Their properties are em-
blematical not only of the present disposition of the
fraternity, but of the whole human race. Although
inanimate, they have a most voracious appetite. Had
Solomon lived in these times, he would have found
one tiling more which never cries enough. The
color, varying with the beholder's fancy, has such a
peculiar magic, that whoever has once fixed his eyes
upon them can never rest, until he has given up his
whole interest to be devoured.
I have not yet taken the wrangler's, I would say,
the attorney's oath, but expect to take it in March,
and then I shall probably settle in Bennington, where
I shall indeed be rara avis in tcrris, for there is not
an attorney in the state. Think, Fitch, think what a
figure I shall make, when I become the oracle of law
to the state of Vermont.
LIFE OF NATHANIEL CHIPMAN. 31
To Mr. Fitch, dated Salisbury, March 20th, 1779.
Well, my dear friend, I have at length passed the
Rubicon, and am in full march to the capital of the
empire. In plain language, I have been dubbed an
attorney, and propose, in a few days, to take up my
abode in the state of Vermont. It would be the
height of my wishes to spend the summer at our alma
mater, with you and others of my classical friends.
But I am obliged to bid adieu to all these charming
prospects, and plunge into business. I must hope,
however, by favor of the Muses, to participate in your
happiness. But how, my friend, how happens it that
you decline the desk ? You, a person, as we thought,
destined, by nature and inclination, to be an honor to
that sacred employment. Are you deterred by a few
of our classmates who are engaged in it, and who are
a disgrace to the order, or rather to themselves in
the order? Though I wholly disclaim the thought of
being a deist, as some have represented me, I own
that I am somewhat liberal in my religious senti-
ments, but not too liberal to believe that none can do
more to promote the happiness of man, whether in
public or private life, than a learned and pious clergy.
After all, I say not this to deter you from the study of
the law. I should be very happy to have you as a
brother as well as a friend in that profession. One
thing, however, we must both forget, that is our diffi-
dence ; it has no place at the bar. Ha, ha, ha. I
cannot but laugh to think what a flash we shall make,
when we come to be members of congress. And
then again, I am vexed when I think how many steps
there are by which we must mount to that pinnacle
32 LIFE OF NATHANIEL CHIPMAN.
of happiness. Let 's see. First, an attorney ; then,
a selectman ; a huffing justice ; a deputy ; an assist-
ant ; * a member of congress. Now, is not this a
little vexing ? However, we must make the best of
it. Since we shall in future be at so great a distance
from each other, I feel anxious for a continuance of
our correspondence. Should Tracy remain through
the summer at Litchfield, it may be carried on through
him, or perhaps some other w;iy more direct may be
found. But the difficulty is, I shall not know to what
place to direct my letters. Nor will you, for I am
not fully determined in what place I shall settle. In
the direction of your letters, in future, you will omit
lieutenant. I shall not be known by that title in
Vermont.
The following is a copy of the letter in which
Lieutenant Chipman resigned his commission. It
is dated Camp Fredericksburg, October 10, 1778,
and addressed to General Washington, the com-
mander-in-chief.
May it please your Excellency, — With reluct-
ance would I quit the service of my country, could
I subsist myself in it with honor. Every one must
be sensible that a subaltern's wages are in no degree
equal to his expenses ; he must necessarily have some
other resources, or make a contemptible appearance ;
he must, in fact, become a beggar. Jf I may be
allowed to judge my own heart, I am ready, in behalf
of my country, to sacrifice every consideration of
interest as far as may be consistent with honor.
1 A representative in the assembly, a member of the court in Con-
necticut.
LIFE OF NATHANIEL CHIPMAN. 33
When I engaged in the service, I had no fortune of
my own. My parents, on whom alone was my whole
dependence, were, the last year, driven from their
habitation, plundered, and, for the present, reduced
to poverty ; so that my wages have been my only
support. These, at first, afforded an honorable sub-
sistence ; but, so far is this from being the case at
present, that I find it impossible to continue in the
service without involving myself deeper in debt,
without the least prospect of being able to pay the
debts which I have already contracted, unless I can
obtain a dismission. I feel a great reluctance to that
dependence which is the necessary consequence of
being in debt; for, as I am unable to answer the
demands of my creditors, it will be in their power to
ruin me when they please.
It is, indeed, a great mortification to be obliged to
resign, but a greater to hold the rank, while unable
to support the character, of an officer. Under these
circumstances, which are my own without exaggera-
tion, I am persuaded that it is a duty which I owe
to myself and others, if possible, to procure a dis-
charge from the service. This is my request, which
I hope, on a thorough examination, will not be
thought unreasonable.
It seemed necessary to resort to the foregoing let-
ters, they being the only source of information rela-
tive to that part of his life which was spent in the
army. It was indeed understood at the time, that he
kept with him in the camp his Greek and Latin
classics. And that instead of losing his knowledge
34 LIFE OF NATHANIEL CHIP MAN.
of the languages, after he left college, as is too often
the case with college graduates, he made great profi-
ciency in perfecting his knowledge of them. That
he paid this attention to the languages while in the
army is rendered very certain by the known fact that
he paid the same attention to them in after life. He
was frequently involved in business of a laborious
and perplexing nature, and yet he would find time to
devote to the acquisition of knowledge. And he
always gained time by wasting less time in sleep than
most others. Until the latter part of his life, from
five to six hours sleep in twenty-four was all that his
constitution required. While in college, and in his
after life, he was in the habit of reading several
hours by candlelight in the morning, before others
were up, except during the short nights in summer.
Fortunately, until near the close of his life, his eyes
would bear this hard usage without injury. He un-
doubtedly pursued this course while in the army,
and must have found much time for reading and
writing, especially while in winter quarters. And
yet, notwithstanding his confirmed habit of improving
every spare moment in his literary pursuits, I was not
quite prepared for the fact, that so soon after the dust
and smoke of the battle of Monmouth had passed oil',
he was discovered intently engaged iii translating
Pindar.
He was very fond of works of fiction, and read all
the novels that came in his way, and read them with
uncommon rapidity. But he resorted to novels and
other light reading, for relaxation, when the mind
was fatigued by intense application too lung con-
LIFE OF NATHANIEL CHIPMAN. 35
tinued. He seemed to have no taste for those diver-
sions to which most others resort for relaxation. He
never, either while in college or in after life, spent
much time in the study of mathematics. Whenever
he had occasion to solve a mathematical question,
he would do it with great ease and rapidity, but
he never attended to mathematical studies, for the
purpose of disciplining his mind. He seemed to be
conscious that his mind required no such discipline.
It has been seen that he was admitted to the bar,
in the county of Litchfield, and state of Connecticut,
in March, 1779 ; after having studied law between
four and five months. He soon after set out for
Vermont, and arrived at his father's house in Tin-
mouth on the 10th of April. He settled inTinmouth,
that being then the shire town in Rutland county,
and commenced practice in the then four counties of
Bennington and Rutland, Windham and Windsor,
and was immediately a prominent member of the
bar. He was most distinguished in the argument of
questions of law to the court, but frequently argued
causes to the jury with great effect. When it was
his business to detect and expose fraud or oppression,
he excelled as an advocate. But it was soon ob-
served that he did not argue a bad cause as effect-
ually as some others. And after I came to the bar
I thought I could discover, especially if I could catch
his eye, whether he had confidence in his case or
not. The fact seemed to be, that he had acquired
so confirmed a habit of seeking after truth con-
scientiously, that he could not readily enter into the
36 LIFE OF NATHANIEL CHIPMAN.
feelings of his client, imbibe his prejudices, and with
him have a full conviction of the justice of his cause,
without which no advocate can make the most of a
bad cause. I shall enlarge on this subject when I
come to treat of his qualifications as a judge.
CHAPTER II.
Secret Negotiations with the British Authorities in Canada — Extract
from the " Life of Brant," containing a Charge of Criminality against
the Leading Men in Vermont — Vindication of those Patriots against
the Charge.
It has become a matter of history, and is generally
known, that at the session of the legislature holden at
Charlestown, in October, 1781, Governor Chittenden
received a despatch from General St. Ledger, making
an excuse for the killing of Tupper, an American
sergeant, by a British scout ; and which necessarily
disclosed the secret armistice, which had sometime
before been agreed on, between the executive of this
state and the governor of Canada. The contents of
the despatch had in some way become known to cer-
tain individuals who were not in the secret. This at
once produced a high degree of excitement, and
raised a clamor which it was necessary to silence
without delay. And no other mode of doing this
occurred at the time but that of remoulding the
despatch, leaving out everything which related to the
armistice, so that it might be communicated to the
legislature. At this time there were two parties in
the state. At the head of one party was Governor
Chittenden, Ira Allen and others, called the old corps.
Nathaniel Chipman was ranked with the opposition,
" * JSL JL •
38 LIFE OF NATHANIEL CHIPMAN.
yet Governor Chittenden had such confidence in his
talents and patriotism, that he committed the despatch
to him for revision ; which task he speedily per-
formed, and in a satisfactory manner. For when the
revised despatch was read in the asscmhly, they were
satisfied that their suspicions had been without foun-
dation ; the excitement was allayed, and the legisla-
ture proceeded with the ordinary business of the
session. It will be proper, in this place, to make some
remarks upon this secret negotiation with the gover-
nor of Canada, for the subject of this memoir was
connected with it.
Certain historians, unacquainted with the early
history of this state, have not scrupled to charge
Governor Chittenden and his compatriots with trea-
son against the United States, for entering into a
secret negotiation with their enemies, with the inten-
tion of joining the British in the war of the revolu-
tion — a charge without the least foundation in fact.
And should the present generation sutler this stain to
rest on the characters of our fathers, so distinguished
among that band of patriots who achieved our inde-
pendence, it would indicate a degeneracy which they
have not yet reached. Facts, which have ever been
known to the people of this state, will convince
every unprejudiced mind that, not only were Governor
Chittenden and the executive council of this state
actuated by the purest patriotism, but that their
acity and wisdom were remarkably conspicuous
through the whole of the negotiation, from the com-
mencement to its close ; a period of several years ;
and that it proved, as they intended and foresaw it
LIFE OF NATHANIEL CHIPMAN. 39
would prove, as beneficial to the United States as to
the people of this state.
At the commencement of the revolutionary war,
the people on the New Hampshire grants were more
united in defence of the country, than the people in
any one of the then United States. A less propor-
tion of tories were found among them than were
found in the other states. The causes of this are
obvious to those who were intimately acquainted
with our early history. Great numbers of the early
settlers on the New Hampshire Grants, were of the
sect of new-lights or separates, who fled from perse-
cution in the New England States, and found an
asylum here, where they enjoyed their religious lib-
erty. And history informs us that every people on
earth who have by persecution been forced to con-
tend for their religious liberty, have ever been pre-
pared to contend with equal perseverance for their
civil rights. Accordingly, in the contest with Great
Britain for our civil and political rights, this sect of
Christians in the New Hampshire grants were firmly
united in the cause of their country. It is believed
there was not a single exception.
Add to this, that the people of this territory had for
a number of years been united and organized in op-
position to the unjust claim of New York, and had
thus far been successful. When therefore their rights
were invaded from another quarter, they were per-
fectly prepared for resistance. They had no habit of
quiet submission to the powers that be, to be broken
up, but were already harnessed for the conflict. Still
further, the government of Great Britain had decided
40 LIFE OF NATHANIEL CHIP MAN.
that this territory was within the jurisdiction of New
York. Nothing therefore was to be expected from
that government but a confirmation of the New York
title, should the United States fail of establishing their
independence. On the other hand they had reason
to hope, that if the United States should achieve
their independence, the claim of New York would be
set aside, and Vermont would become an indepen-
dent state. Such a people, thus situated, could not
but be united as they were in the cause of their
country, and support it as they did to the last, with
unabated ardor. Could such a people have been
influenced to join their enemies? a step forbidden
alike by patriotism and by self-interest.
Again, after the battle of Bennington, and the
capture of Burgoyne, scarce a doubt was entertained
that the United States would achieve their inde-
pendence. In what situation, then, was Vermont to
be placed by this secret negotiation ? Was she to
become a British province, or was she to be an inde-
pendent state under the protection of Great Britain ?
In other words, in case of a war between the United
States and Great Britain, was this to be made the
common fighting ground, and the inhabitants exposed
to be plundered by both armies ?
I had proceeded thus far, calculating to conclude
the subject with some brief remarks — believing that,
from what has been said, it would be admitted by all,
that there is not the least foundation for the charge of
criminality against the leading men in Vermont, in
their secret negotiation with the British. But on re-
viewing the subject, I am satisfied that duty requires
LIFE OF NATHANIEL CHIPMAN. 41
a further examination of it. Can we be satisfied ?
Can we be excused, if we suffer the character of our
patriot fathers, who achieved the independence of
the state, and who acted so distinguished a part in
achieving our national independence, to go down to
posterity, stained with the most unfounded charges of
treason against their country, without showing, as it
is in our power to do, that the overt acts of treason
specified, were dictated by the purest patriotism, and
as intended, afforded essential aid in the war of in-
dependence ? This must not be, but their acts and
intentions must be truly stated, that posterity may
have a full knowledge of their character. I feel this
duty to be more imperative, because this charge,
made in the most formal manner, with a detail of the
evidence in support of it, is contained in that interest-
ing work, " The Life of Joseph Brant," a work which
will be read with interest by future generations. The
author has collected and detailed all the evidence on
which he founds his charge, and on which he pro-
nounces sentence. Now to me this evidence appears
not only insufficient to prove the charge, but wholly
irrelevant. Yet I have good reason to distrust my
own judgment in relation to the weight of this evi-
dence, as I have a personal knowledge of the facts in
the case. For although I was too young at the time
of this secret negotiation to be an actor in public
affairs, yet I lived with my brother, who was a
principal actor in all public transactions at that day,
and, as we have seen, was concerned in this negotia-
tion ; and from him I had at the time a knowledge of
it, from near the commencement to the close, liut
I J LIFE OF NATHANIEL CHJPMAN.
never did I hear from him, or any one of the lead-
ing men, an intimation that they thought of com-
plying with the propositions of the British. But, on
the contrary, whenever they met, this secret negotia-
tion was usually a subject of merriment and exulta-
tion, that the British were so completely, and so long
deceived, to their own injury, and our advantage.
As I have said, I must be a very incompetent judge
of the weight of the evidence which Mr. Stone has
adduced, to prove a charge which I knew to be un-
founded. Surely then, the reader will think it quite
reasonable, that I submit the evidence to his better
judgment, with such remarks as to its relevancy and
weight as shall occur to me.
To do this fairly, and to enable the reader to form
a satisfactory opinion in the case, I regret that it is
necessary to make the following long extract from
the second volume of the "Life of Brant," p. 137.
" A summary view of the controversy between
New York and the people of the New Hampshire
Grants, has already been given ; in addition to which,
several incidental allusions have been made to the
equivocal movements and intentions of Ethan Allen.
Reference was also made, by way of a note in the
preceding chapter, to a special message from Gov-
ernor Clinton to the legislature of New York, com-
municating important information respecting the de-
signs of Allen and his associates, which had been
derived from two prisoners who had escaped from
Canada in the autumn of the present year — John
Edgar and David Abecl. The substance of the state-
ments of these men was, that several of the leading
LIFE OF NATHANIEL CHIPMAN. 43
men of the New Hampshire Grants were forming an
alliance with the king's officers in Canada. Among
these leaders were Ethan and Ira Allen, and the two
Fays. A man named Sherwood, and Doctor Smith
of Albany, whose name has already been mentioned,
were the agents of the negotiation on the part of Great
Britain ; and their consultations were sometimes held
at Castleton, on the Grants, and sometimes in Can-
ada. According to the statement of Edgar, it was
understood that the Grants were to furnish the king
with a force of two thousand men. Mr. AbeePs
information was, that fifteen hundred was the number
of men to be furnished, under the command of Ethan
Allen. Mr. Abeel also stated, that Ethan Allen was
then in Canada upon that business, and that he had
seen Major Fay at the Isle au Noix, on board of one
of the king's vessels ; and that he, Fay, had exchanged
upward of thirty Hessians, who had deserted from
Burgoyne's army, delivering them up to the British
authorities. The statements of Edgar and Abeel,
the latter of whom had been taken a prisoner at Cats-
kill the preceding spring, were given under the
sanction of an oath ; and, although they were not
fellow-prisoners, — and although they had derived
their information from different sources, — and al-
though escaping at different times, under dissimilar
circumstances, and by routes widely apart, — yet
there was a strong coincidence between them. A
third account, submitted to the legislature by the
governor, was somewhat different, and more particu-
lar as to the terms of the proposed arrangement.
In this paper, it was stated, first, that the territory
44 LIFE OF NATHANIEL CHIPMAN.
claimed by the \ crmontese should be formed into
a distinct colony or government. Secondly, that the
form of government should be similar to that of
Connecticut, save that the nomination of governor
should be vested in the crown. Thirdly, that they
should be allowed to remain neutral, unless the war
should be carried within their own territory. Fourth-
ly, they were to raise two battalions, to be in the pay
of the crown, but to be called into service only for
the defence of the colony. Fifthly, they were to be
allowed a free trade with Canada. General Haldi-
mand had not deemed himself at liberty to decide
definitely upon propositions of so much importance,
and had accordingly transmitted them to England for
the royal consideration. An answer was then ex-
pected. Such was the purport of the intelligence ;
and such was the weight of the testimony, that the
governor did not hesitate to assert that they " proved
a treasonable and dangerous intercourse and connec-
tion between the leaders of the revolt in the north-
eastern part of the state and the common enemy."
The fact is, according to the admissions, and the
documents published, by the Vermont historians them-
selves, that the people of Vermont, though doubtless
for the most part attached to the cause of the country,
nevertheless looked upon New York "as a more
detested enemy " than Great Britain ; and the officers
of the latter were not slow in their efforts to avail
themselves of the schism. Accordingly, Colonel
Beverly Robinson sought to open a correspondence
with Ethan Allen as early as March, 1780. The first
letter was handed to Allen in Arlington, but was not
LIFE OF NATHANIEL CHIPMAN. 45
answered. A second letter from Robinson was re-
ceived by Allen in February, 1781, which, with the
first, he enclosed to congress in March, accompanied
by a letter, plainly asserting the right of Vermont to
agree to a cessation of hostilities with Great Britain,
provided its claims, as a State, were still to be rejected
by congress. It does not appear, however, that the
threat had any effect upon that body.
" In the months of April and May following, the
governor and council of Vermont commissioned
Colonel Ira Allen, a brother of Ethan, to proceed
to the Isle au Noix, to settle a cartel with the British
in Canada, and also, if possible, to negotiate an
armistice in favor of Vermont. The arrangements
for this negotiation were conducted with the most
profound secrecy, only eight persons being cognizant
of the procedure. Colonel Allen, accompanied by
one subaltern, two sergeants, and sixteen privates,
departed upon his mission on the first of May, and,
having arrived at the Isle au Noix, entered at once
upon his business; negotiating with Major Dundas,
the commander of that post, only on the subject of
an exchange of prisoners, but more privately with
Captain Sherwood and George Smith, Esq., on the
subject of an armistice. The stay of Allen at the
island was protracted for a considerable time, and the
conferences with the two commissioners, Sherwood
and Smith, on the subject of the political relations
of Vermont, were frequent, but perfectly confidential ;
Allen carefully avoiding to write anything, to guard
against accidents. But, from the beginning, it seems
to have been perfectly understood, by both parties,
46 LIFE OF NATHANIEL CHIPMAN.
that they were treating * for an armistice, and to
concert measures to establish Vermont as a colony
under the crown of Great Britain.' In the course
of the consultations, Allen freely declared ' that such
was the extreme hatred of Vermont to the State of
New York, that, rather than yield to it, they would
see congress subjected to the British government,
provided Vermont could be a distinct colony under
the crown on safe and honorable terms.' He added,
' that the people of Vermont were not disposed any
longer to assist in establishing a government in Amer-
ica, which might subject them and their posterity
to New York, whose government was more detested
than any other in the known world.' These were
encouraging representations in the ears of his ma-
jesty's officers ; and, after a negotiation of seventeen
days, the cartel was arranged, and an armistice ver-
bally agreed upon, by virtue of which hostilities were
to cease between the British forces and the people
under the jurisdiction of Vermont, until after the
next session of the legislature of Vermont, and even
longer, if prospects were satisfactory to the com-
mander-in-chief in Canada. Moreover, as Vermont
had then extended her claims of territory to the
Hudson River, all that portion of New York lying
east of the river, and north of the western termination
of the north line of Massachusetts, was included in
the armistice. It was also stipulated, that, during
the armistice, the leaders in Vermont were to pre-
pare the people by degrees for a change of govern-
ment, and that the British officers were to have free
communication through the territory of the new
State, as it claimed to be.
LIFE OF NATHANIEL CHIP MAN. 47
"But, notwithstanding the veil of secrecy drawn
over the proceedings, dark suspicions got afloat that
all was not right. The sincere whigs among the
people of the Grants became alarmed, and were
apprehensive that they might be sold ere yet they
were aware of it. When the legislature met, the
people, whose jealousies had been awakened, flocked
to the place of meeting, to ascertain whether all was
well ; and it was only by much dissimulation on the
part of those who were in the secret, that the friends
of the Union were pacified. There were also other
spectators present, from different States, who felt an
equal interest to ascertain whether the great cause
of the nation was not in danger of being compro-
mised. The result was, that the agents succeeded in
throwing dust into the eyes of the people ; and so
adroit was their management, that the Aliens held
communication with the enemy during the whole
summer, without detection. On more than one oc-
casion, British guards, of several men, came to the
very precincts of Arlington, delivering and receiving
packages in the twilight.
" In September the negotiations were renewed, the
commissioners of both parties meeting secretly at
Skenesborough, within the territory of New York,
and further progress was made in the terms of the
arrangement, by which Vermont was in due time to
throw herself ' into the arms of her legitimate sover-
eign.' Sir Frederick Haldimand, however, was be-
coming impatient of longer delay ; and a strenuous
effort was made for an immediate and open declara-
tion on the part of Vermont. To this proposition
48 LIFE OF NATHANIEL CHIP MAN.
the Vermont commissioners, Ira Allen, Joseph Fay,
and a third person, whose name is not given, pleaded
that there had not yet been time to prepare the
people for so great a change, and that they should
require the repose of the approaching winter for that
object. It was at length stipulated, however, that,
inasmuch as the royal authority had been received
by Sir Frederic Haldimand for that purpose, an army
might ascend the lake, with proclamations offering to
confirm Vermont as a colony under the crown, upon
the principles and conditions heretofore indicated, on
the return of the people to their allegiance ; the
commissioners interposing a request, that the general
commanding the expedition would endeavor to ascer-
tain the temper of the people before the proclamation
should be actually distributed. The legislature of the
Grants assembled at Charlestown in October. Mean-
time, General St. Leger, agreeably to the arrange-
ment with Allen and Fay, ascended the lake to
Ticonderoga, with a strong force, where he rested.
In order to save appearances, the Vermontese had
stationed a military force on the opposite shore, under
the command of General Enos, to whom was neces-
sarily confided the secret. But on neither side would
it answer to confide the secret to the subordinates.
They must, of course, regard each other as enemies
in good faith ; and the fact that they did so consider
themselves was productive of an affair, which placed
the Vermontese in a peculiarly awkward predicament.
The circumstances were these: In order to preserve
at least the mimicry of war, scouts and patrols were
occasionally sent out by both parties. Unluckily,
LIFE OF NATHANIEL CHIPMAN. 49
one of these Vermont patrols happened one day to
encounter a similar party from the army of St. Leger.
Shots were exchanged with hearty good will ; the
Vermont sergeant fell, and his men retreated. The
body was decently interred by order of General
St. Leger, who sent his clothes to General Enos,
accompanied by an open letter, apologizing for the
occurrence, and expressing his regret at the result.
It was hardly probable that an unsealed letter would
pass through many hands, and its contents remain
unknown to all save the person to whom it was
addressed. Such, certainly, was not the fact in
regard to the letter in question. Its contents trans-
pired ; and great was the surprise at the civility of
General St. Leger, in sending back the sergeant's
clothes, and deploring his death. A messenger was
despatched by General Enos to Governor Chittenden
at Charlestown, who, not being in the secrets of his
employers, failed not, with honest simplicity, to pro-
claim the circumstances of the sergeant's death, and the
extraordinary message of General St. Leger. The con-
sequence was excitement among the people assembled
at Charlestown, attended with a kindling feeling of
distrust. ' Why should General St. Leger send back
the clothes ? ' ' why regret the death of an enemy ? '
were questions more easily asked by the people than
capable of being safely and ingenuously answered
by their leaders. The consequence was, a popular
clamor unpleasant to the ears of the initiated. Major
Runnels confronted Colonel Ira Allen, and demanded
to know why St. Leger was sorry for the death of
the sergeant. Allen's answer was evasive and un-
50 LIFE OF NATHANIEL CHIPMAN.
satisfactory. The major repeated the question, and
Allen replied that he had better go to St. Leger at
the head of his regiment, and demand the reason for
his sorrow in person. A sharp altercation ensued,
which had the effect, for a short time, of diverting
the attention of the people from the despatches,
which they had been clamoring to have read. These
were precious moments for the governor and the
negotiators with the enemy. The board of war
was convened, the members of which were all in
the secret, and a set of pretended letters were hastily
prepared, from such portions of General Enos's
despatches as would serve the purpose in hand,
which were read publicly to the legislature and the
people, and which had the effect of allaying the ex-
citement and hushing suspicion into silence.
" Meantime, a rumor of the capture of Cornwallis
and his army at Yorktown was wafted along upon
the southern breeze ; the effect of which was such
upon the people, as to induce Allen and Fay to write
to the British commissioners with St. Leger, that it
would be imprudent, at that particular conjuncture,
for him to promulgate the royal proclamation, and
urging delay to a more auspicious moment. The
messenger with these despatches had not been longer
than an hour at the head-quarters of St. Leger at
Ticondcroga, before the rumor respecting Cornwallis
was confirmed by an express. The effect was pro-
digious. All ideas of further operations in thai
quarter were instantly abandoned; and, before eve-
ning of the same day, St. Leger's troops and stores
were re-embarked, and, with ;i fair wind, he made
sail immediately back to St. Johns.
LIFE OF NATHANIEL CHIPMAN. 51
" From this narrative of facts, as disclosed in Lon-
don, many years afterward, by Colonel Ira Allen
himself, it will be seen at once that General Heath
was in error, when, in his general orders of Novem-
ber 9th, he attributed the inaction of General St.
Leger, and his ultimate retreat, to the preparations
of Lord Stirling and Generals Stark and Gansevoort
for his reception.
" The digression which has been judged necessary,
to elucidate this portion of the operations in the
north during the summer and autumn of 1781, may
by some readers be thought wide of the leading
design of the present work. Still, it is believed that,
to a majority of the public, the facts detailed in this
connection will be new, as they must be curious in
the estimation of all. They are, at the same time,
held to be essential to a just appreciation of the diffi-
culties with which the military officers in the northern
department, and the government of the State of New
York, were obliged to contend during the period
under consideration. Strong light is also reflected
by them upon that portion of the history of the war
itself with which they are interblended. Every close
reader of American history is aware that there was
a correspondence, of some description, between the
leaders of the people occupying the New Hampshire
Grants and the common enemy, during the later
years of the revolutionary war. But neither the
precise character, nor the extent, of that correspond-
ence, has been generally understood ; while it has,
for obvious reasons, been the desire of those most
directly concerned in those matters, to represent the
52 LIFE OF NATHANIEL CHIPMAN.
whole as a game of dissembling with an enemy who
had attempted to tamper with the patriotic sons of
the Green Mountains. 1 Be this as it may, it is in
the secret proceedings of the Vermont conspirators,
that the key is found to the mysterious movements
of the enemy on Lake Champlain, which had so
greatly harassed the American commanders at the
north during that autumn."
We will take the author's statement of the question
which he has decided, and which we propose to
examine. Were Governor Chittenden and the lead-
ing men of Vermont, in their secret negotiations
with the British, playing a game of dissembling with
an enemy who had attempted to tamper with the
patriotic sons of the Green Mountains, or had those
leading men a serious intention to listen to the
proposals of the British ? The author has decided
this question against the leading men of Vermont, —
that they had a serious intention to listen to the pro-
posals of the British. As this decision is a reversal
of the decision made by Sparks and others, it must
1 " Sparks, adopting the views of earlier writers, has noticed the case in
this favorable aspect, in his late sketch of the life of Ethan Allen. The
author certainly agrees with Mr. Sparks in the opinion that ' there was
never any serious intention, on the part of the Vermontese, to listen to
the British proposals.' But, with great deference, after a full examina-
tion of the case, the same cannot he said of t lie leaders of the Ver-
montese. They had determined that New York should he dismembered;
and, if tiny could nut force themselves into the confederation as a state,
1 1 1 1 ■ v were willing in fall back into the arms of Great Britain as a colony.
But it is very certain, from the conduct of the people of the Grants when
thi'y heard of St. Lcger's regrets at the killing of the sergeant, that they
were prepared for no such arrangement."
LIFE OF NATHANIEL CHIPMAN. 53
be taken that Mr. Stone has stated all the evidence
on which he founded his opinion ; and it seems that
he considered most of it as new-discovered evidence,
unknown to those who had formed a different opinion
in the case. Such, I understand, is the evidence of
Edgar and Abeel, on which great reliance seems to
be placed. A statement of facts is made to establish
their credibility, or rather to remove all suspicion
that they might have been connected together, and
fabricated their testimony. Now, had their evidence
the least bearing on the point in question, I should
not hesitate to say that it is deserving of no credit
whatever. Where, and how, were the thirty Hessian
deserters from Burgoyne's army caught by Major
Fay, to be delivered up to the British authorities?
Great numbers of the German soldiers, principally
young men, who took a fancy to this country, and
determined not to return to their father-land, deserted
from Burgoyne's army after the capture, and settled
in all parts of New England. But how, and by
whom, was Major Fay authorized to seize these
peaceable citizens, for such they were, and deliver
them up to the British authorities? And, surely,
it was not by their own consent that they were deliv-
ered up for punishment. This part of the testimony
of these witnesses, then, is a sheer fabrication, and
discredits their whole testimony. But, as before
hinted, it is wholly unnecessary to impeach these
witnesses, for the obvious reason that, if true, their
testimony has no bearing on the point in question.
It only proves what was known to all, and admitted
by all, that the leading men in Vermont entered into
7
54 LIFE OF NATHANIEL C'HIPMAN.
a secret negotiation with the British authorities in
Canada, and nothing more ; having no tendency to
prove with what design they entered into that nego-
tiation.
The next evidence, is a more particular account of
the negotiation communicated to the legislature of
New York by Governor Clinton, if, indeed, it can be
considered as evidence, it being only the declaration
of Governor Clinton, that such was the purport of
the intelligence which he had received, and such was
the weight of the testimony, referring, of course, to
the testimony of Edgar and Abeel, that he did not hes-
itate to assert that they proved a treasonable and dan-
gerous intercourse and connection between the lead-
ers of the revolt, in the north-eastern part of the
state, and the common enemy. It is obvious that
this adds nothing to the testimony of Edgar and Abeel,
except the opinion of Governor Clinton. And this
without the slightest imputation upon the governor,
we may say, is deserving of no weight. Extremely
jealous as he Avas of the people of Vermont, informa-
tion of a secret negotiation between them and the
common enemy, would, to his mind, be the clearest
evidence of treason. Indeed, every one whose mind
was unbiased, being informed only of the existence
of the secret negotiation, would have formed the same
opinion.
The author then states the fact, that the people of
Vermont, although doubtless for the most part attach-
ed to the cause of their country, nevertheless looked
upon New York as a more detested enemy than
( treat Britain ; a statement not exactly in accordance
LIFE OF NATHANIEL CHIPMAN. 55
with the final decision of the author. The next evi-
dence is, that in the month of March, 1780, Ethan
Allen received a letter from Beverly Robinson, a
British officer, of which letter it does not appear that
any notice was taken. But on the receipt of a second
letter from Robinson in February, 1781, Allen trans-
mitted both letters to congress, accompanied by a
letter from himself, in which he asserted the right in
Vermont to agree to a cessation of hostilities with
Great Britain, provided its claims as a state were still
to be rejected by congress. It does not appear, says
the author, that the threat had any effect upon that
body. And why ? Because congress knew that trai-
tors never truly disclose their designs to those whom
they are betraying. The next evidence is a more de-
tailed account of the negotiation at the Isle au Noix.
The author says, that in the course of the consulta-
tion, Ira Allen freely declared, that such was the ex-
treme hatred of Vermont to the state of New York,
that rather than yield to it, they would see congress
subjected to the British government, provided Ver-
mont could be a distinct colony under the crown, on
safe and honorable terms. He added, that the peo-
ple of Vermont were not disposed any longer to assist
in establishing a government in America, which might
subject them and their posterity to New York, whose
government was the most detested in the known world.
These, it is said, were encouraging representations in
the ears of his majesty's officers. They were so, be-
cause Allen forgot to relate the concluding part of
the story — that nothing on earth could ever induce
the people of Vermont to submit either to the govern-
56 LIFE OF NATHANIEL CHIPMAN.
ment of New York or to the government of Great
Britain. After a negotiation of seventeen days, an
armistice was verbally agreed upon, by virtue of
which, hostilities were to cease between the British
forces and the people of Vermont until after the next
session of their legislature.
It is unnecessary to examine the evidence contain-
ed in the extract any farther in detail ; but the reader
is requested to examine it, and if he can find any
fact proved, or even stated, inconsistent with the alle-
gation that the leading men in Vermont were only
playing a game of dissembling with the enemy, hav-
ing no intention of listening to their proposals, let it
be noted, and have its due weight. It is presumed,
however, that he will find nothing of the kind, and
that he will take this general view of the subject.
The British authorities in the province of Canada,
knowing that for a number of years a bitter conten-
tion had existed between the people of Vermont and
the government of New York, and knowing, also, as
they undoubtedly did know, that congress had passed
a resolution, declaring that the independent govern-
ment, attempted to be established in Vermont, could
derive no countenance or support from any act or
resolution of congress ; and being deceived, as the
British were, through the whole of the revolutionary
war, in relation to the number of loyalists in the
States, and having no adequate knowledge of their
rebellious subjects, they naturally compared them to
a British mob ; an ignorant, unstable, changeable
multitude, who might be easily induced to return to
their allegiance under the crown ; and they had no
LIFE OF NATHANIEL CHIPMAN. 57
doubt but that the people of Vermont might be
induced to separate themselves from the United
States, and become a British colony. Entertaining
these views, the two letters were written by Robinson
to Allen, proposing an armistice. Governor Chit-
tenden, and other leading men in Vermont, being
consulted, it was concluded that something might be
made out of these letters by transmitting them to
congress, at the same time asserting the right of
Vermont to agree to a cessation of hostilities with
Great Britain, calculating that congress might be
induced to delay a decision in favor of New York,
lest they might drive Vermont to form a connection
with the British, especially as congress had been
divided on all questions relating to Vermont. And
who will say that their calculations wholly failed as
to the effect of their proceedings upon congress?
Without adverting to these proceedings, who will un-
dertake to account for the singular, vascillating policy
of congress in relation to Vermont during the whole
of the revolutionary war. The leading men in Ver-
mont had a still stronger inducement to agree with
the British on an armistice. Our frontiers were ex-
posed to the enemy, who then had in the province of
Canada a disposable force of seven thousand men.
But an armistice is agreed on by belligerents, with a
view to ulterior arrangements. To induce the Brit-
ish, then, to agree upon an armistice, it was neces-
sary on the part of Vermont to make such proposi-
tions to them as they should think would be advan-
tageous to themselves, and such as might appear to
be made with sincerity on the part of Vermont. And
58 LIFE OF NATHANIEL CHIPMAN.
what propositions could be made more advantageous
to the British, or more natural on the part of Ver-
mont, than the proposition that Vermont should de-
tach herself from the L'nited States and become a
British province. Accordingly this proposition was
made and an armistice agreed on. How natural,
then, was the declaration of Ira Allen, during his ne-
gotiation with the British at the Isle au Noix. The
author says, that AMen freely declared, &c. ; the word
freely is evidently used to give to the transaction a
darker shade ; but he might have given the transac-
tion a much darker shade, in his own view, had he
said that Allen declared in the most positive manner,
and it would also have been more correct. For
Allen's object was to impress on the minds of the
British negotiators the strongest conviction that the
leading men in Vermont had fully determined to de-
tach themselves from the United States, and join the
British in the war of the revolution. And Allen was
not a man to fail for want of a sufficient degree of
assurance. These observations apply to all the de-
clarations and transactions related in the extract;
and, on the ground that it was all a game of dissem-
bling to deceive the British, never was a more natu-
ral, artful and politic course pursued. But they met
with the greatest difficulty in furnishing a satisfactory
excuse to the British for their delay in bringing the
business to a final conclusion. And this was indispen-
sable ; for the moment they were brought to this point,
there must have been an end of the armistice. And
the only excuse for delay which presented itself, was,
that the people of Vermont were not prepared ; that
LIFE OF NATHANIEL CHIPMAN. 59
time was required to bring them over to their views.
A great length of time must have been required for
this, for nothing can be more clear, than that the
leading men in Vermont never made a single effort,
even to abate the ardor of the people in the cause of
their country. Nothing of the kind was suspected at
the time ; no writer since, has noticed the subject at
all, nor has Mr. Stone himself even stated anything
of the kind. On the contrary, it appears by his note
at the close of the extract, that he considered that the
body of the people of Vermont remained uncorrupt-
ed and steadfast in the cause of their country to the
last. We have seen how sensitive the people were
on the subject of a negotiation with the governor of
Canada, and this as late as October, 1781. Certain
it is, then, that if any efforts had been made to abate
their ardor in the cause of their country, they had
been singularly unsuccessful. But all who knew Gov-
ernor Chittenden, knew that he never could have
made an effort of the kind. True, he had a com-
manding influence with the people, but he had ac-
quired that influence by his zeal in the cause of his
country, and his unremitted exertions to establish the
independence of the United States. And all have
admitted that he was a man of great sagacity, and
distinguished for his profound knowledge of human
nature. And surely he had some knowledge of his
own Green Mountain Boys. He knew well of what
stuff they were made. Could he then ever have
thought of making tories out of such materials ? No.
He never thought of making an effort of the kind.
And it is believed, that in the year 1781, there was
60 LIFE OF NATHANIEL CHIPMAN.
scarcely a tory within the limits of Vermont. What
tories there were in this territory at the commence-
ment of the war of independence, separated them-
selves from the whigs in the year 1777, and joined
the enemy, when they were in possession of a part of
this state. I have dwelt longer on this part of the
subject, because the reader will perceive that if I am
correct in this, that the leading men of Vermont never
made any effort to induce the people to abandon the
cause of their country and join the British — the ques-
tion which we have been discussing is conclusively
and finally settled. For these leading men well knew
that if, by their secret negotiations, they made Ver-
mont a British province, without the concurrence of
the people, they would negotiate themselves into per-
petual exile — if fortunate enough to escape a more
summary punishment.
Before coming to a conclusion, I cannot but state
one fact which strikingly marks the character of our
fathers.
It appears very clearly, that through the whole of
their negotiation with the British, they made not a
single profession of loyalty to the British crown, or of
attachment to the British government, or uttered an
expression of dislike to our free institutions. Such
was the strength of their moral principles, and so
fixed their habit of adhering to the truth, that they
could not at once learn how to utter a palpable false-
hood. On a full and impartial view of the whole
subject, it appears that the reader will arrive at the
following conclusions: That the British authorities
in Canada proposed to the leading men in Vermont
LIFE OF NATHANIEL CH1PMAN. 61
a cessation of hostilities between the British forces
and the people of Vermont, with a view to a negotia-
tion by which Vermont should be detached from the
United States, and become a British province. The
leading men in Vermont being thus invited by the
British to desert their country and join their enemies,
felt themselves at liberty to accept of the proposals
of the British for an armistice, and by means of de-
ception to continue it so long as they should find it
advantageous ; that they played their game so adroitly,
and deceived the British so completely, that they were
enabled to continue the armistice by which our fron-
tiers were secured against the assaults of the enemy,
until the close of the war, to the great advantage of
the United States as well as this state. Thus, the
British, undertaking to tamper with the patriotic sons
of the Green Mountains, found their match, and were
so completely duped and deceived, that their enemies
alone were benefited by the armistice. The actors
on the part of Vermont will ever be admired and ap-
plauded for their wisdom and patriotism. And the
character of Thomas Chittenden, Nathaniel Chip-
man and their compatriots, will pass down through
succeeding ages, to the last generations of men, as
fair and untarnished as they were during their lives,
and, as I trust, they appeared when called to give
an account to that Being who had been graciously
pleased to crown with complete success all their no-
ble and patriotic exertions in the cause of their coun-
try — the cause of liberty and the rights of man. 1
1 The reader will find some further evidence upon the suhject discussed
in this chapter, in a letter from Governor Chittenden to General Wash-
ington, in the Appendix, No. VII.
CHAPTER III.
Occasion and beneficial Operation of the Quieting Act — Mr. Cliipman
unsuccessful in his Farming and other business — Resolution of the
Legislature, by which certain Measures proposed for the Relief of the
People calculated only to increase and prolong their Sufferings, were
postponed and defeated — Elected Assistant Judge of the Supreme
Court.
When the government was organized in this state,
and justice began to be administered, it was soon
found that a great portion of the settlers had pur-
chased defective titles. A long time had elapsed be-
tween the granting of the lands by New Hampshire
and the organization of government in this state,
during the whole of which time there was no office in
which deeds could be recorded ; and there was no
place to which the purchaser could resort to ascer-
tain in whom was the legal title to the lands, which
he proposed to purchase. And in New England, pur-
chasers were not accustomed to receive the title
deeds, so as to have in their hands evidence of the
title. Consequently it was soon found, that a man so
disposed, could sell lands as well without the expense
of a purchase as with. A number of swindlers took
advantage of this state of things, and made a business
of selling lands without making a single purchase.
Simeon Scars was one of these primitive swindlers.
LIFE OF NATHANIEL CHIPMAN. 63
The following anecdote will show how notorious this
mode of swindling had become. The City Hall in
Albany was but thirty miles from Bennington, and
some of the people of Bennington had been confined
in it by the authorities of New York. The City Hall,
of course, became a hated place, and an object of
dread to the Green Mountain Boys, the more so after
the act of outlawry against Allen and others. It there-
fore became a subject of conversation at all their
meetings. At length they began to devise ways and
means for destroying it. And at one of the meetings
a number of modes of effecting this were proposed,
and among the rest several modes of blowing it up.
" No," said Ethan Allen, wishing to direct their atten-
tion from that dreaded object, " the better way will
be to employ Sim Sears to sell the d — d thing."
A great portion of the people being thus exposed
to eviction by those who had the legal title, it could
not be supposed that they would support a govern-
ment, by the operation of which they were to lose
their farms, rendered more dear to them by their long
and doubtful struggle with New York in their defence,
and by the hardships and privations which they had
suffered in bringing them into a state of cultivation ;
and it was absolutely necessary that some relief should
be provided for them. Governor Chittenden very
early discovered this, and he was precisely the man
to devise the best mode of relief. He had a strong
sense of equity, and deeply sympathized with the un-
fortunate settlers. And what peculiarly fitted him for
this occasion was, that he knew nothing of the tech-
nical niceties of the law. He therefore found nothing
IT 1
G4 i 11 t. or n mii wir.i. < iiii*m vn.
in the way, nothing to prevent him from pursuing
that course which was dictated by the principles of
natural justice. And as the settlers had made im-
provements on their farms at great expense, thereby
greatly enhancing the value, he could not endure the
gross injustice of permitting the legal owner, who had
stood aloof, to recover the land with the value thus
enhanced by the hard labor of the settlers. He there-
fore proposed a law, giving to the settlers, in case of
eviction, the full value of his improvements and half
the rise of the land. A bill to this effect had been
introduced several sessions before, but being opposed
by almost all the lawyers in the state, it was post-
poned to the October session of the legislature at
Rutland, in 1784. The law, they said, makes every
man a trespasser who enters on the land of another
without license, and subjects him to damages for the
trespass ; instead of this, you would compel the legal
owner to pay him a bounty for his trespass. The bill
was taken up again at this session, when Nathaniel
Chipman was a member. But although there was a
majority in favor of the principles of the bill, giving
to the settler a remedy for his " betterments " against
the legal owner, on a recovery in ejectment, yet they
were not able to agree on the details of the bill. No
wonder ; for it was a new case. They could avail
themselves of no precedent ; they could resort to no
form. Not being able to pass the bill at this session,
and feeling a pressing necessity of passing it as soon
as possible, the legislature had an adjourned session
at Norwich, in June, ITT)"), that they might have
time to mature and pass the bill, afterwards called the
LIFE OF NATHANIEL CHIPMAN. 65
quieting act. The bill was taken up at the adjourned
session and referred to a committee, of which Nathan-
iel Chipman was a member. When the bill came
into his hands, he revised it in such a manner, that
it passed the house by a decided majority. His strong
sense of justice, and his comprehensive and discrimi-
nating mind, enabled him as a legislator to adopt the
law to any new state of things with the same ease
with which, in the administration of justice, he applied
the settled principles of law to new cases when they
occurred, in such manner as to do perfect justice
between the parties. Thus a law was passed by the
legislature of Vermont, perfectly novel in its char-
acter, yet so clearly founded on the principles of
natural justice, that it has always been in great favor
with the people of this state, and several of our sister
states availing themselves of our invention and our
experience, have adopted the same system.
In the year 1782, his father conveyed to him his
farm under a contract that he should support his
father and stepmother during their lives, and educate
his three younger brothers, which contract he fulfilled
to the entire satisfaction of all concerned. But it
proved to be an unfortunate contract for him. In-
stead of making his farm profitable, his lucrative
practice was charged as well with the support of his
farm as with the support of his family. He culti-
vated his farm with judgment, and never lost any-
thing by visionary experiments ; but his losses were
occasioned by his absence from home a great part of
the year, and by a want of that minute attention to
the details of the business, which is indispensable to
66 LIFE OF N \IH LNIEL CHIP MAN.
render farming profitable. For the profits will ever
be made of little savings of time and expense, and
without such economy a loss is almost certain. And
it may be doubted whether any one, whose mind is so
engrossed in the acquisition of knowledge, can ever
pay that minute attention to little things which is
indispensable to render farming profitable. In the
year 1785 or 1786, he erected a forge, and procured
a store of goods to aid in carrying it on, and soon
became deeply involved. His brother, Darius Chip-
man, who was in the practice of law at Rutland, then
exchanged situations with him, removed to Tin-
mouth, and in a few years paid the debts. They
again changed situations, and Nathaniel again occu-
pied the old farm in Tinmouth. He again sustained
a loss by farming, and sold his farm. During the
remainder of his life, he depended on his pension for
a support. When he published his work on Govern-
ment, he was compelled to ask assistance from his
relatives.
In the year 1786, the embarrassments and suffer-
ings of the people, which have been adverted to, had
increased and their passions had become more and
more inflamed, until open resistance to the execution
of the laws was apprehended. And when the legisla-
ture convened at Rutland in October, it appeared that
the passions, prejudices and turbulence of the people
were fully represented in the numerous house of repre-
sentatives. Unfortunately, the constitution had pro-
vided no check upon that house, and, as was foreseen,
it proved a stormy session. They passed, what was
afterwards called, a specific tender act, obliging the
LIFE OF NATHANIEL CHIPMAN. 67
creditor to receive on execution, at their appraised
value, such articles of personal property as the debtor
had contracted to pay. But this was not satisfac-
tory to those who were as destitute of such articles
of property as they were of money. Some were
clamorous for a general tender act, obliging the cred-
itor to receive on execution any articles of personal
property which should be tendered by the debtor.
Others strenuously insisted on a bank of paper mo-
ney, and there was great reason to fear that one or
both these measures would be adopted by the legis-
lature. Nathaniel Chipman, who was in Rutland at
the time, and who had witnessed the temper of the
legislature, became alarmed, being fully satisfied that
the measures proposed, if adopted, must greatly in-
crease and prolong the sufferings of the people. Be-
ing extremely anxious to devise some means by which
these evils might be averted, he requested the follow-
ing members of the legislature to meet at his room
the next evening to hold a consultation on the sub-
ject, namely, Gideon Olin, of Shaftsbury ; Elijah
Dewey, of Bennington ; Lemuel Chipman, of Paw-
let, and Thomas Johnson, of Newbury. The first
question which occurred, after they came together,
was, Are there any other members of the legislature
who can be trusted, and safely admitted to join in
our deliberations ? Several members were named,
but not one, who in the opinion of those present,
could be safely admitted. They were, therefore, com-
pelled to rely on their own influence to carry such
measures as they should devise. They then took a
view of the whole ground ; the grievances of the
68 LIFE OF NATHANIEL CHIP MAN.
people, both real and imaginary, their inflamed pas-
sions and the turbulent spirit of a great portion of
them, the violence of the legislature, and the de-
structive nature of the measures which were pro-
posed, and the probability of their adoption, unless
they could be postponed. They unanimously agreed
that the popular current was too strong to be resist-
ed ; that should they attempt to do this they would
be swept along with it, and only add to its momen-
tum, and render it more destructive ; and that they
could therefore do nothing to any good purpose, un-
less they could devise some means by which the pro-
posed measures might be postponed until the passions
of the people should have time to cool. Having this
view of the subject, they drew up the resolution 1 and
preamble, as stated in Thompson's Civil History of
Vermont, page 79. The next day the resolution was
introduced, and in support of it it was observed, that
the sufferings of the people had become so severe,
that some relief was absolutely necessary ; and the
great and important question was, what is the best
mode of granting relief? Of this the people them-
selves are the most competent judges — it ought,
therefore, to be submitted to their decision.
Some of the principal supporters of the measures
before the legislature perceived the design of those
1 Resolved, that the people asscmhlc in their respective towns on the
first day of January, 1787, at the usual places of holding- freemen's meet-
ings, and there express, by yea or nay, their approval or disapproval, of
emitting a small bank of paper money, on loan or otherwise, of continu-
ing the existing tender acts, and of B general tender act ; the yeas and
nays on these subjects to be transmitted to the speaker of the assembly,
to be a guide to the legislature at their next session.
LIFE OF NATHANIEL CHIPMAN. 69
who supported the resolution ; that their sole object
was to delay and finally defeat their favorite meas-
ures. But those who supported the resolution, having
the democratic side of the question, prevailed ; the res-
olution passed, and the whole subject was postponed
until the next session. I perceive here this singular
coincidence. The above-named resolution passed on
the 31st day of October, and on the same day a mob
assembled at Windsor to stop the sitting of the county
court.
At this session of the legislature, Nathaniel Chip-
man was elected assistant judge of the supreme court,
the first lawyer elected a judge of that court. At
the end of the year he returned to his practice at
the bar. Situated as he was on the bench, one of
five judges, and he the only lawyer, it is believed that
he did not at that time become very distinguished as
a judge.
CHAPTER IV.
Correspondence between Nathaniel Chipman and Alexander Hamilton —
Settlement of the Controversy with New York.
When in the summer of the year 1788, it became
evident that the constitution of the United States
would be adopted by all the other states, and a na-
tional government established, the attention of the
most intelligent men in the state was called to the
peculiar situation of Vermont. To remain a small
independent state, between the United States and the
British province of Quebec was not to be thought of,
and to join the union, our controversy with New
York remaining unsettled, and to subject our landed
titles to the decision of the federal court, was con-
sidered by many to be extremely hazardous. Nathan-
iel Chipman was always fearful that, if the question
should ever be brought before an impartial tribunal
for decision, the New York title would be adjudged
the better title. He had, therefore, been opposed to
the granting of lands by this state, which had before
been granted by New York. Having this view of
the subject, he felt extremely anxious to devise some
means by which the controversy with New York
might be speedily adjusted. And in the early part of .Ju-
ly, a number of gentlemen, among whom were the late
LIFE OF NATHANIEL CHIPMAN. 71
Judge Morris, then of Tinmouth, and the late Judge
Olin, of Shaftsbury, met at his house in Tinmouth to
hold a consultation on the subject, and they took this
view of it. They said that Hamilton, Schuyler, Har-
rison, Benson and other leading federalists in New
York must be extremely anxious to have Vermont
join the union, not only to add strength to the gov-
ernment, but to increase the weight of the northern and
eastern states. This was, therefore, the most favora-
ble time for settling the controversy with New York,
and it was agreed that Nathaniel Chipman should
write to Hamilton on the subject. As the conven-
tion was then sitting or about to convene at Pough-
keepsie for the adoption of the United States constitu-
tion by New York, of which Hamilton, Schuyler,
Harrison and Benson were members, it was con-
cluded to send the letter by express. The letter was
delivered to Hamilton while attending the conven-
tion, to which he returned an answer by the express.
Every fact relative to the adoption of the federal
constitution by the State of New York must ever
be interesting ; for it was generally believed, at the
time, that if that state should reject the constitution,
the national government would not be established.
I was the bearer of the letter to Mr. Hamilton, and
arrived at Poughkeepsie while the convention which
adopted the constitution was in session. 1 repaired
to Mr. Hamilton's quarters, and delivered the letter.
General Schuyler, Richard Harrison, and Egbert
Benson, were present. When Mr. Hamilton had
read the letter, and communicated the contents to
the others present, they all appeared to feel a deep
72 LIFE OF NATHANIEL CIIIPMAN.
interest in the subject, and made many inquiries rela-
tive to the people of Vermont, particularly whether
they could be induced to make a fair compromise
of the claims of New York. When I was about to
retire, Mr. Hamilton said to me that, at a certain
hour the next morning, he would have an answer
to my brother's letter prepared. I accordingly called
on Mr. Hamilton at the hour named, and received
the answer. Some conversation took place relative
to my journey to New York, and I took liberty to
say to Mr. Hamilton that I should be inquired of in
New York what the prospect was in relation to the
adoption of the constitution, and to ask him what
I should say to them. His manner instantly changed,
appearing to feel an intense anxiety on the subject,
and he answered, " God only knows. Several votes
have been taken in the convention, and it appears
that there are about two to one against us." I was
about to retire, when he added, in a most emphatic
manner, " Tell them that the convention shall never
rise until the constitution is adopted." I went on
to New York, and, within a very few days, intelli-
gence was received that the convention had adopted
the constitution. This intelligence appeared to elec-
trify the whole population, and produced the splendid
celebration of the event which I witnessed ; the
details of it would be here out of place. I was
surprised that so great and so sudden a change in
the convention had taken place, and heard nothing
said of the means by which it had been effected.
On my return to Vermont, my brother was absent,
and I did not see him until my return from college
LIFE OF NATHANIEL CHIPMAN. 73
the next autumn. I then related to him the conver-
sation with Mr. Hamilton, and expressed my surprise
that the convention adopted the constitution's© soon
after that conversation ; upon which he gave me the
following explanation.
Governor George Clinton, who was president of
the convention, and had a commanding influence in
the state, was strenuously opposed to the adoption
of the constitution ; and Dr. Williams, of White
Creek, now Salem, was an attached friend of Gov-
ernor Clinton, and was, with him, opposed to the
adoption of the constitution. Williams had great
influence with nearly all the members of the con-
vention from the northern part of the state. Of
course, they were with him in the opposition. And
thus, by the influence of Clinton and Williams, there
was a decided majority of the convention opposed
to the adoption of the constitution. Still, Hamilton
did not despair of success, but made an effort to
convince Williams that the establishment of the
national government was indispensable to save the
country from anarchy and total ruin ; and he suc-
ceeded. Williams withdrew from the opposition,
and brought with him most of the members from
the northern part of the state. By this, a majority
of the convention were found in favor of the con-
stitution, and it was adopted by the State of New
York.
The following is all the correspondence on this
subject between Nathaniel Chipman and Alexander
Hamilton, which is to be found :
74 LIFE OF NATHANIEL CHIP MAN,
NATHANIEL CHIPMAN TO ALEXANDER HAMILTON.
Tinmouth, July 15, 1788.
Sir — Your character as a federalist, although per-
sonally unknown to you, induces me to address you
on a subject of very great importance to the state of
Vermont, of which I am a citizen, and from which, I
think, may be derived a considerable advantage to
the federal cause. Ten states having adopted the
new federal plan of government, that it will now suc-
ceed is beyond a doubt. What disputes the other
states may occasion, I know not. The people of this
state, I believe, might be induced almost unanimously
to throw themselves into the federal scale, could cer-
tain obstacles be removed. You are not unacquainted
with the situation of a very considerable part of our
landed property. Many grants were formerly made
by the government of New York, of lands within this
territory while under that jurisdiction. On the as-
sumption of government by the people of this state,
the same lands, partly it is said for want of informa-
tion respecting the true situation of these grants, and
partly from an opinion prevailing with some of our
then leaders, that the New York grants within this
territory were of no validity, have been granted to
others under the authority of this state.
It is now generally believed, that, should we be re-
ceived into the union, the New York grants would,
by the federal courts, be preferred to those of Ver-
mont. The legislature of this state have in some in-
stances made a compensation to the grantees under
New York ; and I am persuaded would do the same
LIFE OF NATHANIEL CHIPMAN. 75
for others were it in their power, but they are in pos-
session of no more lands for that purpose. For these
reasons, and I presume for no others, the governor
and several gentlemen deeply interested in these lands
granted by Vermont, have expressed themselves some-
what bitterly against the new federal plan of govern-
ment. Indeed, were we to be admitted into the
union unconditionally, it would produce much confu-
sion. Now, sir, permit me to ask whether you do
not think it probable that the federal legislature, when
formed, might, on our accession to the union, be in-
duced on some terms, to make a compensation to the
New York grantees, out of their western lands, and
whether those grantees might not be induced to ac-
cept such compensation ? Let me further suggest,
whether it might not be favorable for Vermont to
make some of those amendments which have been
proposed by several states, the basis of her admission ?
Could the difficulties I have mentioned be removed,
all interests in opposition would be reconciled ; and
the idea of procuring justice to be done to those whom
we had, perhaps, injured by our too precipitate mea-
sures, and of being connected with a government
which promises to be efficient, permanent and honor-
able, would, I am persuaded, produce the greatest
unanimity on the subject. If you think these matters
worthy the attention of the friends of the confederacy,
be good enough to write by my brother, who will be
the bearer of this. Our legislature will meet in Oc-
tober, when these matters will be taken up seriously.
Several gentlemen of my acquaintance, who arc men
of influence and will be members of the legislature,
7() LIFE OF N VTIIANIF.I. CHIPMAN.
have requested mc to procure all the information in
my power on this subject. Anything which you may
suggest to me in confidence will be sacredly attended
to, of which Mr. Kelley, who writes by the same op-
portunity, will give you the fullest assurance.
I am, with great respect,
Your obedient, humble servant,
Nathaniel Chip man.
Mr. Hamilton.
alexander hamilton to nathaniel chipman.
Poughkecpsie, July 22, 1788.
Sir — Your brother delivered me your letter of tho
15th inst. which I received with pleasure, as the basis
of a correspondence that may be productive of public
good.
The accession of Vermont to the confederacy is
doubtless an object of great importance to the whole ;
and it appears to me that this is the favorable mo-
ment for effecting it upon the best terms for all
concerned. Besides more general reasons, there are
circumstances of the moment which will forward a
proper arrangement. One of the first subjects of
deliberation with the new congress will be the inde-
pendence of Kentucky, for which the southern states
will be anxious. The northern will be glad to find
a counterpoise in Vermont. These mutual interests
and inclinations will facilitate a proper result.
I see nothing that can stand in your way but tho
interfering claims under grants of New York. As
to taxation, the natural operation of the new system
will place you exactly where you might wish to be.
LIFE OF NATHANIEL CHIPMAN. 77
The public debt, as far as it can prudently be pro-
vided for, will be by the western lands, and the ap-
propriation of some general fund. There will be no
distribution of it to particular parts of the community.
The fund will be sought for in indirect taxation ; as,
for a number of years, and except in time of war,
direct taxes will be an impolitic measure. Hence,
as you can have no objection to your proportion
of contribution as consumers, you can fear nothing
for the article of taxation.
I readily conceive, that it will be scarcely practica-
ble for you to come into the union, unless you are
secured from the claims under New York grants.
Upon the whole, therefore, I think it will be expe-
dient for you, as early as possible, to ratify the con-
stitution, upon condition that congress shall provide
for the extinguishment of all existing claims to land
under grants of the State of New York, which may
interfere with claims under the State of Vermont.
You will do well to conform your boundary to
that heretofore marked out by congress, otherwise
insuperable difficulties would be likely to arise with
this state. I should think it altogether unadvisable
to annex any other condition to your ratification.
For there is scarcely any of the amendments pro-
posed that will not have a party opposed to it ; and
there are several that will meet with a very strong
opposition ; and it would therefore be highly inex-
pedient for you to embarrass your main object by
any collateral difficulties. As I write in convention,
I have it not in my power to enlarge.
You will perceive my general ideas on the subject,
if)
78 LIFE OF NATHANIEL CHIP MAN*
I will only add, that it will be wise to lay as little
impediment as possible in the way of your reception
into the union.
I am, with much esteem, sir,
Your obedient, humble servant,
A. Hamilton.
Mr. Chipman.
alexander hamilton to nathaniel ciiil'man.
Sm, — Your favor of the sixth of September has
been duly handed to me, and I receive great pleasure
from the hopes you appear to entertain of a favor-
able turn of affairs in Vermont in regard to the new
government. It is certainly an object of mutual
importance to yourselves and to the union, and well
deserves the best endeavors of every discerning and
good man.
I observe with satisfaction your opinion that Ver-
mont will not make a point of introducing amend-
ments, (I mean as a condition of their accession.)
That ground would be the most hazardous which she
could venture upon, as it is very probable that such
amendments as might be popular, with you, would
be deemed inadmissible by the friends of the system,
who will doubtless be the most influential persons
in the national councils, and who would rather submit
to the inconvenience of your being out of the union
till circumstances should alter, than consent to any-
thing that might impair the energy of the govern-
ment.
The article of taxation is, above all, the most
delicate thing to meddle with, for a plenary power
LIFE OF NATHANIEL CHIPMAN. 79
in that respect must ever be considered as the vital
principle of government; no abridgment or consti-
tutional suspension of that power can ever, upon
mature consideration, be countenanced by the intel-
ligent friends of an effective national government.
You must, as I remarked in my former letter, rely
upon the natural course of things, which, I am satis-
fied, will exempt you, in ordinary times, from direct
taxation, on account of the difficulty of exercising
it in so extensive a country, so peculiarly situated,
with advantage to the revenue, or satisfaction to the
people. Though this difficulty will be gradually
diminished, from various causes, a considerable time
must first elapse ; and, in the interim, you will have
nothing to apprehend on this score.
As far as indirect taxation is concerned, it will be
impossible to exempt you from sharing in the burthen,
nor can it be desired by your citizens. I repeat
these ideas to impress you the more strongly with my
sense of the danger of touching this cord, and of the
impolicy of perplexing the main object with any such
collateral experiments ; while I am glad to perceive
that you do not think that your people will be tena-
cious on the point.
It will be useless for you to have any view in your
act to the present congress ; they can, of course, do
nothing in the matter. All you will have to do will
be to pass an act of accession to the new constitu-
tion, on the conditions upon which you mean to rely.
It will then be for the new government, when met,
to declare whether you can be received on your
terms or not.
80 LIFE OF NATHANIEL CHIPMAN.
I am sorry to find that the affair of the boundary
is likely to create some embarrassment. Men's minds
everywhere out of your state, are made up upon, and
reconciled to that which has been delineated by con-
gress. Any departure from it must beget new dis-
cussions, in which all the passions will have their
usual scope, and may occasion greater impediments
than the real importance of the thing would justify.
If, however, the further claim you state, cannot be
gotten over, with you, I would still wish to see the
experiment made, though with this clog ; because I
have it very much at heart that you should become a
member of the confederacy. It is, however, not to
be inferred that the same disposition will actuate
every body. In this state the pride of certain indi-
viduals has too long triumphed over the public inter-
est, and in several of the southern states a jealousy of
northern influence will prevent any great zeal for
increasing in the national councils the number of
northern voters. I mention these circumstances,
(though I dare say they will have occurred to you,)
to show you the necessity of moderation and cau-
tion on your part, and the error of any sanguine cal-
culation for a disposition to receive you at any rate.
A supposition of this nature might lead to fatal mis-
takes. In the event of an extension of your boun-
dary by another congressional will, would it be im-
practicable for you to have commissioners appointed
to adjust any difference which might arise ? I pre-
sume the principal object with you in the extension of
your boundary, would be to cover sonic private inter-
ests. This might be matter of negotiation. There is
LIFE OF NATHANIEL CHIPMAN. <jl
one thing which I think it proper to mention to you,
about which I have some doubts, that is, whether a
legislative accession would be deemed valid. It is
the policy of the system to lay its foundation on the
immediate consent of the people. You will best
judge how far it is safe or practicable to have re-
course to a convention. Whatever you do, no time
ought to be lost. The present moment is undoubt-
edly critically favorable. Let it by all means be im-
proved. I remain, with esteem, sir,
Your obedient and humble servant,
A. Hamilton.
The author of the Life of Hamilton states that there
is no date to my brother's letters ; indeed, from the ra-
pidity with which he wrote, and the pressure of his
engagements, this omission is not an infrequent oc-
currence.
The foregoing correspondence prepared the way
for a settlement of the controversy with New York.
In the winter following, Mr. Hamilton and Mr. Chip-
man had an interview at Albany, when they took a
view of the subject somewhat different from their
views, which appear in the foregoing correspond-
ence, and agreed on a mode of settling the contro-
versy, which was afterwards adopted by the two
states. The legislature of New York, on the loth
day of July, 1789, passed an act appointing Robert
Yates, John Lansing, Gulian Verplanck, Simeon De
Witt, Egbert Benson and Melancthon Smith, com-
missioners, with full powers to acknowledge the sove-
reignty of Vermont, and to adjust all matters of con-
oJ. LIFE OF NATHANIEL CHIFMAN.
troversy between the two states. And on the 23d of
October following, the legislature of Vermont passed
an act, appointing Isaac Tickenor, Stephen R. Brad-
ley, Nathaniel Chipman, Elijah Paine, Ira Allen, Ste-
phen Jacob and Israel Smith, commissioners, on the
part of Vermont, to treat with those of New York, and
to remove all obstructions to the admission of Vermont
into the federal union. The commissioners of the
two states met and adjusted all matters of controversy
between them ; and on the 7th day of October, 1790,
the commissioners, on the part of New York, de-
clared the consent of the legislature of that state
that the State of Vermont be admitted into the union
of the United States of America. And that imme-
diately on such admission, all claims of jurisdiction
by the State of New York, within the State of Ver-
mont shall cease, &c. It was further agreed and de-
clared, that if the legislature of the State of Ver-
mont should, on or before the 1st day of January,
1792, declare that on or before the 1st day of June,
1794, the State of Vermont would pay to the State of
New York the sum of thirty thousand dollars, imme-
diately from such declaration by the legislature of
Vermont, all rights and titles to lands within the State
of Vermont, under grants from the government of the
Colony of New York, or from the State of New York
should cease, those excepted which were made in
confirmation of the New Hampshire grants. The
Legislature of the State of Vermont raised the sum of
thirty thousand dollars, by a general land tax, and
paid it to the State of New York within the time lim-
ited for the payment.
CHAPTER V.
Convention called, by which Vermont acceded to the Union — Speech of
Nathaniel Chipman in the Convention — Admission of Vermont to the
Union.
The controversy with New York having been thus
adjusted, the legislature of Vermont called a conven-
tion to decide the question, whether Vermont should
accede to the union. This convention met at Ben-
nington on the 6th day of January, 1791 ; Nathaniel
Chipman was a member of the convention, and de-
livered the following speech, urging the accession of
Vermont to the union.
Mr. President, — The subject on which we are
now called to deliberate is a subject of great mo-
ment, and is attended with many weighty considera-
tions. I shall waive at present the particular circum-
stances in which we may be supposed to stand with
the United States, on account of the claims of New
York, and the late compromise between Vermont
and that state. I shall first make a few observations
on our local and relative situation as a state, and the
probable consequences that would attend the event
either of our continuing independent, or of our ac-
ceding to the Union. I will then briefly remark on
the principles and tendency of the federal constitu-
tion.
84 LIFE OF NATHANIEL CHIPMAN.
In viewing our situation, the first thing that strikes
the mind is the limited extent of our territory, inade-
quate to support the dignity or defend the rights of
an independent sovereignty, and the fortune that
usually attends such petty sovereignties.
The division of an extensive country into small
independent sovereignties greatly retards civil im-
provement. This was formerly the case in Europe ;
and the consequence was, a long continuance in
savage, and almost brutal manners. It has been
found that, where, through an extensive territory, the
smaller sovereignties have united under one general
government, civilization has proceeded more rapidly,
and the kindly affections have much sooner gained
the ascendency, than where the country still con-
tinued under numerous neighboring governments.
The reason why the one state is more favorable to
civilization than the other, is founded in the consti-
tution of human nature. Among small, independent
states, as among independent individuals, without a
common judge, the weak will be jealous of the
strong, and will endeavor, by art and cunning, to
supply the want of power. The strong will be ready
to decide everything by force, according to their
present interest. Hence follow a total want of
national faith, recriminations, animosities, and open
violence, under the idea of reprisals ; and foreigm r
becomes but another name for an enemy. In this
situation, the minds of men are kept in a constant
state of irritation. Their turbulent spirits ill brook
the restraint of laws. The passion of revenue,
which, in proportion to the weakness of the govern-
LIFE OF NATHANIEL CHIPMAN. 85
ment, becomes necessary for the protection of the
individual, is soon inflamed to a degree of enthu-
siasm. Common danger alone, and that imminently
impending, can suspend its baneful operation among
the members of the same society ; — a situation fit
only for savages, and in this situation savages have
ever existed. But, in an extensive government,
national prejudices are, in a great measure, sup-
pressed. Hostilities are removed to a distance ; pri-
vate injuries are redressed by a common judge. The
passion of revenge, no longer necessary for the pro-
tection of the individual, is suspended. The people
no longer behold an enemy in the inhabitants of each
neighboring district. They find all members of one
great family, connected by all the ties of interest, of
country, affinity, and blood. Thus are the social
feelings gratified, and the kindly affections expanded
and invigorated.
Vermont, continuing independent, would not be
liable to all the evils which I have enumerated, in
their full extent; but, as a small state, she will be
liable to many and great inconveniences. In the
vicinity, and almost encircled by the United States,
now become great and powerful by means of an
energetic system of government, our intercourse will
be on very unequal, and frequently on very mortify-
ing terms. Whenever our interests clash — and
clash they will, at some times — with the interests
of the union, it requires very little political sagacity
to foresee that every sacrifice must be made on our
part. When was it ever known that a great and
powerful nation sacrificed, or even compromised her
11
36 LIFE OF NATHANIEL CHIPMAN.
interest, in justice to a weak neighbor, who was un-
able to make an effectual demand ? Nay, such is
the nature of mankind, were they disposed to judge
candidly in such circumstances, they are in a great
measure incapable ; and who shall be a common
judge ? We have formerly experienced the disposi-
tion of neighboring powers, whose interests were
adverse to our own, and well know the conse-
quences; — extravagant, as we deemed them, and
unjustifiable claims, on their part; animosities, fac-
tions, and even bloodshed, among ourselves.
Our vicinity to an extensive province of the British
empire is a circumstance worthy of consideration.
There is not an immediate prospect of war between
the United States of America and Great Britain ;
yet, from their mutual recriminations in respect to
the observance of the late treaty, and the retention
of the frontier posts in the hands of the British,
contrary to express stipulation, such an event, at
some future day, is not improbable. Should that
happen, Vermont would be in a situation much to
be regretted. Our local situation with the United
States, our present connection with many of their
inhabitants, connected by all the ties of blood and
kindred affection, would forbid an alliance with Great
Britain. As allies of the United States, we should
experience from the British all the resentment of an
enemy whom, by our alliance, we had voluntarily
made such, and to whose ravages, from our frontier
situation, we must be continually exposed. And
should we find in the United States that quick sense
of the injuries we should suffer? Will they fly to
LIFE OF NATHANIEL CHIPMAN. 87
our defence with the same alacrity, with the same
national spirit, as they would defend themselves when
attacked in one of their own members ? Will they
equally attend to our interest as to their own in the
settlement of a peace, or in adjusting the expendi-
tures of the war? The supposition is highly chi-
merical ; nor less so the idea that, by observing a
neutral conduct, we may enjoy all the blessings of
peace, while the flames of war rage on every side.
Our little country would become a rendezvous and
thoroughfare for the spies of both nations. Our
citizens would, by both parties, in many instances,
be drawn into an infamous correspondence of that
kind. Every act of friendship, or even of common
courtesy, done to one party, would excite the jealousy
of the other. Their armies, to whom we should not
be in a condition to deny a passage, would, on every
the least pretext of necessity, think themselves justi-
fied in seizing our property for their support. In a
word, we should be equally used, equally distressed,
insulted, and plundered by both.
Again, we may take another view of the subject,
as it relates to the promotion of learning and liberal
science. Confined to the narrow bounds of Vermont,
genius, for want of great occasions and great objects
to expand the powers of the mind, will languish in
obscurity. The spirit of learning, from which states
and kingdoms derive more solid glory than from all
heroic achievements, and by which individuals, raised
above the common lot of humanity, are enabled to
contribute to the happiness of millions in distant
parts of the globe, will be contracted, and busy itself
88 LIFE OF NATHANIEL CHIPMAN.
only in small scenes, commensurate with the exigen-
cies of the state, and the narrow limits of our govern-
ment. In proportion as the views are more confined,
more limited, and more local, the more is the mind
contracted by local prejudices. But, received into
the bosom of the union, we become brethren and
fellow-citizens with more than three millions of peo-
ple. Instead of being confined to the narrow limits
of Vermont, we become citizens of an extensive
empire. Here is a scene opened that will expand
the social feelings ; the necessity and facility of mu-
tual intercourse will tend to eradicate local preju-
dices ; the channels of information will become wide
and far extended ; the spirit of learning will be called
forth by every motive of interest and laudable am-
bition, and exalted by the magnitude of the objects
presented. Genius will soar to the heights of science.
In a word, independent, we might ever continue
little, and, I had almost said, contemptible ; united,
we become great by the reflected greatness of the
empire with which we unite ; our general interests
will be the same as those of the union ; and, repre-
sented in the national councils, our local interests
will have their due weight. From the encourage-
ment given to arts and manufactures, as an inland
country, we shall reap more than a proportional ad-
vantage ; and, in case of a war, an attack upon us
will be felt through every member of the union.
National safety, national pride, and national resent-
ment, — not the petulance of a tribe, but great as
the nation offended, — will all conspire in our de-
fence.
LIFE OF NATHANIEL CHIPMAN. 89
These observations relate only to the expediency
of joining the union in our present situation, and
to the removal of such objections as may arise to
the measure, antecedent to a discussion of the con-
stitution under consideration. I shall not now enter
into a minute examination of the federal constitution,
but only observe upon some of its leading features,
the principal end in view in its formation, and how
far it is calculated to attain that end.
The great end in view, and which has heretofore
been the grand desideratum in federal polities, is to
bring all the states of the confederacy to act in
concert, in those measures which have an imme-
diate relation to the good of the whole. There are
three principal methods by which this has been at-
tempted :
1. The first, because the most ancient, is by a
council, empowered to legislate upon the several
states composing the confederacy. Of this kind
were the council of the Amphictyons, at the head
of the confederated states of ancient Greece. In
this case, as none but states can refuse to obey, a
delinquent can be nothing less than a whole state,
already provided with arms and councils for a for-
midable opposition. To enforce the decrees of the
council, which we may call the laws of the union,
it is necessary to draw out the forces of the comply-
ing states, and to compel obedience by dint of arms.
The history of ancient Greece, for many years, is
infamous for a succession of such wars. Such was
the famous Peloponnesian war, which raged with
almost unabated fury near thirty years. Such ever
90 LIFE OF NATHANIEL CHIPMAN.
has been, and such ever will be, the effect of this
kind of government, — if it may be called a govern-
ment, — unless, like the late congress of the United
Stales of Vmerica, they suffer their laws and ordi-
nances to be violated with impunity. And, in this
case, the consequence will be the same ; the govern-
ment will soon reach the lowest point of degradation,
and crumble on the brink of evanescence.
2. The second mode is by a council empowered only
to propose measures to the confederated states, sub-
ject to the ratification of the states severally before
they can have the force of laws. The United Neth-
erlands furnish us with an instance of this second
form. The states-general are the grand council of
the confederacy. This council, although pompously
styled their High-Mightinesses, have, in matters of
national concern, only a power to propose. The
several states have reserved to themselves the right of
ratification. No law can be constitutionally binding
until it has received the ratification of each indi-
vidual state. The veto of a single state, in some
instances little superior in point of territory to the
town of Bennington, may disconcert, and actually has
disconcerted the wisest measures. Frequently, on
great emergencies, such is the delay, before all the
states can be brought to agree, that the opportunity
of acting is forever lost. This has induced the states-
general, aided by the stadtholdcr, the hereditary Prince
of Orange, who administers the republic, and whose
power and influence are very great, frequently to act
without, and even contrary to the authority of the
smaller states. Such a disregard of the constitu-
LIFE OF NATHANIEL CHIPMAN. 91
tional principles of their union, has, even among that
plodding, phlegmatic people, produced violent con-
cussions, and some within our own memory.
3. The third form is by a council, or federal legis-
lature, empowered in all instances that concern the
confederacy at large, to legislate on the citizens of
the several states, and to carry their laws into execu-
tion by their own officers. Of this third form we
have an instance in the present constitution of the
United States of America. In this case the national
legislature, in all matters that concern the general
interests of the confederacy empowered, and limited
by the constitution, legislate, not upon the states col-
lectively, but upon the citizens of the union. No
ratification is necessary further than their own act.
The constitution, and all authoritative acts under the
constitution, are the supreme law of the land. To
prevent different constructions that might arise from
different opinions in several independent tribunals,
under the influence of local interest or prejudice, the
judiciary, for all cases arising under the constitution
and laws of the union hold their offices by appoint-
ment of the supreme power of the confederacy, and
are amenable only to that power, and their decisions
are carried into effect by ministerial officers, appoint-
ed by the same authority. While the national legis-
lature are vested with supreme power in all matters
that relate to the general welfare of the union ; the
states legislatures, within their several jurisdictions,
retain as sovereign all those powers, the due adminis-
tration of which, most endears government to man-
kind. To them it belongs, among their own citizens,
92 LIFE OF NATHANIEL CHIPMAN.
to regulate the mode, and to secure the acquisition of
property ; to redress injuries ; to animadvert upon
morals ; and to restrain and punish those crimes,
which attack private property, violate personal secu-
rity, and disturb the peace of society.
The senators of the United States, appointed by
the several state legislatures, and from time to time
amenable to them, may be considered as guardians of
the rights of their respective states against all en-
croachments of the national government. The rep-
resentatives in congress, elected by the people, and
dependent on them through the means of biennial
elections, are bound by all the ties of interest and
affection, to watch over the rights of individuals and
the rights of their several states, with which their
electors are more immediately connected. The pow-
er of appointing electors for the choice of the presi-
dent and vice president, gives the states legislatures a
sufficient check on the executive of the federal gov-
ernment. It is true, this form of federal government
is almost a phenomenon in the political world. Hard-
ly a shadow of such powers, as relative to their execu-
tion, is to be found in the history of ancient or mod-
ern politics. Its novelty, however, in this age of
improvement, no less in the science of politics than
in other sciences, can hardly be made a serious ob-
jection ; still it is acknowledged, that however beauti-
ful in theory, or as delineated on paper, its efficiency
in point of practice might still be considered as prob-
lematical, had we not seen it evinced by actual ex-
periment The "idea alone of the efficiency of the
federal government, at the instant of its organization,
LIFE OF NATHANIEL CHIPMAN. 93
added strength to the states governments, and put
an end to those turbulent commotions, which made
some of them tremble for their political existence ;
nor has this state reaped an inconsiderable advantage
from the suppression of that contagious spirit of fac-
tion which existed in some of the neighboring states.
Two years have not yet elapsed since the commence-
ment of this administration. They have already pro-
vided for funding the national debt ; they have in a
great measure restored public credit, which, from
the weakness of the former government, they found
almost in a state of desperation. They have enriched
the nation with a very productive revenue. The wis-
dom, justice, and equality of their laws and regula-
tions are fully evinced by a prompt and almost uni-
versal observance. In very {ew instances have their
courts been called to animadvert upon a violation of
their laws. It may be said that this arises from the
confidence of the people in the present members of
the government. That undoubtedly has its influence.
But a people free, jealous and discerning, as the
Americans are, do not suffer measures to pass unex-
amined. They never long give to any men, or set
of men, an unmerited confidence. It is probable
that the national council will long and deservedly re-
tain the confidence of the people. The people, when
called to choose rulers and legislators for an exten-
sive empire, of which themselves are a constituent
part, experience a dilation of mind ; they rise above
vulgar and local prejudices, and confer their suffrages
on men whose abilities and integrity are equal to the
task of empire.
12
94 LIFE OF NATHANIEL CHIPMAN.
One important consideration ought not to be omit-
ted. The present constitution is still subject to
amendments. Whatever shall be found dangerous,
or impracticable, may be retrenched or corrected.
That wisdom which formed it, aided and matured
by experience, may carry it to a greater degree of
perfection than anything that has yet been known
in government.
I have, sir, in the course of these observations,
hinted at the disadvantages that will accrue to us,
continuing independent. I have touched upon some
of the advantages of an accession to the union.
I have pointed out the leading principles of the
constitution, and its probable and actual efficiency
in strengthening the government of the several states,
and in securing the tranquillity, happiness, and pros-
perity of the union. The more minute investigation
of the subject I leave to others. At the same time,
I rest fully persuaded, that, when accurately exam-
ined with that candor and impartiality which will
doubtless mark the proceedings of this convention,
every material objection to the constitution, or to the
accession of the State of Vermont to the union,
will be easily obviated or totally disappear.
After a session of four days, the convention re-
solved, yeas 105, nays 2, that application be made to
congress for the admission of Vermont into the fed-
eral union. And, on the loth day of January,
1791, the legislature, in order to carry into effect
the foregoing resolution, appointed Nathaniel Chip-
man and Lewis R. Morris to attend congress, and
LIFE OF NATHANIEL CHIPMAN. 95
negotiate for the admission of* Vermont into the
federal union. And, on the 4th day of March,
1791, Vermont became one of the United States
of America.
CHAPTER VI.
Elected Chief Justice — Confirmation Charter under New York — Why
they were not taken by the Settlers on the west Side of the Mountain
— The Law in relation to those Charters settled by Judge Chipman —
Appointed District Judge — Letters to General Schuyler and Governor
Robinson — Sketches of the " Principles of Government" — Reports
and Essays — Resigned bis Office of District Judge — Appointed one
of a Committee to revise the Statutes — Elected Chief Justice — His
Character as a Politician.
Nathaniel Chipman had, in October, 1789, been
elected Chief Justice of the Supreme Court of the
State, and continued in that office until October,
1791, when he was appointed Judge of the Court
of the United States for the District of Vermont.
In the administration of justice in this state, pre-
vious to the year 1791, the judges were greatly per-
plexed with the confirmation charters under New
York. To elucidate this subject, and make it clearly
understood by the reader, it is necessary to advert
to the times when these confirmation charters were
issued. And the reader will not be displeased, if, in
order to fill a chasm in our early history, I go farther
than shall appear consistent with the leading design
of this work.
During the contest between the Governor of New
1 lamp-hire and the Governor of New York for the
LIFE OF NATHANIEL CHIPMAN. 97
jurisdiction of the territory now forming the State of
Vermont, each claimed the right of granting the lands,
and each treated the grants of the other as void.
The Governor of New Hampshire first granted a
great number of townships, and almost all the settle-
ments made before the revolutionary war, on both
sides of the mountain, were made under the New
Hampshire title. The Governor of New York grant-
ed a portion of the same lands in the counties of
Bennington and Rutland, which had been previously
granted by the Governor of New Hampshire, and
settled under that title. The New York grantees
commenced actions of ejectment against some of
the settlers, and recovered judgments against them
before the courts in Albany. The settlers made a
successful resistance, defending their possessions by
force. And, in October, 1772, a convention was
holden at Manchester, by which it was decreed that
no person should take a confirmation charter under
New York. In the mean time, the settlers on the
east side of the mountain, generally, surrendered
their New Hampshire charters to the Governor of
New York, took confirmation charters, and lived
quietly under the laws of New York ; — two counties
having been organized on Connecticut River by that
government, — Cumberland at the south, and Glou-
cester at the north. The inhabitants of these coun-
ties, who had thus submitted to New York, were,
by the inhabitants of Bennington county, considered
as apostates, as base deserters of the common cause.
And, when any sheriff or other officer under New
York had occasion to pass from the county of Cum-
98 LIFE OF NATHANIEL CHIPMAN.
bcrland or Gloucester, through Bennington county, to
Albany, they were obliged to travel in such manner
as to escape observation ; sometimes secreting them-
selves in the woods by day, and travelling by night.
Now, what was the cause of this very extraordinary
state of things ? Why did the settlers in Bennington
county, so near Albany City Hall, resist the power
of New York, and successfully defend their posses-
sions under their New Hampshire charters, while the
settlers on Connecticut River, having the Green
Mountains between them and Albany, submitted to
the government of New York, surrendered their New
Hampshire charters, and took confirmation grants
from the governor of that colony ? If the reverse
of this had taken place — if the settlers in Benning-
ton county had submitted to New York, had surren-
dered their New Hampshire charters, and taken con-
firmation charters, and those on Connecticut River
had made a successful resistance, — a bare statement
of the fact would have furnished a satisfactory ex-
planation. But, as the facts are, they require an
explanation, which can be given, but not in as few
words as I could wish.
The sum demanded by the Governor of New
York, for a confirmation charter of a township, was
seventy pounds, New York currency. At that time,
specie was the only circulating medium, and that
extremely scarce. During the previous French wars,
and several years after, the New England colonies
had issued bills of credit, or, in the language of that
period, banks of paper money ; and, as there was
no fund provided for their redemption of the bills,
LIFE OF NATHANIEL CHIPMAN. 99
they became depreciated, and, of course, drove most
of the specie out of the country. This paper money
was called in, and withdrawn from circulation, a few
years before the commencement of the revolutionary
war, leaving the country nearly destitute of a circu-
lating medium ; by reason of which, the value of
money was increased, and the prices of all species
of property greatly depressed, — so much so, that,
on the first of May, 1775, the average price of cows,
passing at the appraisal of men, was forty shillings.
This fact will enable any one to ascertain what has
been the depreciation of money since that period.
Yet, valuable and scarce as money then was, each
individual proprietor could raise his proportion of the
seventy pounds, New York currency, to obtain a
confirmation charter, — it being little more than two
dollars and fifty cents, — or to secure the title to a
farm containing one hundred acres, less than one
dollar. Although some individuals on the east side
of the mountain had purchased a number of rights,
yet no individual or company of individuals had
purchased a number of townships. The proprietors
were therefore able, in every case, to raise money
to pay for a confirmation charter ; and no one will
deny that they were wise in doing so. To have re-
fused the payment of a sum so trifling, compared
with the value of the land, to secure an unquestion-
able title, would have been quite inexcusable. But
why were not the settlers on the west side of the
mountain equally wise ? why did they spend vastly
greater sums in defending themselves against the
New York claimants, and put at hazard their entire
100 LIFE OF NATHANIEL CHIPMAN.
property ? The answer is, it was wholly out of the
power of the leading men to raise a sufficient sum
of money to obtain confirmation grants of their
lands.
The Onion River Company, formed some years
before the commencement of the revolutionary war,
for the purchasing of lands in the Onion River
country, — as the north-western part of the New
Hampshire Grants was then called, — consisted of
Ethan Allen, Heman Allen, Levi Allen, Zimri Allen,
Ira Allen, and Remember Baker. They had pur-
chased lands in the New Hampshire Grants to the
amount of about four townships ; and this, it was
understood at the time, had exhausted their funds.
Ethan Allen was never possessed of much property.
His views were elevated quite above the paltry busi-
ness of acquiring it. Heman Allen commenced
business as a country merchant, a few years before
the revolutionary war, but never acquired much
property. Levi Allen was a prodigal, and never
possessed any property. Zimri and Ira Allen were
young, and had never engaged in any business.
Remember Baker was a mill-wright, — an energetic,
enterprising man, — but could at no time have raised
any considerable sum of money. It must therefore
have been quite impossible for the Onion River
Company to raise a sufficient sum of money to ob-
tain confirmation charters of their lands. There
was then no alternative but to rely on their New
I [ampshire title ; and, should that fail, to defend their
possessions by force ; and they were heartily joined
in this course by the whole body of the inhabitants
LIFE OF NATHANIEL CHIPMAN. 101
of Bennington. A great portion of them had pur-
chased their lands of Samuel Robinson, the first
settler of the town. And, as Robinson was their
voucher, it belonged to him to raise money to obtain
a confirmation of their title ; and the large amount
of the sum required must, with Robinson, have had
all the weight of a most conclusive argument in favor
of the New Hampshire title.
Having thus taken their stand in opposition to
New York, the leaders soon infused into the great
body of the settlers their own spirit, which at once
raised them above all paltry calculations of pounds,
shillings and pence, and enabled them to achieve the
independence of the state. The state having been
thus organized by those who had been long combined
in opposition to the New York title, on the ground
that it was void in law, and who had also rendered
it more utterly void by force, it could not be expected
that the New York title would be in higher favor
with the courts of Vermont than the New Hampshire
title had been with the courts of New York. Accord-
ingly, the Vermont judges, viewing the confirmation
charters as the wages of apostacy, adjudged them to
be utterly void to every intent and purpose. This
did gross injustice to the grantees under these charters.
But, during the time that Nathaniel Chipman was
Chief Justice, in the year 1791, he settled the law
in relation to these charters in such manner as to do
equal justice to all concerned. In the language of
an eminent jurist, who practised before the supreme
court at the time, " Judge Chipman was the first
among our judges, who rose so far above the preju-
13
102 LIFE OF NATHANIEL CHIPMAN.
dices of the times in Vermont, against the State of
New York, as to give such eilect to the confirmation
charters, as effectually to secure the rights of the
grantees under them, consistently with the rights of
the New Hampshire grantees." (See D. Chipman's
Reports, p. 56.)
Ever watchful of the public interest, and ever
ready to render all the aid in his power for the pro-
motion of the general welfare, he wrote the following
letters to his correspondents : —
NATHANIEL CHIPMAN TO GENERAL PHILIP SCHUYLER.
Rutland, January 25th, 1790.
Sir, — When at Philadelphia last winter, we had
some conversations on the subject of opening a canal
from Lake Champlain to Hudson's River. I find the
subject will probably employ the attention of your
state legislature, at the present session. If the fol-
lowing information, which I have been at some pains
to collect, will be of any service in the course of that
business, I flatter myself it will be a sufficient apology
for my addressing you on the subject.
It will be needless to enumerate the advantages
that would, in such event accrue to the people in the
northern parts of the State of New York. I shall,
therefore, confine myself to Vermont. From this
state the trade of three counties would flow to New
York through that channel — Rutland, Addison, and
Chittenden. This comprehends a tract of country
one hundred and twenty miles in length, north and
south, and averaging in breadth, east and west, from
twenty to thirty miles. The county of Rutland, with
LIFE OF NATHANIEL CHIPMAN. 103
from eighty to one hundred and twenty miles of land-
carriage to Lansingburg, trades almost solely with
New York. From a pretty accurate account which
I have collected, there have been manufactured and
exported from this county, between the first of De-
cember, 1790, and the first of December, 1791, three
hundred tons of pot and pearl ashes. My accounts
from the counties of Addison and Chittenden, the two
northern counties on Lake Champlain, are not so ac-
curate ; but I am well assured that they exported
during the same year, not less than two hundred tons.
This last, from the great expense of transportation to
the New York market, is mostly vended in the Pro-
vince of Quebec. It is computed, that there was
in these three counties, the last year, a surplus over
and above the consumption of the inhabitants, of
thirty thousand bushels of wheat. Yet such is the
expense of transportation, that we gain very little by
the surplus. The cash price has been estimated at
from three shillings to three shillings and sixpence per
bushel ; but there is not a ready market for it at that
price. The price of wheat in the Quebec market is
usually very low. Those whose trade is with that
province are now purchasing it at three shillings.
Those who trade to New York do not, in general,
consider wheat an article in which they can make re-
mittance. Were a water communication opened, as
proposed, the Quebec trade, except for lumber, would
be immediately deserted, and the whole would centre
in New York. The reasons are so apparent that I
need not suggest them. The facility of conveyance
would enable the merchant to remit many articles,
10l LIFE OF NATHANIEL CHIPMAN.
which are now worthless, by reason of the expense
of transportation, and to give a higher price for all.
Merchants, too, would afford their goods, especially
heavy articles, at a much lower price than they can
at present. The annual saving in the price of salt
alone would be very great.
There are now in the county of Rutland fourteen
forges, one furnace, and one slitting mill, and two
furnaces in building, which will be in blast another
season. There are four forges in the county of Ad-
dison, and two in the county of Chittenden. In the
county of Rutland are great quantities of iron ore,
and also on the west side of Lake Champlain. Vast
quantities of iron, would in a few years be transported
on the proposed canal.
There are, in this part of the country, numerous
quarries of marble, some of them of a superior qual-
ity. Machines may be easily erected for sawing it
into slabs by water, and in that state, by means of a
water communication, it might become an important
article of commerce.
But above all, agriculture will furnish the means of
trade. The whole country, with few exceptions, will
produce good wheat. The wheat grown on the
marie lands about Lake Champlain, is of a quality,
perhaps inferior to none raised in any part of the
State of New York. Add to this, that there are few
better grazing countries. Take the whole extent of
this territory, there is not more than one third part of
it under cultivation ; but the population is rapidly
increasing. The number of inhabitants in these three
counties, on taking the last census, was thirty thou-
LIFE OF NATHANIEL CHIPMAN. 105
sand. Were a canal now opened, as proposed, I
think, taking into view, the extent and fertility of
the land on both sides of the lake, with the rapid
increase of population, it will not be extravagant to
suppose, that through this channel alone, New York,
in less than ten years, would command the trade of
one hundred thousand people. It is certainly an ob-
ject worthy of public attention, and I hope it will
meet with the encouragement it deserves. Be kind
enough to pardon me the trouble of this letter.
And believe me to be, with great respect
And sincere regard, your obedient servant,
Nathaniel Chipman.
NATHANIEL CHIPMAN TO MOSES ROBINSON, SENATOR IN CONGRESS.
Rutland, February, 12, 1792.
Dear Sir, — Before the receipt of your favor of
the 23d of January, I had been informed of the fate of
the bill apportioning representatives, &x. Peace be
to its manes. I must confess I did not at first advert
to the inequality which the smaller states suffered by
means of the fractional parts; but I soon found, while
the ratio of Virginia was one representative to 30,000
and some odd hundreds, that of Delaware was one to
59,000 ; of Vermont, one to 42,550. I have seen
Mr. Ames's speech on the subject ; he has treated it
in a masterly manner. I could not feel the force of
those arguments, which went upon the convenience
and inconvenience of number in the house, and a
proportion between the house and the senate. The
principle of the federal government is virtue. By
which, I understand a sentiment of attachment to the
106 LIFE OF NATHANIEL CIIIPMAN.
government and laws. This dictates a spirit of mod-
eration ; a facility in accommodating particular to
general interests ; reciprocally to accommodate one
with the least possihle injury to the other. That
ratio is the most equitable, and can alone support the
government without violence, which represents most
equally, both in number and quantity, all those pas-
sions, sentiments and interests, that have national
consequences. A legislature formed upon the prin-
ciple of equal representation, will rarely violate the
public sentiment, or sacrifice the national interest.
Deliberation is of more consequence than the saving
of a very considerable expense. Jn a government
like this, which derives its whole energy from public
sentiment, lengthy discussions on important national
matters, are indispensably necessary. The people
attentively peruse, and take part in the debates ;
they become acquainted with the several interests to
be accommodated ; they foresee the result, and are
ready to adopt the measures of government, as soon
as they are brought to a decision. I am very ap-
prehensive that the different opinions, which at pre-
sent so warmly agitate the people upon the Indian
war, is owing in some measure to the secrecy with
which that subject has been discussed in congress.
Not that I censure the manner of proceeding ; I can
suppose it necessary even at the risk of this conse-
quence. I do not suppose the whole is to be attri-
buted to this circumstance, but, I believe, in want of
that general information that would have been derived
from a public discussion, the public mind is much
more powerfully agitated by the two unsucessful ex-
peditions.
LIFE OF NATHANIEL CHIPMAN. 107
As to the justice of the war on the part of the
United States, of which so much has heen said, I am
wholly incompetent to decide. I do not know how
my opinion will agree with yours, but I think, in
whatever light it may place former measures, the jus-
tice of the war in its first rise cannot be made a ques-
tion in deciding what measures ought now to be
pursued. Peace, certainly, ought to be our darling
object. But the annals of history afford not a single
instance of a peace made or maintained with savage
nations flushed with victory, upon any terms of reci-
procity. They will never be sincerely desirous of
peace until they have felt the superiority of our arms.
To act only on the defensive, could never have the
desired effect. Such is the extent of our frontiers,
and such it would be if contracted within any given
limits that could rationally be proposed, that we can
hardly conceive of an army sufficient for a complete
defence, or a sum equal to the expenditures. A much
less army, well appointed, and well instructed in the
discipline necessary for an Indian war, would be suffi-
cient to extirpate the whole race of Indians, from the
six nations to the Mississippi, and from the Ohio to
the northern lakes. God forbid such an idea should
ever be realized. It is infinitely more to the honor of
the United States, to the honor of humanity, to en-
deavor to cultivate a secure peace with that people,
and to lead them by slow degrees, as they will bear
it to a relish for civil improvement. It is certain, for
a long time we can maintain with them only a pre-
carious peace, and that only by being ready in arms
on our part.
108 LIFE OF NATHANIEL CHIP MAN J
There will be found villains on the borders, fugi-
tives from justice in the states, who, upon the least
pique, or from motives of gain, will kill an Indian for
his pack, with as little remorse as they would kill a
beaver for his skin. Such, generally, arc the man-
ners and feelings of savages that they resent an injury
done to an individual of a tribe, as an injury done to
the whole tribe ; and an injury done by an individual
of another tribe or nation, is resented against the
whole tribe or nation. The impetuosity of their tem-
pers, when inflamed by a sense of injury, renders
them incapable of the delay of mutual discussion and
amicable satisfaction. Indeed, this sentiment pre-
vails not a little among those nations who think them-
selves highly civilized. This will be a source of hos-
tilities not to be wholly prevented by the utmost vigi-
lance and circumspection of government.
Everything goes on peaceably and cleverly in Ver-
mont. The improvement of inland navigation is at
present the most interesting topic of conversation.
The legislature of Massachusetts have granted to
Colonel Worthington and others the privilege of lock-
ing the falls on Connecticut River in that state. The
legislature of New York, it seems, arc determined
on opening a water communication between the wa-
ters of Champlain and Hudson River. These are
objects highly interesting to this state.
Believe me, with esteem,
Your most obedient servant,
N VIII \Mi:i. ClIlPMAN.
In the year 1793, he published a work entitled,
LIFE OF NATHANIEL CHIPMAN. 109
" Sketches of the Principles of Government," and
the same year he published a small volume, entitled,
" Reports and Dissertations," containing reports of a
number of cases decided while he was Chief Justice
of the Supreme Court, with dissertations on the stat-
ute adopting the common law of England, 1 the statute
of offsets, on negotiable notes, and on the statute of
conveyances. Soon after this he became dissatisfied
with the office of district judge. There was very
little business in the district or circuit court, and be-
ing anxious for more active employment, he resigned
his office of district judge, and returned to his prac-
tice at the bar, in which he continued until October,
1796, when he was again elected Chief Justice of the
Supreme Court.
The same year, he was appointed a member of a
committee to revise our code of statute laws ; and
it was well known, that almost all the acts known as
the revised laws of 1797 were written by him ; and,
being in the congressional library at Washington,
with the statute laws of the other states, they have
attracted the attention of jurists, who have not hesi-
tated to say, that they find no other code of statute
laws written in a style so distinguished for simplicity,
perspicuity, and technical accuracy.
As a politician, he was of the school of Washington
and Hamilton, who established the national govern-
ment against a powerful opposition from the anti-
federalists. He was a prominent member of the
federal party, and, because influential, the more ex-
1 This dissertation will be found in the Appendix, No. I.
14
110 LIFE OF NATHANIEL CHIPMAN.
posed to have his character assailed by the opposing
anti-federal party. Vet they made no specific charges
against him, but confined themselves to such vague
abuse as is comprised in the epithets of aristocrat,
monarchist, British tory. Nathaniel Chipman an aris-
tocrat ! This must sound very oddly to those who
have read his work on Government, and to all those
who have witnessed his plain, republican manners,
habits, and sentiments, through a long life.
The federalists did not fail to calumniate the dem-
ocratic party, — the anti-federalists having, at the
commencement of the French revolution, assumed the
name of democrats, — but charged them indiscrimi-
nately with being anarchists and French Jacobins.
How startling it would be at this day, should any one
assert that James Madison, always in the front rank
of conservatives, was an anarchist ! Such is the
course of all political parties, and such the result.
Each party struggles to retain its power, or to rise
into power, by depressing its opponents. And hence,
as in the instances above stated, individuals frequently
emerge from the clouds of calumny, in which they
had been enveloped by party interest grown into
party malignity, and appear directly the reverse of
what they had been represented.
Neither as a politician, nor as a statesman, was
the subject of this memoir one of those who are
aptly termed difficult men, but was always disposed
to compromise by yielding all minor points, — ever
considering it to be his duty to support the best
practicable measures. He seemed to be entirely
free from that egotistical obstinacy, which is so inju-
LIFE OF NATHANIEL CHIPMAN. Ill
rious in public, and so troublesome in private life.
But, whenever any measure was proposed which he
deemed a departure from settled principles, he seemed
to be instinctively opposed to it ; especially if he
deemed it a violation of constitutional principles, or
as establishing a precedent which might prove inju-
rious to the government. In this light he viewed the
proposition for the Hartford Convention. When,
therefore, in October, 1814, he received information,
at his residence in Tinmouth, that a proposition
would be made in the legislature, then in session at
Montpelier, to appoint delegates to that convention,
he immediately set out for Montpelier, arrived there
in season, and, by his influence, the measure was
suppressed.
We have seen that he took an active part in the
revolutionary war, and that, after he left the army,
he became an actor in our long and doubtful struggle
for independence as a state. And it appears, that
his interest in the public welfare, his attachment to
our free institutions, and his confidence in the suc-
cessful result of our experiment in free government,
were but increased by the obstacles which appeared
in the way, and by his unremitted exertions to remove
them. As a mother becomes more strongly attached
to a helpless child, which requires all her care, than
to a healthy one, which requires little attention, so
our patriot fathers became more strongly attached
to our free institutions, by reason of the care they
were compelled to bestow upon them in their infancy,
to prevent their dissolution.
As a statesman, he was practical rather than theo-
112 LIFE OF NATHANIEL CHIPMAN.
retical. He seemed to be aware that we can in
everything conceive of" a perfection which we can
never attain. And, while he observed others, in their
struggles to reach the highest conceivable perfection
at once, go beyond what is practicable and become
visionaries, he was content to take experience for his
guide, and advance slowly, but steadily, to reach the
utmost attainable perfection. His mind was eminent-
ly logical, but his reasoning was principally by anal-
ogy and induction. This gave his mind a wider
range, rendered it more discriminating, and gave it
a more practical cast. 1
1 The reader will find in the Appendix, No. VIII., a statement of some
of Judge Chipman's political opinions, in a letter to Alexander Hamilton,
occasioned by certain proceedings of the Democratic Society of the
county of Chittenden.
CHAPTER VII.
Elected Senator — His Speech in the Senate on a Resolution concerning
a breach of its Privileges — Letter expressing his Views of the French
Revolution — His Speech on the Judiciary Act.
In October, 1797, he was elected a senator in con-
gress for six years from the 4th of March, 1798. In
that body he was distinguished for his talents, his
learning and his independence. On the 19th of
March he delivered the following speech in the sen-
ate, on a resolution to bring the editor of the Aurora
before the senate, to answer for a breach of the privi-
leges of that body, in publishing certain virulent para-
graphs respecting its proceedings in certain matters
then under the consideration of the senate.
Mr. President, — The honorable gentleman 1 last
up has dwelt on an objection, which has been fre-
quently urged with peculiar emphasis in the course of
this debate, " that if the senate take upon themselves
to vindicate the privileges of their body, they must
of necessity be their own judges ; that this is unfit-
ting, that it is against natural justice, and ought never
to be admitted."
But the position is not founded in truth. When-
ever the right of self-defence, of self-protection, ex-
1 Mr. Marshall, of Kentucky.
114 LIFE OF NATHANIEL CHIPMAN.
ists in any individual, or society of individuals, the
right of judging each in his own cause equally exists.
It is admitted from necessity in certain instances. It
is in those instances strictly natural, and comports
with natural justice. It is, indeed, the great business
of government to diminish this necessity to individu-
als of exercising this right, by a provision of laws and
tribunals, to which all may resort for a redress of
injuries. But no provision can extend to all cases.
The right of self-defence, of self-protection, is, and
ever must, on certain occasions, be left to the indi-
vidual. It is left to the nation, and to certain pur-
poses, as I shall hereafter endeavor to prove, is vested
in the higher and more independent departments of
the government. The right of judging is in any man
or body of men coexistent and precisely coextensive
with the right of self-defence or self-protection. Of
what avail would be the right of self-defence, unac-
companied by the right to judge of the means and
measures of the defence necessary ? Is a person
whose life is threatened with an instant attack, coolly
to refer his case to some tribunal to decide whether
the occasion will justify a defence, and to what pre-
cise extent ? No, sir, the laws of nature do not thus
defeat its rights. Those laws have inseparably con-
nected the right of judging with the right of self-
defence ; the latter cannot exist even in theory with-
out the former. The individual is still under the
correction of the law, to which he is amenable for
the exercise of this and every other personal right.
Public bodies are under the restraint of character and
public opinion ; and these will, on all occasions, be a
LIFE OF NATHANIEL CHIPMAN. 115
sufficient security for the use of a sound discretion in
the exercise of the right.
Sir, in recurring to the resolution before us, I per-
ceive that in this discussion are involved principles
of great importance and extensive influence. For,
though at this time we apply them to a single part
only, yet either directly or in their consequences,
they affect all the great principles of our government.
They are, perhaps, involved in some degree of ob-
scurity ; but, I believe, the obscurity arises rather
from the novelty of a discussion of these principles,
than from anything in the nature itself of the princi-
ples. Satisfied with a practice which has been hand-
ed down to us from time immemorial, the principles
in which the practice was founded have been suffer-
ed to remain unexplored, and to become obscured
through the rust of neglect. It is necessary to draw
them from that rust, and carefully examine them on
this occasion.
If, sir, the privileges which are asserted in the reso-
lution are not constitutionally vested in this senate,
we ought to reject it, as leading to an unwarrantable
assumption of power. But, sir, if certain rights are
established by the constitution, and committed to the
senate in trust, for the protection of the body, and to
enable it in conjunction with the other branches of
the government calmly and securely to pursue the
great end of its institution, the happiness and pros-
perity of the community, can we neglect to assert
those privileges, and vindicate those rights, if at any
time we shall see them grossly violated ? If we
should neglect, from a supine inattention, we should
116 LIFE OF NATHANIEL CHIPMAN.
be chargeable with unfaithfulness to our trust. If,
clothed with competent authority, as I conceive we
are, we neglect through fear, we are chargeable with
weakness. If, from partial considerations or sinister
motives, we refuse, we are justly chargeable with
criminality.
It is said, sir, that the constitution of the United
States, by which alone all the powers of this govern-
ment are instituted, has vested in the senate no privi-
leges, in the parliamentary sense of that term, exclu-
sive of the privilege of the individual members. All,
however, have not gone so far.
Let us carefully investigate this important subject.
Let us inquire,
1. Whether any privileges are, by the constitution,
vested in this senate, extending to the whole body ?
And 2. If any such are vested, whether we are
prohibited by any express clause in the constitution,
or any necessary construction, to claim or assert
them ?
Sir, it is said that there is in the constitution no
grant of privileges to congress, or to either house of
congress, in express words, and this may without diffi-
culty be admitted. But first let it be observed, that
the words " granted " and " delegated " are not in
the constitution used in the appropriate sense of those
words, but as equivalent to the word " instituted."
The people of the United States, with the assent of
the states governments, which had been already es-
tablished, instituted the national government and its
several powers, but did not grant or delegate either.
Did the people grant or delegate the power to them-
LIFE OF NATHANIEL CHIPMAN. 117
selves ? This would be an absurdity. Or to the state
governments? This will not be contended. Or to
the administrators of the national government ? Cer-
tainly not. The national government and its powers
were, by the constitution, instituted for the general
good, and in the same instrument a provision is insti-
tuted for designating the several agents, who shall be
the administrators of the powers of that government.
They are not grantees or delegates of those powers ;
they are merely agents of the nation, constitutionally
designated for the exercise of those powers. In
speaking of the agents, there is no particular impro-
priety in saying that they are delegated to the exer-
cise of the instituted powers of government.
After premising these observations, I again say, we
may safely admit, that there is in the constitution no
grant, delegation or institution of privileges to con-
gress, or to either house of congress in express words.
And yet, sir, I have no possible hesitation in saying,
that it is clearly demonstrable that both branches of
the national legislature are fully invested with these
privileges.
1st. From the institution itself, its nature and
necessary results.
2d. From the certain, and, I may say, unavoidable
intention, in framing the constitution.
Sir, the federal constitution is, in its nature and
design, a political institution, calculated to concen-
trate the views and interests of all within the limits
of its operation to one great national point ; to bind
the states in a national union; and to give to the
whole, if the expression be allowable, a national indi-
15
118 LIFE OF NATHANIEL CHIPMAN.
viduality. And, if this constitution be not an ano-
maly, a hctcroclitc in kind, it has its necessary and
inseparable incidents, relations, and constructions.
Moral and social rights and duties result from moral
and social relations. Such relations necessarily, nay,
I may say, naturally exist in every community, varied
indeed, and modified, by the state of society and by
civil institutions. In these relations are found the
principles of common justice, exclusive of positive
institutions, as they are applied to social rights and
duties in each community. These are the principles
of common right, or, more intelligibly expressed, of
common law, in every nation. This is the true and
genuine source of these principles, whether in Eng-
land, in France, or in the United States.
When, sir, in forming a government, various parts
are instituted and organized into a whole, completing
a constitution, the institution of the various parts,
thus organized, is an institution of all the necessary
relations thence arising, and of all the rights, duties,
and powers resulting from these relations. It is true
that these rights, duties, and powers may, in their
observance and exercise, be limited and modified by
express provisions in the institution ; but, if not so
limited and modified, they are, in their nature, co-
extensive with the subject, scope, and end of the
institution itself. And is there, sir, anything in the
constitution of the United States, — in its origin, in
the manner of instituting its powers, or in the sub-
jects of its operations, — which so far changes its
nature, that no relations are incident to it? That no
principles of rights and duties arc to be found in its
LIFE OF NATHANIEL CHIPMAN. 119
results? Or are its incidents, its relations, barren
of all result, — affording no ground for genuine con-
struction ? No, sir ; it has its relations, necessary
and inseparable from its organization, and from those
relations certain rights and duties necessarily result.
Nor can it be doubted that, organized as this govern-
ment is, it is invested with power competent to pro-
tect and enforce, in every branch, all its constitutional
rights and duties. One of these rights is the right
of self-protection. It is a right natural to, and inhe-
rent in, every sensitive being ; from the lion that
prowls in the deserts of Lybia, to the ephemeral
insect that floats on the breeze of summer, — not
more in nations and communities instituted by man,
than in the gregarious association of brute animals
and insects. The community of the beaver, of the
bee and the ant, — to all, this right is the sacred
institution of nature. It will not be denied that it
exists in every nation, against foreign aggression as
well as against domestic violence. In the individuals
of a nation it exists, and is permitted in cases of im-
mediate and urgent necessity, under the guaranty
and restraint of law. In subordinate communities,
as in corporations, it also exists, under the same
guaranty and restraint of law ; for corporations are
considered but as individuals, as artificial persons,
and are, like other individuals, under the ordinary
control and protection of law. It is different with
the nation, — it is different with the several branches
of the government, — as they are placed in a state
of greater independence as they rise higher in the
community. Not to instance in the lower grades
120 LIFE OF NATHANIEL CHIP MAN.
of the judiciary magistracy, such is the situation of
a court of law, — in many respects an independent
branch of the government, — that, although the ad-
ministrator of the laws, it cannot, as a court, be
under the protection or control of the law in the
ordinary mode. It cannot be consistent with its
situation, by its personal prowess, to repel insults and
repress disturbances. Hence it is vested with the
right, the power to punish contempts, — a power
commensurate with the end, a due and orderly ad-
ministration of justice, — a power, though not ex-
pressed, always understood, and acknowledged to be
inseparably incident to the institution. This right
and power in the courts of law to punish contempts,
is, in each branch of the legislature, the privilege of
the body, and the right to punish a breach of these
privileges.
Placed in the most eminent station in the com-
munity, each branch of the legislature stands on still
higher ground than a court of law. Not being, as
a body, under the protection or control of the law in
the ordinary mode, and more independent, they have
no coordinate or superior power to which they may
apply, to protect them against insults, against per-
petual disturbances and interruptions. There is,
therefore, vested in each branch of the legislature,
this right and power of self-protection, — a right and
power to punish a breach of its privileges ; and, from
the relations of the legislature in the community, and
the important ends of their institution, the right and
power arc in tins respect more full, more extensive,
and more independent, than in any other department
of the government.
LIFE OF NATHANIEL CHIPMAN. 121
It will be observed, that, in this government, the
executive magistrate is under the control as well as
the protection of the ordinary laws, and, in the dis-
charge of his functions, in a situation different from
that of the legislature or judiciary branches, can
neither need nor obtain the exercise of this power.
Then, sir, the privileges of this senate derive their
origin from the constitution of the government, from
the nature and necessary result of the institution.
An equally strong, if not stronger, ground of argu-
ment, is to be found in the necessary and unavoidable
intention in the formation of the constitution. In
discussing this topic, sir, it will be necessary to in-
quire what were the habits of thinking, what were
the opinions which have universally prevailed in this
country, in civil life and on civil institutions, from its
first colonization down to the time of forming and
adopting the present constitution of the United
States, — habits and opinions which must have in-
fluenced every deliberation, and blended with every
result in that important transaction. It will be neces-
sary, likewise, to examine the constitution, and to
see whether, in all its expressions and allusions, it
does not clearly evince the predominance of such
habits and opinions.
The common law of England was, and is, the
common law of the several states. The people,
from the first colonization in the country, claimed
the common law as their birthright, and its rights
and privileges as their unalienable inheritance. For
such, sir, was ever the strong language of their
claim. To repel encroachments on these rights and
V2°2 LIFE OK NATHANIEL CH1PMAN.
privileges, they drew the sword against the country
from which they were descended, and by the revo-
lution, at an immense expense of blood and treasure,
secured the enjoyment to themselves, independent
of the parent state.
There were, however, admitted, in this country,
some necessary exceptions, some necessary variations
from the common law of England. From the differ-
ent situations of the two countries, and the difference
of the governments, the subjects of the law were
not always the same. The relations arising from the
monarchical constitution of the executive, and the
hereditary branch of the legislature, in England, did
not exist in this country. The doctrines, therefore,
peculiarly applicable to those subjects, could not
exist here in practice, — certainly not since the revo-
lution. The same observations will apply to reli-
gious and other national establishments, which have
either not been adopted, or have been discontinued
in the states.
The different land tenures in many of the states,
excluded in practice many doctrines of the common
law of England, there being no subject to which they
could apply. Subjects and relations may have ex-
isted here, which did not exist in that country. Ju-
dicial decisions on these subjects, founded in the
principles already mentioned, may have made an ad-
dition to our common law. Statutes of the different
states adapted to local circumstances and occurrences,
in many instances produced considerable variations
from the common law of England, and that in differ
ent degrees.
LIFE OF NATHANIEL CHIPMAN. 123
With these variations, the doctrines of the common
law which, from the country of its origin, and vast im-
provement as a science, we call the common law
of England, were indissolubly blended with all the
thoughts, opinions and actions of the people of these
states, in civil and social life. This common law and
its principles, they had constantly in view in all their
regulations, establishments and institutions. These
principles, long established in practice, they knew, they
considered them, (where no deviation was expressed,
or intention of deviation apparent,) as directing the
operations and limiting the extent of all their civil
institutions. A constant recurrence to these known
principles, served them on such occasions instead of
volumes.
Such, sir, were the habits, and such the opinions of
those illustrious characters, who, in the grand con-
vention of these states, framed and proposed the fed-
eral constitution, and of the people by whom this
constitution was adopted. Thus circumstanced, is
it to be supposed that the members of that conven-
tion and the people of these states tacitly excluded all
reference to the common law, its rules and reasons,
in the establishment of this institution, and all its va-
rious provisions ? and that, too, when employed in
subjects, the common law doctrines and principles of
which were as familiar to them as their ordinary
thoughts ; nay, which formed an essential part of all
their civil and political institutions? The supposi-
tion is absurd — the thing is wholly incredible. Nay
sir, to any powers of mind so formed, it was utterly
impossible.
124 LIFE OF NATHANIEL CHIPMAN.
Again, sir, let us resort to the instrument itself, to
the expressions and allusions in the constitution. We
find there mention of suits at common law, and in
some instances, an observance of the rules of the
common law, expressly enjoined with a view of lim-
iting in such instances, the legislative power of con-
gress. A judicial power is instituted, and the objects
of its jurisdiction generally ascertained ; but what
questions are of judicial cognizance, must be learned
from the common law, or must remain unknown.
To that law we must resort for the knowledge of a
jury, and of a trial by jury ; for the definition of an
impeachment, and for the manner of proceeding on
an impeachment ; for a definition of bribery, perjury,
felony, and many other terms there used in the tech-
nical sense of the common law. Even for a know-
ledge of the legislative power of congress we must
resort to the same source — the doctrines of the com-
mon law. It is true, the constitution has in particu-
lar or general terms limited the legislative power of
congress to certain subjects, but the power itself on
those subjects it has nowhere defined. It is nowhere
in that instrument said, that the legislature has always
the power of repealing, altering, and modifying its
former laws ; that its power is uncontrollable within
its constitutional limits. From a knowledge, how-
ever, of the common law principles and practice on
this subject, these things are perfectly familiar. But,
sir, it is unnecessary to multiply observations on the
common law principles embraced in the constitution.
Proofs to our purpose will be found in every article,
in every section ; even in those which were intro-
LIFE OF NATHANIEL CHIPMAN. 125
duccd for the purpose of altering the common law in
particular instances, forming exceptions to the general
rule.
The privileges of the legislative body were not in
this country a mere theory of the common law of
England, or of the law of nature. It is a doctrine
which was known, acknowledged and adopted in
practice in every colony before the revolution, and
since that period has justly been considered essential
to the functions of every independent legislature.
Some of the states constitutions, from abundant cau-
tion, have expressly recognized this power, while
others have been silent on the subject. But the legis-
latures of all the states have exercised the powers
whenever occasion demanded it. If there may now
be found a singular instance or two of a dereliction
of the right, or of the exercise of the power, that
cannot bear down the immense weight of authority
on the other side.
I conclude, therefore, that those rights which we
have denominated privileges, and the power of pun-
ishing for a violation, the right and power of self-
protection, are, from the nature of the institution,
and the clear, undeniable intention in the formation
of the constitution, vested in the fullest sense in this
senate. But we arc told, that incidents and results
otherwise necessary may be limited and excluded by
express stipulation, and that thus it is in the constitu-
tion of the United States. The 10th article of the
amendments to the constitution is in these words :
" The powers not delegated to the United States by
the constitution, nor prohibited by it to the people,
16
126 LIFE OF NATHANIEL CHIPMAN.
are reserved to the states and the people respect-
ively." This article, it is said, cuts oil' every source
of construction relative to power. That although
certain rights and duties may result from certain re-
lations established in the constitution, yet the arm of
power raised to enforce these rights or duties in any
instance not specified in the words of the instrument,
is at once paralyzed by the magic of this formidable
article.
But let us fairly examine it. It is not said " the
powers specified in terms " or " the powers not ex-
pressed and defined," but, " the powers not dele-
gated," or to express the precise meaning in the true
constitutional sense. The powers not instituted " are
reserved." And surely, sir, the powers instituted in
the constitution, are delegated in any sense in which
the word is there used. Sir, in answer to this ob-
jection, permit me to repeat a former observation :
" When, in forming a government, various parts are
formed and organized into a whole, completing a
constitution, the institution of the various parts thus
organized is an institution of all the necessary rela-
tions thence arising, and of all the rights, duties and
powers resulting from those relations." Nay, sir,
these results, the rights, duties and powers, are the
real end of the constitution ; the organization is but
the means of effecting that end — stripped of its re-
sults, what remains of the constitution ? An organized
body without a mind — a skeleton without life, with-
out efficiency. Does, then, this article annul, does
it limit any one right, duty, or power fairly delegated
or instituted in the constitution r Does it in any
LIFE OF NATHANIEL CHIPMAN. 127
sense vary the original, genuine construction ? It
certainly does not. It is mere surplusage ; or, to say
the least, was admitted from abundant caution.
Still, sir, another objection is urged from the same
source. In the first article of the amendments, it is
said, " Congress shall make no law respecting an es-
tablishment of religion, or abridging the freedom of
speech, or of the press, or the right of the people
peaceably to assemble, and to petition the govern-
ment for a redress of grievances." The meaning of
this article, it is insisted, is, that congress shall have,
on no pretence, the right or power to restrain, or in
any way to animadvert on the publishing in speech
or in print, of the most outrageous abuse, the most
violent threats against the government. Nay, the
most pressing invitations, the most public and daring
exhortations to immediate insurrection and rebellion.
Congress are not, as in the same article relative to an
establishment of religion, prohibited to make any law
on the subject of speech, or of the press ; but to
make any law abridging the freedom of either. If
we suppose this prohibition to extend equally to the
case now before us, as to that of passing a law, still
it opposes no objection. True freedom or liberty is
inseparable from the just and the right. True free-
dom is always governed and limited by this ancient
and expressive maxim, " So use your own that you in-
jure not the right of another." It is too monstrously
absurd to maintain, that to guaranty to any one the
liberty or freedom of action, is to guaranty to him a
right to do wrong — to commit crimes with impunity.
Yet this is precisely the whole force of the objection.
128 LIFE OF NATHANIEL CHIP MAN.
Still, it is urged, that, although it may be admitted
that the senate have certain privileges, and a power
to punish a breach of those privileges, yet no pub-
lication, in speech or in print, respecting the senate
and their proceedings, however false, however slan-
derous, however rancorous, can amount to a breach
of privilege. If it be conceded as a natural right,
and from the necessity of the case, that the senate
shall have the power to punish, as a breach of its
privileges, a direct attack upon them in session, —
an insolent disturbance of their deliberations, — yet
it can extend to nothing out of their presence.
This, I think, however, will, on a bare examination
of the cases which have occurred, and may occur,
be found not to be just. The ground is much too
narrow. The end for which these privileges were
instituted is, to protect and secure the senate against
all those violent proceedings from without, which
directly, or by immediate consequence, tend to out-
rage their persons, interrupt their deliberations, over-
awe their proceedings, or to corrupt their integrity.
Suppose some one should, out of the house, make
a personal attack on a member, to prevent his attend-
ance on his duty in the senate ; or should threaten
to assassinate a member, if he did not vote in a
certain manner on some question depending ; or
suppose a number of persons assembled at a little
distance, out of the hearing of the senate in their
scats, should constantly utter the most outrageous
threats, with a view that information might reach
and overawe the members; were they to publish
these threats, in handbills stuck upon the walls of the
LIFE OF NATHANIEL CHIPMAN. 129
senate-house, or in a newspaper printed and daily
circulated in the place of their session ; — would not
all these be equally breaches of the privileges of this
house ? Or is a threat less so because it is delibe-
rately reduced to writing or published in print ? Cer-
tainly not. An attempt to bribe a member, although
done out of the house, is clearly a breach of the
privileges of the house. It was solemnly so decided
by the house of representatives. Another case, I am
clearly of opinion, is the one before us. Is not a
false and scandalous publication, made and circulated
in the place of their session, maliciously misrepre-
senting the motives and proceedings of the senate
and its organs, — reducing them, if without all power
of redress, to sit and deliberate under the constant
apprehension of the public contempt, the public in-
dignation, injuriously excited against them on the
very subject of their deliberation, — a high-handed
and daring breach of the privileges of the body ?
Is it not an attempt, has it not a direct tendency,
to overawe their proceedings ? Or does it vary the
nature of the attempt, that the members of this body
have firmness enough to resist the impulse ? Cer-
tainly, sir, if any case can occur which may be
deemed a breach of the privileges of this house, this
is one. If any which can call for an exercise of its
powers, this is eminently one. I therefore think it
my duty heartily to concur in the resolution.
The following letter will show the views which
he entertained of the French revolution while it was
in progress, and subsequent events have shown how
far these views were correct :
130 LIFE OF NATHANIEL CJIIPMAN.
Philadelphia, February 28th, 1800.
Dear Sir, — The mail arrived so late last week,
that I had not time to call on Mr. Wollcot ; I will
see him, and write to you the result by the next
mail.
It is difficult to say what will be the effect of the
late revolution in France, — what will be the next
revolution, and the next ; and whether it will end in
the restoration of monarchy to the ancient line under
some modifications, or whether ambitious tyrants,
under the title of Directors or Consuls, according
to the caprice of the moment, will continue to exer-
cise over the people of that country the most severe
military despotism for years to come, cannot be fore-
seen. I do not believe that the policy of France
will be materially changed under the present regimen.
Wo may expect to find the same faithless spirit of
intrigue, the same restless ambition, pursuing its
object, per fas et nefas, by open war or treacherous
peace, as either shall appear at the time most con-
ducive to the end they have in view. It is not easy
to foresee what will be the final effect of all this
upon the people of this country. With one part of
the community, it seems to be a link in the chain
which leads them on to a love of tyranny and mili-
tary despotism, and to forget, if not to hate and
despise, the rational liberty which is secured to all
in this country, by the mild energies of our own
government. The infatuation is unaccountable ; —
the warmest zeal for liberty, with the most enthu-
siastic adoration of tyranny.
The late revolution in France will probably retard
the business of our envoys ; their credentials were to
LIFE OF NATHANIEL CHIPMAN. 131
the Directory, which is not now in existence. They
wait for the arrival of other credentials to the Con-
suls ; perhaps it will be best to -send a number in
blank, to be filled up, as occasion shall require, with
the style of the executive authority for the time
being. I am, dear sir,
Your sincere friend,
Nathaniel Chipman.
By the first judiciary act organizing the courts of
the United States, passed in September, 1789, two
courts, denominated circuit courts, were to be holden
annually in each judicial district, by any two justices
of the supreme court and the judge of the district.
The attendance of two justices of the supreme court
at each circuit court in the respective districts, beside
two sessions of the supreme court holden annually
by all the justices at the seat of government, required
of the judges such burdensome services, that they at
length addressed the following letter on the subject
to President Washington :
Sir, — Your official connection with the legisla-
ture, and the consideration that application from us
to them cannot be made in any manner so respectful
to government as through the President, induce us
to request your attention to the inclosed representa-
tion, and that you will be pleased to lay it before the
congress.
We really, sir, find the burdens laid upon us so
excessive, that we cannot forbear representing them
in strong and explicit terms.
132 LIFE OF NATHANIEL CHIPMAN.
On extraordinary occasions, wc shall always be
ready, as good citizens, to make extraordinary exer-
tions. But, while our country enjoys prosperity, and
nothing occurs to require or justify such severities,
we cannot reconcile ourselves to the idea of existing
in exile from our families, and of being subject to a
kind of life on which we cannot reflect without ex-
periencing sensations and emotions more easy to
conceive than proper for us to express.
With the most perfect respect, esteem, and attach-
ment, we have the honor to be, sir,
Your most obedient and most humble servants,
(Signed) John Jay,
William Cushing,
James Willson,
John Blair,
James Iredell,
Thomas Johnson.
The President of the United States.
The President communicated this letter to congress
on the seventh of November, 1792. And it was un-
doubtedly in consequence of this communication that
the judiciary act was revised at the same session.
An act was passed authorizing one justice of the
supreme court, with the district judge, to hold a cir-
cuit court. In case of their being divided in opinion
on the final hearing of a cause, or on a plea to the
jurisdiction, the cause to be continued to the succeed-
ing term, when another justice might attend. This
arrangement afforded some relief to the judges of the
supreme court, but was found to produce serious in-
LIFE OF NATHANIEL CHIPMAN. 133
convenience to the suitors. To remove these incon-
veniences, and to improve the judicial system, con-
gress passed an act on the 13th of February, 1801,
entitled an act for the more convenient organization
of the courts of the United States. By this act, six
circuits were established ; five for the Atlantic states,
and a sixth for Kentucky, Tennessee, and the district
of Ohio. To each of the five first circuits, three
circuit judges were assigned, and an annual salary
of two thousand dollars was allowed to each judge.
In the sixth circuit, the judicial duties were to be
performed by a circuit judge, with the assistance of
the district judges of Kentucky and Tennessee.
After the circuit judges had been appointed and
commissioned, and after they had entered upon the
performance of their judicial duties, according to the
provisions of the act constituting the circuit courts,
in the senate of the United States, on the sixth day
of January, 1802, Mr. Breckenridge, a senator from
Kentucky, introduced the following resolution :
Resolved, That the act of congress, passed on the
13th of February, 1801, entitled, an act for the more
convenient organization of the courts of the United
States, ought to be repealed.
In opposition to this resolution, Nathaniel Chipman
delivered the following speech :
Mr. President, — After the length of time which
has already been consumed, and the abilities which
have been displayed in this debate, I can have but
little hope of exhibiting anything new for the con-
sideration of the senate. Yet, momentous as I con-
17
134 LIFE OF NATHANIEL CHIPMAN.
sider the decision to be made on the present ques-
tion, involving consequences powerfully affecting the
most important principles of the constitution, I can-
not persuade myself to give a mere silent vote on the
occasion. In the observations which I intend to
make, I shall endeavor, briefly, to examine some of
the principal arguments only, which have been ofl'ered
in favor of the resolution on your table.
The arguments, in support of the resolution, have
been reduced under two general heads.
1. The expediency of repealing the law contem-
plated in the resolution, and
2. The constitutional power of congress to repeal
that law.
To evince the expediency of the measure it has
been said, that the system of 1793 was adequate to
all the purposes of the national judiciary ; and that
the judges, appointed under that system, were com-
petent to all the judicial duties required. Upon this,
sir, I shall briefly observe, that from the number of
terms of the supreme and circuit courts, and the
immense distance to be travelled, the labor was un-
reasonably great. From the labors and fatigues of
riding the circuit, there could not be allowed time
sufficient for those studies, and for that calm and de-
liberate attention, which is so necessary to the pro-
per discharge of the duties of a judge.
At times it has happened, that a supreme judge
could not attend a circuit court ; from this circum-
stance the court in the district to which I have the
honor to belong, has more than once failed to be
holden. At other times the arrival of the judges has
LIFE OF NATHANIEL CHIP.MAN. 135
been so late, that the proper business of the term
could not be completed. These failures occasioned
very great delay, expense, and vexation to the suitors ;
and we know that the same, or greater failures and
delays, have unhappily been experienced in other
parts of the United States ; failures and delays which
I cannot attribute to any criminal negligence of the
judges, but to the burthensome duties imposed by
that system, and the infirmities and accidents to which
men must ever be exposed, in the performance of
labors so arduous and extensive.
To prove that judges of the supreme court must
have been competent to all the duties of that and the
circuit courts, the honorable gentleman who intro-
duced the resolution, drew a comparison from the
courts and judges in England. He has told us that
in England there are but twelve judges, and three
principal courts ; that these courts embrace, in their
original or appellate jurisdiction, almost the whole
circle of human concerns ; that the two courts of
king's bench and common pleas, consisting each of
four judges, entertain all the common law suits of forty
shillings and upwards, arising among nine millions of
the most commercial people in the world ; and that
they have, moreover, the revision of the proceedings
of the subordinate courts in the kingdom, down to the
courts of piepoudre ; and that from long experience
these courts have been found fully competent to all
the business of the kingdom. This statement, sir, is
by no means correct. In England the house of lords
is the supreme court of appeals in the last resort, in
cases both at law and in equity. Instead of three
136 LIFE OF NATHANIEL CHIPMAN.
there are four superior courts. The court of chan-
cery, in which are decided all suits and matters in
equity, including a very numerous and important class
of causes. The courts of king's bench, common
pleas, and exchequer, all of which have original juris-
diction in civil causes ; and the king's bench, besides
being the highest court of criminal jurisdiction, has
also the correction and revision of the proceedings
of all the subordinate courts, by writ of error or other-
wise. The subordinate courts, which were barely
mentioned, are very numerous. There are, in Eng-
land, exclusive of Wales, more than forty counties,
all of which have their separate courts and judges.
Some of the counties are regular franchises. Lan-
caster, Chester and Durham, have their separate
courts, both of law and equity, which claim cogni-
zance of causes and parties, within their respective
jurisdictions, even against the courts at Westminster.
There are also an immense number of cities and
towns corporate throughout the kingdom, the courts
and judges of which, though more or less limited in
their jurisdiction, entertain a vast variety of civil suits.
There are, besides these, the high court of admiralty,
which has an exclusive jurisdiction in maritime causes;
the courts of the two universities, the prerogative
court of the Archbishop of Canterbury, the archiepis-
copal court of York, the diocesan and other ecclesi-
astical courts, having also an extensive jurisdiction,
of a civil nature, in causes testamentary, and those
relating to the distribution of the goods of intestates.
Wales is a principality, and its courts have exclu-
sive original jurisdiction within the territory. The
LIFE OF NATHANIEL CHIPMAN. 137
great sessions is the highest court of the principality,
from which a writ of error lies in the court of king's
bench. The subordinate courts and judges are
equally numerous, in proportion to the territory and
inhabitants, with that of England. I omit the courts
of conscience and other inferior courts, and magis-
trates almost without number. From this view, though
imperfect, it is evident that the comparison attempted
by the honorable gentleman, is by no means favora-
ble to his conclusion. The population of that coun-
try exceeds that of the United States by one third,
perhaps more ; but its whole extent, exclusive of
Wales, though not comprehended in the nisi prius
circuits, does not equal one of the circuits of the
United States, under the system of 1793 ; and yet
that country employs, it is believed, more courts and
judges, not only than the government of the United
States, but than all the individual states taken in addi-
tion. I do not, however, conceive that any advan-
tage is to be derived from the comparison, to the one
side or the other. The situation of property and
civil policy, numerous and complicated rights, intro-
duced by ancient usages, and supported by laws and
habits, and by interests public and private, may ren-
der a greater number of courts and judges, a more
extensive judicial system, necessary in one country
than in another ; 1 think it ought to be laid wholly
out of the question.
It has been said, that a knowledge of the local
laws, of the customs and manners of the several
states, is necessary to the judges of the supreme
courts, and cannot be dispensed with on appeals in
138 LIFE OF NATHANIEL CHIPMAN.
causes arising in different parts of the union, and
that the judges can acquire this knowledge in no way
but by attending the circuit courts in the United
States. But let me observe, sir, that the laws of the
several states, which vary from the common law, are
to be found in their statute books, in the decisions of
their courts and their rules of practice ; for no cus-
tom can as such become a law until it shall have
been adopted by usages and established by judicial
decisions. All these may be made to appear on an
appeal, either on the face of the record in the plead-
ings, or in a special verdict, or by proper exemplifi-
cation, and will afford the court in such case a more
correct knowledge than the recollection of a judge of
what he has caught in the hurry and fatigue of a
circuit.
A further objection has been urged against the con-
tinuance of the present judicial system, from the addi-
tional number of judges which it has introduced,
which it is said may prove dangerous to the liberties
of the country. An honorable gentleman from Geor-
gia, (Mr. Jackson,) cited the opinion of an author
who has written on the British constitution, that the
greatest political evil which could befall a country,
was the existence of large judiciary bodies, and who
had illustrated his ideas on the subject by instancing
the parliaments of France. The observation does
not, neither was it meant by the author to apply to
any particular number of courts in due subordina-
tion, each consisting of a small and limited number
of judges, and employed solely in proper judicial bu-
siness. But it applies with force to courts composed
LIFE OF NATHANIEL CHIPMAN. 139
of numerous members and forming large bodies, who,
in addition to their proper judicial functions, are per-
mitted to assume an authority in the political concerns
of the nation.
Such were the parliaments of France, the late
judicial courts of that country ; particularly the par-
liament of Paris. The members of this body were
very numerous, and as it was necessary that all
royal edicts, before they were to be considered as
laws, should be registered in that court ; they claimed
the right of deliberating and deciding on the regis-
tration of any edict offered by royal authority, and
consequently of permitting or refusing it the sanction
of a law. With this claim that body certainly be-
came dangerous to the existing government, and the
contest which ensued between them and the king on
this subject, had no doubt a powerful efTect in pre-
cipitating the late revolution in that country.
But there is nothing in all this which can be applied
to the courts of the United States. Let me observe,
sir, that there has always appeared to me in the
system of 1793, which is sought to be restored, a
very great and manifest impropriety. The circuit
courts were in that system, though subordinate, in
some measure blended with the supreme court, one
or more of the judges of the supreme court being
always judges of the circuit courts. This rendered
the supreme court a fluctuating body, some of the
judges of the supreme court being always excluded
in the decision of causes coming by appeal from the
different parts of the United States. And when two
supreme judges held the circuit courts of the four re-
140 LIFE OF NATHANIEL CHIP MAN.
maining judges, who were to decide on an appeal,
three might reverse a judgment against the opinion of
the fourth, and the opinion of the two judges in the
circuit court, unless those judges, from whose judg-
ment the appeal was made, gave also their opinions
in favor of an affirmance, and which they might do,
their exclusion being indeed only voluntary from a
high and just sense of propriety. This has always
appeared to me, to say no more, a very glaring im-
propriety in that system. The circuit courts under
that system have indeed been compared to the nisi
prius courts in England, but the slightest attention
will convince any one that they do not compare.
The circuit courts in our system are courts of origi-
nal and distinct jurisdiction. Not so the courts of
nisi prius in England ; they are considered as a
branch of the superior courts, at Westminster, and
are held by a commission of assize usually issued to
a judge of one of the superior courts, and an asso-
ciate for each of the six circuits into which England
is for that purpose divided. When a cause in any of
the superior courts is by the pleadings put on an issue
of fact, it is with the record sent to be tried at nisi
prius by a jury of the proper county ; instead of call-
ing up a jury to try it at the bar in Westminster J Jail.
After the trial at nisi prius, the verdict with the record
i< remitted to the court, out of which it was sent, and
there the opinions of the nisi prius judge, and the
conduct of the jury arc; examined, and considered as
matters passing in the same court. Here, then, the
comparison wholly fails; there is no similarity be-
tween the two systems, except that of a judge riding
the circuit.
LIFE OF NATHANIEL CHIPMAN. 141
Here, sir, I shall waive any further observations on
this part of the subject, and come to the great ques-
tion which it is necessary to decide. Have congress
the constitutional power to repeal the law as con-
templated by the honorable mover of this resolution ?
To abolish the courts established by that law, put
down the judges and abolish their salaries ? It is
true, as was observed by the honorable gentleman
from Georgia, (Mr. Baldwin,) that the resolution does
not necessarily involve that question, because the re-
pealing act, if the resolution should be adopted, may
be so modified as to avoid any difficulty relative to
the salary of the judges. But as the honorable mover
avowed his intention to be an abolition of the courts,
the offices of the judges, and their salaries, and as the
principal arguments have, in the course of this de-
bate, been directed by that view of the subject, I shall
be permitted to consider it on that ground.
One source of argument in favor of the measure
proposed, has been derived from the powers consid-
ered as incident to every legislative body. It is said,
that a power to repeal all its legislative acts is insepa-
rably incident to every sovereign legislature ; that the
act, the repeal of which is contemplated, is a legisla-
tive act of congress, therefore congress necessarily
have the power to repeal it ; that to admit the con-
trary, is to say that the power of congress at one
time, is not equal to its power at another time ; that
a subsequent congress may be bound by the acts of a
former, contrary to a very important maxim in legis-
lation ; in a word, that it is to make the creature
greater than the creator, as it denies to congress the
18
I iJ LIFE OF NATHAiMFL CHIPMAN.
power over its own acts which it lias passed, and will,
of course, put a stop to all amendments, all improve-
ments of our laws. The doctrine here meant to be
asserted is not in the full extent applicable to the
legislative powers under our constitution. There are
acts which congress are by that instrument expressly
denied the power of passing ; there are acts which,
whenever passed, congress cannot repeal, or rather
the elfects of which they cannot suspend, much less
can they destroy. They are expressly denied the
power of passing ex post facto laws ; and this applies
no less forcibly to a repealing act than to any other
act — it is by its operation that the nature of the act
is in this case determined. Every act, which in its
operation attempts to divest any right previously ac-
quired, whether by a former act of legislation, or by
any other lawful means of acquisition, is in name,
nature and essence, ex post facto. Indeed, sir, I ap-
prehend that some gentlemen have been led into a
mistake on this subject by an incautious admission of
maxims and theories of legislative powers, in an-
other government, but which do not apply to our
government, as instituted and limited by our consti-
tution. There are, sir, in every nation, two kinds of
legislative powers. The one is original and extraor-
dinary, and may be called the power of political legis-
lation. It is by an associating nation employed in
forming and organizing the government, in disposing
its powers, and defining or limiting their exercise.
The other is derivative ; the ordinary power of legis-
lation, and is employed in the civil regulations of the
community. In the first consists the political sove-
LIFE OF NATHANIEL CHIPMAN. 143
reignty of the nation. This power is transcendent.
It is paramount to all other powers in the nation. It
can create powers, rights, and duties, and can abolish
them at pleasure ; not because what it does is always
wise or even just, but because no other power in the
nation can have a right, or can be equal to control its
operations. In Great Britain, from ancient usage,
the consent of the nation, witnessed by long and gen-
eral acquiescence, both the ordinary and extraordi-
nary powers of legislation are considered to be vested
in the parliament of the nation. Acting in this ca-
pacity of political sovereign of the nation, the British
parliament can create rights, and can destroy existing
rights at will ; although in exercising such acts of
power, they proceed with great caution, and are care-
ful to indemnify individuals, whose rights they may
have injured. In this capacity it can, as it has done,
new model the government. It can fix and alter the
duration of parliaments, and change and limit the de-
scent of the crown. Indeed, vested with this power,
in addition to the ordinary powers of legislation, the
figure is hardly too bold, by which, when acting on
subjects within its authority, it is said to be omnipo-
tent. Not so the congress of the United States.
They possess not that transcendent power, that un-
controllable sovereignty of the nation ; they possess
the ordinary powers only of legislation, and these
powers they derive under the constitution of the
United States. By this instrument their powers are
instituted, limited, and defined. This instrument is
the act of the political sovereign, the people of the
United States. To them it was proposed, and they
144 LIFE OF NATHANIEL CHIPMAN.
through their agents empowered for that purpose,
enacted it the fundamental and supreme law of the
national government.
They have said, as they have a right to say on this
subject, congress shall act ; or that they may act at
their discretion. Here the congressional power is
limited ; there is placed a barrier which shall not be
passed. Congress, as I observed, possess not this
paramount power ; but in one mode provided for alter-
ing and amending the constitution, they are under
certain restrictions, permitted an inceptive power.
They have a right to originate proposals of amend-
ments, which, when ratified by three fourths of the
state legislatures, to whom the national sovereignty
is, in this instance, referred, are adopted into, and
become a part of that instrument. In another mode
the state legislatures have the power of inceptions.
They also may originate proposals of amendments,
which congress must refer to a convention of the
people for their ultimate acceptance and ratification.
In this instance alone have the people of this coun-
try reserved to themselves a portion of the national
sovereignty, in the exercise of which only is found that
voice of the people, which, because it is not to be
resisted, is sometimes called the voice of God. This,
sir, is the authority of the supreme law under which
we act, the constitution of the United States, an au-
thority indispensably binding. We have no right,
when we wish to carry a favorite measure, to which
we find some barrier opposed by the constitution, to
prostrate or overleap that barrier. We have no right
to say that the national sovereign, could it now be
LIFE OF NATHANIEL CHIPMAN. 145
consulted, would dispense with the limitation, would
remove the barrier, which, in our present opinion,
stands opposed to the public good. No, sir, we may
not approach this ground. It is dangerous ; it is an
usurpation of the national sovereignty. We are but
agents of the nation, acting under a limited author-
ity. All our acts which exceed that authority are
void.
These are the principles to be applied in the inves-
tigation of constitutional powers. Let us then ex-
amine the constitution upon these principles, and
fairly determine whether we are permitted the power
for which it has been contended, the constitutional
power to remove a judge, by abolishing the office,
and, consequently, to deprive him of his salary ? The
first provision which we find in the constitution re-
lating to the judicial department, is in the second sec-
tion, where, among other powers enumerated, it is
declared that congress shall have power " to establish
tribunals inferior to the supreme court." Upon this
it was observed by the honorable gentleman from
Georgia, (Mr. Jackson,) that this being a grant to
congress of a legislative power to establish inferior
courts, necessarily includes the power to repeal ; that
this being a first grant, cannot be restrained nor taken
away by any subsequent provision in the constitution
upon the same subject ; that we are to take the rule
of construction, that the first grant, and the first
words of a grantor in a deed, shall prevail over a
subsequent grant, or subsequent words of a different
import. Are we, indeed, sir, to apply in the con-
struction of the constitution, the law, the supreme
146 LIFE OF NATHANIEL CHIPMAN.
law of the nation, the rules devised for the construc-
tion of a deed, a grant, by which a few paltry acres
are transferred from one individual to another ? No,
sir, very different arc the rules of construction. The
first act of the grantor, but the last act of the legisla-
ture shall prevail, or where, in any case, is the power
to repeal ? Another rule more universally applica-
ble, is, that you shall so construe a law that every
part of it, if possible, may stand together ; that every
part may have its operation. Thus, if there be a
general provision in the former part of a law, and
there follow a particular provision, which cannot take
effect unless some part of the former provision be
set aside, the latter shall be considered as a limita-
tion of the former, and which shall be carried into
effect so far only as it is not incompatible with the
latter.
In the third section of the constitution is a further
provision, " that the judicial power of the United
States shall be vested in one supreme court, and in
such inferior courts as the congress may, from time
to time, ordain and appoint." The highest judicial
authority shall not be divided into two courts. It
shall, to use a ruder phrase, be one and indivisible.
I consider it as imperative to congress to establish,
not only a supreme court, but also to establish some
courts of inferior jurisdiction, which may be modified
and extended, from time to time, as experience and
future expediency shall dictate, so that it be without
violence to any part of the constitution. The words
" as congress may from time to time ordain and ap-
point," were introduced with intent so far to give a
LIFE OF NATHANIEL CHIPMAN. 147
discretion on the subject. The power of erecting
courts is here taken for granted, as it is contained in
the clause before cited, from the second section, sup-
plied by the general clause by which it is declared
that " congress shall have power to make all laws
which shall be necessary and proper for carrying into
effect all the powers vested by the constitution in the
government of the United States, or in any officer
or department of the government." I cannot under-
stand it, for how is it possible so to understand it,
that the words " may ordain and appoint," in their
connection, imply also to abolish ? Certainly it is not
a necessary implication. That congress are required
to make a provision of inferior courts, that the thing
is not merely optional, is very clear from another part
of this section, declaring to what class the judicial
authority of the United States shall be extended.
(Read that part of the section.) Here observe, the
supreme court has original jurisdiction in the smaller
number only of the cases specified, so that without a
provision of inferior courts there would be no pro-
vision for the greater number, and the judicial au-
thority, instead of being extended to all the cases enu-
merated, would, in fact, be limited to a few only.
Let us now examine the provision relating to the
judges, which is contained in the former part of this
section ; a provision intended to secure to the judges
a proper degree of independence. It is declared that
" the judges, both of the supreme court and infe-
rior courts, shall hold their offices during good beha-
vior." The judges of all the courts are placed on the
same footing. The expression is not that they shall
148 LIFE OF NATHANIEL CHIPMAN.
continue in office, which might seem to be compul-
sory, but shall hold their offices, implying, at their
option, during good behavior. For a judge may re-
sign, he may accept a place incompatible with the
otiice of judge, as he may, on election, accept the
place of senator or representative in congress, by
which his office of judge would be vacated by his own
act implying a resignation. The force of the expres-
sion clearly is, that no judge, either of the supreme or
inferior courts, so long as he continues to behave
well, can be removed from the office, or the office
removed from him by the act of any other. For the
expression being general, with one only exception, in
the nature of a proviso, that he continues to behave
well, it is exclusive of every power, either to remove
the judge from the office, or, as has been ingeniously
indeed suggested, of removing the office from the
judge, causing it to vanish from his hold on any other
ground or pretence whatever. It is a well-known
rule, that the expression of an exception in any pro-
vision, excludes every other exception by implication.
Next it follows, " and shall " (the judges shall) at
stated times receive for their services a compensation
which shall not be diminished during their continu-
ance in office." How long shall they continue to
receive, or be entitled to receive, an undiminished
compensation or salary ? So long as they shall con-
tinue to hold their respective offices. And how long
are they entitled to hold their offices ? So long as
they shall continue to behave well. That is, the du-
ration of the time for which they shall be entitled to
receive an undiminished salary, shall be equal to the
LIFE OF NATHANIEL CHIPMAN. 149
duration of the time for which they are entitled to
hold their offices, equal to the duration of the time in
which they shall continue to behave well. What
rarely happens in subjects of this nature, the posi-
tion that the judges cannot, during good behavior,
without a direct violation of the constitution, be de-
prived of their offices, or their salaries, is capable
of the highest proof, not merely by a train of proba-
ble and metaphysical reasoning, but by the clearest
and plainest mathematical demonstration. It is a
comparison of quantities in the duration of time ;
or shall it. now, for the first time, be said, that when
one quantity, or one length of duration is equal to
a second, and the second to a third, that nevertheless
they are not equal to each other ? Have intuitive
truths at length changed their nature ? Are they in
these times converted to falsehood ? Have the clear-
est axioms of ancient science suffered a revolutionary
subversion ? No, sir, they remain the same ; they
are still capable of assisting us to the same infallible
conclusions.
The honorable gentleman from Kentucky has told
us, that if the construction against which he con-
tended had been contemplated by the framers of the
constitution, it would have been explicitly declared,
that the judges shall hold their offices and salaries
during good behavior, fairly admitting that a declara-
tion, thus explicit, would have been conclusive for
the construction of his opponent. Surely it will not
be contended that the idiom of the English laniruarre
is so inflexible, and its interpretation so precise, that
identical positions to be equally clear and explicit,
19
150 LIFE OF NATHANIEL CHIPMAN.
can be expressed by identical words and phrases
only. Had the expression been, they should hold
tluir offices and receive their salaries during good
behavior, would not the meaning have been the same
and equally expressive ? Indeed, the word hold,
though well applied to an office, is not very properly
applied to taking the payment of a salary. Or had it
been " they shall hold their offices during good be-
havior and while they continue in office, which is to
be during good behavior, they shall continue to re-
ceive their salaries, which shall not, during that time,
be diminished," it certainly would have been a decla-
ration equally explicit with that suggested by the gen-
tleman. And this, it has been clearly and demonstra-
bly proved, is the same as that which is expressed in
the constitution.
I will here, sir, though it might, perhaps, have been
more properly done before, make a few observations
on the independence of the judiciary. It has been
said by some gentlemen, in effect, that though the
judges ought to be independent of the executive,
though they ought not to hold their offices or sala-
ries, dependent on the will of the president, yet, in a
government like ours, there can be no reason why
they should not, like the other departments of the
government, be dependent on public opinion, and on
congress, as properly representing that opinion ; that
if the judges are made thus independent, if congress
cannot remove them by abolishing their offices, or in
any other way except that of impeachment for mis-
behavior, they will become a dangerous body in the
state ; they may by their discussions on the consti-
LIFE OF NATHANIEL CHIPMAN. 151
tutionality of a law, obstruct the most important
measures of government for the public good.
Unfortunately for the argument, this doctrine agrees
neither with the nature of our government, which is
not vested with the unlimited national sovereignty,
but from that derives its powers, nor with the posi-
tive and solemn declaration of the constitution. The
constitution is a system of powers, limitations and
checks. The legislative power is there limited, with
even more guarded caution than the executive ; be-
cause not capable of a check by impeachment, and
because it was apprehended, that left unlimited and
uncontrolled, it might be extended to dangerous en-
croachments on the remaining state powers. But to
what purpose are the powers of congress limited by
that instrument ? To what purpose is it declared to
be the supreme law of the land, and as such, binding
on the courts of the United States, and of the several
states, if it may not be applied to the derivative laws
to test their constitutionality ? Shall it be only called
in to enforce obedience to the laws of congress, in op-
position to the acts of the several states, and even to
their rightful powers ! Such cannot have been the
intention. But, sir, it will be in vain long to expect
from the judges, the firmness and integrity to oppose
a constitutional decision to a law, either of the na-
tional legislature, or to a law of any of the powerful
states, unless it should interfere with a law of con-
gress, if such a decision is to be made at the risk of
office and salary, of public character and the means
of subsistence. And such will be the situation of
your judges, if congress can, by law, or in any other
152 LIKE OF NATHANIEL CHIPMAN.
way, except by way of impeachment, deprive them of
their offices and salaries on any pretence whatever.
For it will be remembered, that the legislative powers
of the several states, as well as those of congress, are
limited by the constitution.
For instance, they are prohibited, as well as con-
gress, to pass any bill of attainder, or ex post facto
law. The decisions of the judges upon such laws, and
such decision, they have already been called upon to
make, may raise against them, even in congress, the
influence of the most powerful states in the union.
In such a situation of the judges, the constitutional
limitation on the legislative powers can be but a dead
letter. Better would it be they were even expunged.
Thus, sir, it appears that the independence of the
judges, even of congress, in their legislative capacity,
is agreeable to the nature of our government, to the
whole tenor as well as the express letter of the con-
stitution. But, sir, at this late stage of the debate, I
will not further enlarge ; I will only add, that upon
these principles, and with these views of the subject,
I shall give a hearty negative to the resolution on
your table.
CHAPTER VIII.
Represented the town of Tinmouth, in the Legislature, for several
years — Elected one of the Council of Censors, who proposed Amend-
ments to the Constitution, and published the "Constitutionalist" in
support of the Amendments.
After the expiration of his senatorial term of six
years, Judge Chipman returned to the practice of
law, not having an office, but attending to important
cases in the different counties. He represented the
town of Tinmouth in the legislature, in the years
1806, 1807, 1808, 1809 and 1811. In March, 1813,
he was elected one of the council of censors — a
council consisting of thirteen persons elected by a
general ticket, at the expiration of every seven years,
vested with certain censorial powers, and whose duty
it is to examine the constitution, and if they find it
defective, to propose such amendments as they shall
judge will improve it, and to call a convention to con-
sider such amendments, and to adopt or reject each
amendment so proposed.
Nathaniel Chipman had ever considered the con-
stitution to be defective, and had a strong desire to
have it amended by the constitution of the senate, as
a coordinate branch of the legislature — by taking
the power of appointment from the legislature and
vesting it in a board less liable to a corrupt and cor-
154 LIFE OF NATHANIEL CHIPMAN.
rupting influence, by providing for the appointment
of the judges of the supreme court during good beha-
vior, and by constituting a court of chancery distinct
from the courts of law. His experience on the bench
of the supreme court led him to remark, that for a
judge at the same term to turn his attention to the
trial of issues of fact and issues of law, and to cases
in chancery, required a versatility of talent which fell
to the lot of no human being.
This council of censors, to say the least, comprised
as much learning, talents, and practical good sense
as any one of the numerous councils which have been
elected. They proposed the amendments to the con-
stitution above-named, and called a convention to de-
cide upon their adoption or rejection agreeably to the
anomalous provision of our constitution.
In support of the proposed amendments, in addi-
tion to their address to the people, they published a
pamphlet entitled, " The Constitutionalist, or Amend-
ments of the Constitution, prepared by the Council
of Censors, supported by the Writings and Opinions
of James Willson, L.L. D., late one of the associate
judges of the Supreme Court of the United States,
and Professor of Law in the College of Philadelphia ;
also, by the Writings and Opinions of other Emi-
nent Citizens of the United States. With Explana-
tory Notes of modern date. The only skill and
knowledge of any value in politics, is that of govern-
ing all by all." Heraditus, in Sir IV. Temples Mis-
eel Ian >/.
The first amendment, dividing the legislature, by
constituting a senate as a coordinate branch, having
LIFE OF NATHANIEL CHIPMAN. 155
in the year 1836 been adopted, there is in every state
in the union, as well as in the government of the
United States, a senate or council made a coordinate
branch of the legislature. And since experience has
proved the utility, and even necessity of such divi-
sion of the legislature, any further discussion of the
subject appears useless, I therefore omit the said
amendment, and extract from the pamphlet, the other
proposed amendments, with the authorities and argu-
ments in support of them, as follows :
Art. 14. In addition to the powers herein before-
mentioned, and the ordinary powers and duties of the
executive, prescribed by the constitution and laws of
this state, the governor shall nominate, and by and
with the advice and consent of the senate, appoint
all judges in the courts of law and chancery, judges
of probate, sheriffs, high bailiffs, justices of the peace,
and major and brigadier generals. And also, in like
manner, shall nominate and appoint all other officers
for whose appointment provision shall not be other-
wise made by law or this constitution.
15. The representatives of the several counties
shall, at every session of the legislature, from time to
time, in county convention, recommend to the gover-
nor suitable persons to be appointed justices of the
peace in the several towns in their respective coun-
ties, when such appointments shall be necessary. And
shall, in like manner, when the appointment of a
sheriff or high bailiff shall be necessary in any county,
recommend two suitable persons for each or either of
said offices, as the case may be ; and the governor
156 LIFE OF NATHANIEL CHIPMAN.
shall nominate to each office respectively, one of the
two persons recommended.
18. There shall be established in this state a court
of chancery, distinct from the courts of law, with
general jurisdiction in causes properly determinable
in equity.
19. The chancellor shall hold his office on the
same tenure, and be removable in the same manner,
as is provided in the case of judges of the supreme
court ; and shall in like manner be secured in his
compensation.
20. The judges of the supreme court shall hold
their offices, respectively, during good behavior ; they
shall, nevertheless, be removed from their respective
offices, by a resolution of the senate and house of
representatives, assigning reasons for such removal ;
and concurred in by a majority of two-thirds of each
house.
The reasons of our prejudices against the executive and
judicial powers, explained.
" Habits contracted before the late revolution of
the United States, operate in the same manner since
that time, though very material alterations may have
taken place in the objects of their operations. Be-
fore that period, the executive and the judicial pow-
ers of government were placed neither in the people,
nor in those, who professed to receive them under the
authority of the people. They were derived from a
different and a foreign source ; they were regulated
by foreign maxims; they were directed to foreign
purposes. Need we be surprised that they were
LIFE OF NATHANIEL CHIPMAN. 157
objects of aversion and distrust ? Need we be sur-
prised that every occasion was seized for lessening
their influence and weakening their energy ? On the
other hand, our assemblies were chosen by ourselves.
They were the guardians of our rights, the objects of
our confidence, and the anchor of our political hopes.
Every power which could be placed in them was
thought to be safely placed ; every extension of that
power was considered as an extension of our own
security.
At the revolution, the same fond predilection and
the same jealous dislike existed and prevailed. The
executive and the judicial, as well as the legislative
authority, was now the child of the people ; but to
the two former the people behaved like step- mothers.
The legislature was still discriminated by excessive
partiality ; and into its lap every good and precious
gift was profusely thrown. Even at this time people
can scarcely divest themselves of those opposite pre-
possessions ; they still hold the language which ex-
presses them, though, perhaps, they do not perceive
the delusive mistake. In observations on this sub-
ject, we hear the legislature mentioned as the people's
representatives. The distinction intimated by impli-
cation, though probably not avowed upon reflection,
is, that the executive and judicial powers are not con-
nected with the people by a relation so strong, or
near, or dear. But it is high time that we should
chastise our prejudices ; and that we should look
upon the different parts of government with a just
and impartial eye. The executive and judicial pow-
ers are now drawn from the same source, are now
20
158 LIFE OF NATHANIEL CHIPMAN.
animated by the same principles, and are now directed
to the same viuU with the legislative authority ; they
who execute, and they who administer the laws, are
as much the servants, and therefore, as much the
friends of the people as they who make them. The
character and interest and glory of the two former
are as intimately and as necessarily connected with
the happiness and prosperity of the people, as the
characters, and interests, and glory of the latter are.
Besides the execution of the law and the administra-
tion of justice under the law, bring it home to the for-
tunes, and farms, and houses, and business of the
people. Ought the executive or the judicial magis-
trates, then, to be considered as foreigners ? Ought
they to be treated with a chilling indifference. 1 Wil-
son's Works, 393, 899.
The Executive Power.
The council of censors observe, that, " it is too ob-
vious to need proof, that bodies of men are unstable
in proportion as they are numerous ; and conduct
without due consideration and regard to the public
interest in proportion as their responsibility is shared
by numbers. We have, therefore, thought it advisa-
ble to confer the power of nomination to office on
the governor, who, by his annual election, is imme-
diately responsible to the people ; and the power of
controlling appointments to ollicc in pursuance of his
nomination, on the senate, the less numerous branch
of the legislature. The council hope, by these means,
to leave the choice of the members of the legisla-
ture more free from the influence of designing men,
LIFE OF NATHANIEL CHTPMAN. 159
who may often promote the election of individuals, in
order that themselves, in their turn, may be pro-
moted. And also to relieve the legislature itself from
the corrupting influence of a too frequent exercise of
the power of appointment, as well as to save much
time of the legislature and expense to the state, now
wasted in the present mode of electing officers."
Judge Wilson, speaking on this subject, says — "the
executive as well as the legislative power ought to be
restrained. But there is a remarkable contrast be-
tween the proper modes of restraining them. The
legislature, in order to be restrained, must be divided.
The executive power, in order to be restrained, should
be one. Unity in this department is at once a proof
and an ingredient of safety and of energy in the ope-
rations of government.
" The restraints on the legislative authority must,
from its nature, be chiefly internal ; that is, they must
proceed from some part or division of itself. But
the restraints on the executive power are external.
These restraints are applied with greatest certainty,
and with greatest efficacy, when the object of restraint
is clearly ascertained. This is best done when one
object only, distinguished and responsible, is conspic-
uously held up to the view and examination of the
public.
" In planning, forming, and arranging laws, delib-
eration is always becoming, and always useful. But
in the active scenes of government there are emer-
gencies in which the man, as, in other cases, the
woman, who deliberates, is lost. Secrecy may be
equally necessary as despatch. But can either secrecy
160 LIFE OF NATHANIEL CHIPMAN.
or despatch be expected when, to every enterprise,
and to every step in the progress of every enterprise,
mutual communication, mutual consultation, and mu-
tual agreement, among men, perhaps of discordant
views, of discordant tempers, and of discordant inter-
ests, are indispensably necessary ? How much time
will be consumed ; and when it is consumed, how little
business will be done ? When the time is elapsed ;
when the business is unfinished ; when the state is in
distress, perhaps, on the verge of destruction ; on whom
shall we fix the blame ? Whom shall we select as the
object of punishment ? Ruinous dissensions are not
the only inconveniences resulting from a numerous
executive body ; it is equally liable to pernicious and
intriguing combinations. When the first takes place,
the public business is not done at all ; when the last
takes place, it is done for mean or malicious pur-
poses.
" The appointment to office is an important part
of the executive authority. Much of the ease, much
of the reputation, much of the energy, and much
of the safety of the nation depends on judicious and
impartial appointments. But are impartiality and fine
discernment likely to predominate, in a numerous ex-
ecutive body ? In proportion to their own number
will be the number of their friends, favorites, and de-
pendents. An office is to be filled. A person nearly
connected by some of the foregoing ties with one of
those who arc to vote in filling it, is named as a can-
didate. His patron is under the necessity to take any
part, particularly responsible in his appointment. He
may appear even cold and indifferent on the occasion.
LIFE OF NATHANIEL CHIPMAN. 161
But he possesses an advantage, the value of which is
well understood in bodies of this kind. Every mem-
ber who gives, on his account, a vote for his friend,
will expect the return of a similar' favor on the first
convenient opportunity. In this manner a reciprocal
intercourse of partiality, of interestedness, of favorit-
ism, perhaps of venality, is established ; and in no par-
ticular instance is there a practicability of tracing the
poison to its source. Ignorant, vicious and prosti-
tuted characters are introduced into office ; and some
of those who voted, and procured others to vote for
them, are the first and loudest in expressing their as-
tonishment, that the door of admission was ever opened
to men of their infamous description. The suffering
people are thus wounded and buffeted, like Homer's
Ajax in the dark, and have not even the melancholy
satisfaction of knowing by whom the blows are given.
Those who possess talents and virtues, which would
reflect honor on office, will be reluctant to appear
as candidates for appointments. If they should be
brought into view, what weight will virtue, merit and
talents for office have, in a balance held and poised
by partiality, intrigue and chicane ?
" The person who nominates or makes appoint-
ments to office should be known. His own office,
his own character, his own fortune should be respon-
sible. He should be alike unfettered and unshel-
tered by counsellors. No constitutional stalking-horse
should be provided for him, to conceal his turnings
and windings, when they are too dark and too crook-
ed to be exposed to public view. Instead of the dis-
honorable intercourse, which I have already men-
\G2 LIFE OF NATHANIEL CHIFMANl
tioned, an intercourse of a very different kind should be
established — an intercourse of integrity and discern-
ment, on the part of the magistrate who appoints, and
of gratitude and confidence on the part of the people,
who will receive the benefit from his appointments.
Appointments made and sanctioned in this highly re-
spectable manner, will, like a fragrant and beneficent
atmosphere, diffuse sweetness and gladness around
those to whom they are given. Modest merit will be
beckoned to, in order to encourage her to come for-
ward. Barefaced impudence and unprincipled in-
trigue will receive repulse and disappointment, de-
servedly their portion.
" If a contrary conduct should unfortunately be
observed, and unfortunately, a contrary conduct will
be sometimes observed, it will be known by the citi-
zens whose conduct it is ; and, if they are not seized
with the only distemper incurable in a free govern-
ment — the distemper of being wanting to them-
selves — they will, at the next election, take effectual
care that the person who has once shamefully abused
their generous and unsuspecting confidence, shall not
have it in his power to insult and injure them a second
time by the repetition of such an ungrateful return.
" The observations, which I have made on the
appointments to office, will apply, with little varia-
tion, to the other powers and duties of the executive
department.
" If the executive power of government is placed
in the hands of one person, who is to direct all the
subordinate offices of that department, is there not
reason to expect, in his plans and conduct, prompt-
LIFE OF NATHANIEL CHIPMAN. 163
itude, activity, firmness, consistency and energy?
These mark the proceedings of one man ; at least, of
one man fit to be intrusted with the management of
important public affairs. May we not indulge, at least
in imagination, the pleasing prospect, that this one
man — the choice of those who are deeply interested
in a proper choice — will be a man distinguished for
his abilities ? Will not those abilities pervade every
part of his administration ? Will they not diffuse their
animating influence over the most distant corners of
the nation ? May we not further indulge the pleas-
ing imagination, in the agreeable prospect — in one
instance, at least, it is realized by experience — that
the public choice will fall upon a man, in whom dis-
tinguishing abilities will be joined, and sublimed by
distinguished virtues — on a man, who, on the neces-
sary foundation of private character, decent, respect-
ed and dignified, will build all the great, and honest,
and candid qualities, from which an elevated station
derives its most beautiful lustre, and public life its
most splendid embellishments ?
" If these pleasing prospects should unhappily be
blasted by a preposterous choice, and by a prepos-
terous conduct of the magistrate chosen, still, at the
next election, an effectual remedy can be applied to
the mischief; and this remedy will be applied effect-
ually, unless, as has been already intimated, the citi-
zens should be wanting to themselves. For a people
wanting to themselves, there is indeed no remedy in
the political dispensary. From their power there is
no appeal ; to their error, there is no superior princi-
ple of correction." 1 Wilson's Works, 400-404.
164 LIFE OF NATHANIEL CHIPMAN.
Note 1.
1. I will examine this subject further. By art. 2,
sec. 2, of the federal constitution, the president " shall
nominate, and by and with the advice and consent of
the senate, shall appoint ambassadors, other public
ministers, and consuls ; judges of the supreme court,
and all other officers of the United States, whose ap-
pointments are not herein otherwise provided for, and
which shall be established by law."
If we compare this with the 14th article of the
amendments, we find a likeness in the manner of ap-
pointing officers ; the president nominates, and by and
with the advice and consent of the senate appoints ; so
does the governor. The president appoints officers
in every state ; the governor appoints in this state.
Would the president, who resides in the city of Wash-
ington, be likely to know who are qualified to be
attorney and marshal in Vermont district as well as
the governor, who resides here, would know, who
are qualified to be sheriffs and high-bailiffs, in the sev-
eral counties ? No. This, then, is a reason why the
governor should rather be entrusted to nominate
sheriffs and high-bailiffs, than the president to nomi-
nate the attorney and marshal. The governor's means
of information are better, therefore he would be
more likely to nominate suitable persons. If all our
representatives in congress should unitedly recom-
mend A. to the president as a suitable person to be
appointed attorney or marshal of this district, would
the president be obliged to nominate him ? No. The
federal constitution does not require it. But if the
LIFE OF NATHANIEL CHIPMAN. 165
representative of a county, in county convention, re-
commend A. and B. as suitable persons to be sheriff",
in their county, the governor, by the latter part of
the 15th article of the amendments, is obliged to
nominate one of them to the senate for the office.
So it is as to high-bailiff. Here, then, we see restric-
tions laid upon the governor that are not upon the
president. We will now attend to the former part of
the 15th article, namely : " The representatives of
the several counties shall, at every session of the legis-
lature, from time to time, in county convention, re-
commend to the governor suitable persons to be ap-
pointed justices of the peace in the several towns in
their respective counties, when such appointments
shall be necessary." This clause shows it to be not
only the duty but the right of the representatives of
such county to recommend to the governor suitable
persons to be appointed justices of the peace. Right
and obligation are reciprocal ; that is, wherever there
is a right in one or more persons, there is a corres-
ponding obligation, either express or implied. Here
the representatives have a constitutional right to re-
commend suitable persons — to whom ? to the gover-
nor. Now it is absurd, to suppose the governor is
not under obligation to regard such recommendation
in making his nomination to the senate. It is not,
however, to be understood that the governor, who is
responsible to the people, has no voice in this busi-
ness. He is to exercise a sound discretion, and if he
find that the representatives, in convention, have re-
commended an unsuitable person for the office, he
will say that they had not a right to do it, and he is
81
1G(> LIFE OF NATHANIEL CIIIPMAN.
not obliged to regard such recommendation. Some
may object, that these county conventions will letter
and shelter the governor too much with council-
lors ; that they will serve as a constitutional stalking-
horse to conceal his turnings and windings. There
is weight in the objection. The governor, if inquired
of why he appointed such and such persons, sheriff,
high-bailiff, and justices, may answer that they were
recommended to him by the representatives of the
county in county convention ; still I believe there is
a propriety in having county conventions to recom-
mend. It is what we have been accustomed to with
this variation ; that instead of carrying their recom-
mendations to the joint committee of both houses, they
lay them before the governor, and he lays them be-
fore the senate. If, on close examination, the per-
sons recommended are found suitable for the offices,
they will be appointed ; otherwise, not. It is hoped
that the people will receive some benefit from this
variation ; that the characters and qualifications of per-
sons recommended by conventions will be more thor-
oughly inquired into by the governor and senate than
they have heretofore been by the joint committee of
both houses. Even if an unsuitable person should be
recommended to the governor, and the governor
should nominate him to the senate, it is expected
that the senate, if they know the person to be unsuit-
able, will withhold advice and consent to his appoint-
ment to office. With so much caution — and there
cannot be too much caution — persons who cannot
read and write, and persons of bad moral character,
will not likely be appointed justices of the peace ;
LIFE OF NATHANIEL CHIPMAN. 167
some such have heretofore been appointed (incau-
tiously) by the joint committee of both houses.
Again, if a known bankrupt should induce the
representatives of his county to agree on him for a
sheriff, and, in county convention, they should recom-
mend him to the governor for the office, the governor
would not be likely to nominate him to the senate, or
if he did, the senate would not be likely to give their
advice, and consent to his appointment. But, how
often such persons have been appointed sheriffs by the
joint committee of both houses, not only to the dam-
age of individuals, but to the injury of the state.
If the representatives of each county, in county
convention, can recommend suitable persons to be
appointed sheriff, high-bailiff, and justices of the
peace in their respective counties, and this recom-
mendation is obligatory on the governor to nominate
them to the senate, why need the representatives
complain because the appointment does not ulti-
mately depend upon them ? If they can have the
very men they recommend, what more do they want ?
Do they wish unsuitable persons to be appointed, in
case they should happen to recommend some to the
governor ?
If the governor and senate are as much the ser-
vants, therefore, as much the friends of the people as
the representatives are, why should the people be un-
willing to trust them to give a final vote in the choice
of their officers ? It is said by Judge Wilson, that
" the character and interest and glory of the governor
and senate are as intimately and necessarily con-
nected with the happiness and prosperity of the peo-
168 LIFE OF NATHANIEL CHIPMAN.
pie as the character, and interest, and glory of the
representatives are." Why then not trust them as
soon ? Is it because they are fewer in number than
the representatives ? Do wisdom and patriotism con-
sist in numbers? If so, then double the number of
your representatives, and you double their wisdom
and patriotism.
This would be a fortunate thing for the people —
more wisdom and more patriotism in that branch
would do us no harm. But wisdom and patriotism
do not consist in numbers, and it is hoped that as
much of these will fall to the share of the governor
and senate as the other branch of the legislature, and
that they will be more competent to appoint suitable
persons to fill the aforesaid offices.
As to the more important offices, which do not con-
cern one county more than another, it seems highly
proper that the governor should nominate suitable
persons to fill them.
Note 2.
The provision contained in the 14th article of the
amendments, which empowers the governor to nomi-
nate, and by and with the advice and consent of the
senate, appoint all judicial officers, &c, is founded
upon principles which are unquestionable in their na-
ture, and in strict conformity to the common sense
and reason of mankind. Yet it is to be feared, that
passion may triumph over reason, and good sense be
forced to yield to inveterate prejudice. We know
that habits, once formed and become familiar, are
not easily laid aside. It may be difficult to per-
LIFE OF NATHANIEL CHIPMAN. 169
suade those who have been, or expect to be, mem-
bers of the house of representatives, to transfer from
that body a power, to the use of which its members
have been so long accustomed, and which they have
found to be, in their hands, such efficient means of
self-aggrandizement. We have no hesitation in de-
claring the opinion, that the power of appointment to
office could not have been placed in more improper
hands than it is by the present constitution. To the
existing mode it would indeed be preferred, much
preferred, that the power of appointment of the judges
of the supreme court should be exercised by the peo-
ple at large, and of the judges of the county court
by the people of the several counties. This method
would, at least, give an opportunity to examine the
characters and canvass the qualifications of the sev-
eral candidates for these offices, and, if the people
would be governed in their choice by party views and
prejudices, they would, nevertheless, be free from the
combined influence of corrupt and selfish motives.
As to the degree of responsibility the people might
feel for the fidelity and ability of these officers, we
admit it would probably not be greater, nor could it
be less, than what is now felt by the members of the
house of representatives.
Judicial Power.
The council of censors observe, in their address,
that " the frequent election of the judges of the courts
of law and chancery, it is believed, must unavoidably
have a tendency to make them feel dependent on
their electors, and other influential members of so-
170 LIFE OF NATHANIEL CHIP MAN.
ciety ; and to prevent the unbiased exercise of their
opinions in the decision of causes between men high
in office or influence, and the members of the lower
and more ordinary classes of society, and thereby cor-
rupt the fountain as well as the streams of justice.
The members of the council, therefore, thought it
their duty to devise and recommend an amendment of
the constitution, rendering the judiciary so far inde-
pendent as to place them above the influence of pop-
ular party or personal motives ; and yet liable to re-
moval for reasonable objections, which do not amount
to cause of impeachment. They have, therefore,
proposed so to amend the constitution as to have
them appointed during good behavior, yet removable
by the resolution of both houses of the legislature,
passed by two-thirds of the members of each, as be-
ing the best medium between absolute independence
and an entire dependence on the representatives of
the people. The ordinary judges of the courts of
common jurisdiction, it has been thought expedient,
should hold their offices for the term of five years,
removable in the same manner. Chancery powers
cannot, from their nature, be accurately defined or
limited, and are, therefore, in some measure dan-
gerous ; yet, when reduced to system by practice and
prudence, highly useful, important and necessary.
The inconvenience of the exercise of these powers
by the judges of a court of common law jurisdiction,
has been unhappily experienced by the suitors in our
courts. Great delay in causes in chancery have been
occasioned by want of time, and hurry of business on
the law side of the court. Necessary rules and orders
LIFE OF NATHANIEL CHIPMAN. 171
for bringing causes to a hearing and decision cannot
be adopted and maintained in our present system,
and the unavoidable precipitancy in the proceedings,
forbids the expectation of the attainment of correct
decisions by the proper discussion of the parties and
the deliberation of the court. The council has, there-
fore, recommended the establishment of a court, with
chancery powers, distinct from the courts of law.
In reasoning upon this subject, Judge Wilson says:
" The third great division of the powers of govern-
ment is the judicial authority. It is sometimes con-
sidered as a branch of the executive power, but inac-
curately. When the decisions of courts of justice are
made, they must, it is true, be executed ; but the
power of executing them is ministerial, not judicial.
The judicial authority consists in applying, according
to the principles of right and justice, the constitution
and laws to facts and transactions in cases in which
the manner or principles of this application are dis-
puted by the parties interested in them.
" The very existence of a dispute is presumptive
evidence, that the application is not altogether with-
out intricacy or difficulty. When intricacy or diffi-
culty takes place in the application, it cannot be pro-
perly made without the possession of skill in the
science of jurisprudence, and the most unbiased be-
havior in the exercise of that skill. Clear heads,
therefore, and honest hearts are essential to good
judges.
" As all controversies in the community respecting
life, liberty, reputation and property must be influ-
enced by their judgments, and as their judgments
172 LIFE OF NATHANIEL CHIPMAN.
ought to be calculated not only to do justice, but also
to give general satisfaction, to inspire general confi-
dence, and to take even from disappointed suitors —
for in every cause disappointment must fall on one
side — the slightest pretence of complaint ; they
ought to be placed in such a situation as not only to
be, but likewise to appear superior to every extrinsic
circumstance, which can be supposed to have the
smallest operation upon their understandings or their
inclinations. In their salaries, and in their offices,
they ought to be completely independent ; in other
words, they should be removed from the most distant
apprehension of being effected, in their judicial char-
acter and capacity, by anything except their own be-
havior and its consequences.
" We are," says a very sensible writer on political
subjects, " to look upon all the vast apparatus of
government as having ultimately no other object or
purpose but the distribution of justice. All men are
sensible of the necessity of justice to maintain peace
and order, and all men are sensible of the necessity
of peace and order for the maintenance of society." 1
" The pure, and wise, and equal administration of the
laws," says Mr. Paley, 2 " forms the first end and bless-
ing of social union." But how can society be main-
tained ; how can a state expect to enjoy peace and
order unless the administration of justice is able and
impartial ? Can such an administration be expected,
unless the judges can maintain dignified and inde-
pendent characters ? Can dignity and independence
1 Hume's Essay, 35. * 2 Paley, 285.
LIFE OF NATHANIEL CHIPMAN. 173
be expected from judges who are liable to be tossed
about by every veering gale of politics, and who can
be secured from destruction only by dexterously swim-
ming along with every successive tide of party ? Is
there not reason to fear, that in such a situation the
decisions of courts would cease to be the voice of
law and justice, and would become the echo of fac-
tion and violence ?
" This is a subject that most intimately concerns
every one who sets the least value upon his own
safety, or that of his posterity. Our fortunes, our
lives, our reputations, and our liberties are all liable
to be affected by the judgments of the courts. How
distressing and melancholy must the reflection be, that
while judges hold their salaries only at pleasure, and
their commissions only for the term of a few years,
our liberties, our fortunes, our reputations and our
lives may be sacrificed to a party, though we have
done nothing to forfeit them to the law." 1 Wilsorfs
Works, 405-407.
I might here, with great propriety, quote from the
book called The Federalist, written by Messrs. Madi-
son, Hamilton and Jay, their sentiments respecting
independency in the judiciary, were it not for swelling
this work beyond its intended size. They wrote after
the convention had recommended the federal consti-
tution, and before its adoption, in favor of the princi-
ples contained in that instrument. A single passage
will be enough to show their sentiments on this point.
They say, " Upon the whole, there can be no room
to doubt that the convention acted wisely in copying
from the models of those constitutions which have
174 LIFE OF NATHANIEL CHIFMAN.
established good behavior as the tenure of judicial
ofrices, in point of duration ; and, that so far from
being blamable on this account, their plan would
have been inexcusably defective, if it had wanted this
important feature of good government."
We learn Mr. Jefferson's sentiments on this sub-
ject by looking into his proposed constitution for Vir-
ginia. There we find him to Bay, that " the judges
of the high court of chancery, general court" of
common law, " and courts of admiralty, should be ap-
pointed, &c. and to hold their ofrices during good
behavior." 1 He would have them removable only by
impeachment.
Note 3.
I now propose to examine the constitutions of the
several states in relation to the judiciary department.
And this examination will, I think, not only remove
all scruples as to the republicanism of an inde-
pendent judiciary, but also afford some testimony in
favor of its establishment in Vermont. The institu-
tions of other states, approved by many years experi-
ence, by all political parties, are surely entitled to some
consideration. We cannot doubt but that the framers
of these constitutions had solely the security of the
rights of the people in view, not the aggrandizement
of any person or party. That there should be differ-
ences of opinion, on various points, is not extraordi-
nary. But that all the states which have formed
constitutions, should have so nearly agreed on the
1 Jctferson's Notes, 299.
LIFE OF NATHANIEL CHIPMAN, 175
subject of the independence of the judiciary, would
certainly be extraordinary, if there was nothing in
its principle favorable to the impartial administration
of justice, and to the security of the rights of the
people.
New Hampshire. — "All judicial officers duly ap-
pointed, commissioned, and sworn, shall hold their
offices during good behavior, excepting those con-
cerning whom there is different provision made in
this constitution. Provided, nevertheless, the gover-
nor, with consent of council, may remove them upon
the address of both houses of the legislature. No
person shall hold the office of judge of any court after
he has attained the age of seventy years." (Adopted
1792.)
Massachusetts. — Chap. 3, art. 1. " All judicial offi-
cers, duly appointed, commissioned and sworn, shall
hold their offices during good behavior, excepting
such concerning whom there is different provision
made in this constitution. Provided, nevertheless,
the governor, with the consent of the council, may
remove them upon the address of both houses of the
legislature." (Adopted 1730.)
Rhode Island. — This state has formed no consti-
tution. The charter of Charles II. forms the basis of
its government. Under that their judges are annually
elected, and their courts are such as might be ex-
pected.
Connecticut. — This state has formed no constitu-
tion. Their judges, though chosen annually, are, in
practice, appointed during good behavior. In this
state there has been no change of parties. But
176 LIFE OF NATHANIEL CHIP MAN.
should parties fluctuate as in Rhode Island, the same
fate would probably await their judges, unless the
spirit of party should be contracted by the steady
habits peculiar to the state of Connecticut. The fol-
lowing is the third section of the fifth article of the
constitution of Connecticut, adopted in the year 1818.
The judges of the supreme court of errors, of the
superior and inferior courts, and all justices of the
peace, shall be appointed by the general assembly, in
such manner as shall by law be prescribed. The
judges of the supreme court and of the superior court
shall hold their offices during good behavior ; but may
be removed by impeachment ; and the governor shall
also remove them on the address of two-thirds of the
members of each house of the general assembly.
All other judges and justices of the peace shall be
appointed annually. No judge or justice shall hold
his office after he shall arrive at the age of seventy
years.
New York Art. 24 (ordains) "That the chan-
cellor, the judges of the supreme court, and first judge
of the county court in every county, shall hold their
offices during good behavior, or until they shall
have respectively attained the age of sixty years."
They are removable only by impeachment. Adopted
1777.
New Jersey. — Art. 12. " The judges of the su-
preme court shall continue in office for seven years ;
the judges of the inferior court of common pleas, &c.
shall continue in office for five years." They are re-
movable only by impeachment. Adopted 1776.
Pennsylvania. — Art. 5, sec. 2. " The judges of the
LIFE OF NATHANIEL CHIPMAN. 177
supreme court, and of the several courts of common
pleas, shall hold their offices during good behavior.
But for any reasonable cause, which shall not be
sufficient ground for impeachment, the governor may
remove any of them on the address of two-thirds of
each branch of the legislature. Adopted 1790.
Delaware. — Art. 6, sec. 2. " The chancellor and
judges of the supreme court and the courts of com-
mon pleas, shall hold their offices during good beha-
vior. But for a reasonable cause, which shall not be
a sufficient ground for impeachment, the governor
may, in his discretion, remove any of them, on the
address of two-thirds of all the members of each
branch of the legislature." Adopted 1792.
Maryland. — Art. 49. " The chancellor, all judges,
&c. shall hold their commissions during good beha-
vior, removable only on conviction in a court of law."
Adopted 1776.
Virginia. — "... Judges of the supreme court of
appeals, judges in chancery, judges of admiralty, &c.
to be commissioned by the government, and continue
in office during good behavior, removable only by im-
peachment, except in a case of incapacity." Adopted
1776.
North Carolina. — Art. 13. "... Judges of the su-
preme courts of law and equity, judges of admiralty,
&c. to be commissioned, &c. and hold their offices
during good behavior, removable only by impeach-
ment." Adopted 1776.
South Carolina. — Art. 3, sec. 1. " The judiciary
power shall be vested in such superior and inferior
courts of law and equity, as the legislature shall, from
178 LIFE OF NATHANIEL CHIPMAN.
time to time, direct and establish. The judges of
eacli shall hold their commissions during good beha-
vior," removable only by impeachment. Art. 5, sec.
1. ''But no impeachment shall be made unless with
the concurrence of two-thirds of the house of repre-
sentatives. Adopted 1790.
Georgia. — Art. 3, sec. 1. " The judges of the su-
perior court shall be elected for the term of three
years, removable by the governor on the address of
two thirds of both houses, or by impeachment and
conviction thereon." Sec. 4. " Justices of the infe-
rior courts shall be appointed, &c. and hold their
commission during good behavior, or as long as they
respectively reside in the county for which they shall
be appointed," unless removed as in section first.
Adopted 1798.
Tennessee. — Art. 5. "... Shall appoint judges of
the several courts of law and equity, &:c. who shall
hold their respective offices during good behavior,"
removable only by impeachment. Adopted 1796.
Kentucky. — Art. 4. " The judges both of the su-
preme and inferior courts, shall hold their offices
during good behavior ; but for any reasonable cause,
which shall not be sufficient ground for impeachment,
the governor shall remove any of them on the address
of two-thirds of each house of the general assembly."
Adopted 1799.
Ohio. — Sec. 7. " The judges of the supreme court,
the presidents and the associate judges of the courts
of common pleas, shall be appointed, &c. and shall
hold their offices for the term of seven years, if so
long they behave well," removable only by impeach-
ment. Adopted 1802.
LIFE OF NATHANIEL CHIPMAN. 179
Louisiana. — The following is the 5th section of
the 4th article in the constitution of Louisiana : "The
judges, both of the supreme and inferior courts, shall
hold their offices during good behavior ; but, for any
reasonable cause, which shall not be sufficient ground
for impeachment, the governor shall remove any of
them on the address of three-fourths of each house
of the general assembly. Provided, however, that the
cause or causes for which such removal may be re-
quired, shall be stated at length in the address, and
inserted on the journal of each house."
On a review of the constitutions of the several
states it appears, that no state which has formed a
constitution, except Vermont, elects its judges annu-
ally.
That only two states elect their judges annually,
namely, Rhode Island and Connecticut.
That only three states elect their judges for a term
of years, namely, New Jersey, for seven years ; Geor-
gia (its supreme court) for three years, and Ohio for
seven years.
That eleven states elect their judges during good
behavior, namely, New Hampshire, Massachusetts,
New York, Pennsylvania, North Carolina, South
Carolina, Tennessee, Kentucky, Delaware, Mary-
land and Virginia.
That of these, only two limit the duration of office
by age, namely, New Hampshire to seventy, and
New York to sixty.
That in no state are the judges removable by the
address of a majority of both houses.
That in two states the governor, with the consent of
180 LIFE OF NATHANIEL CHIPMAN.
council, may remove upon the address of a majority,
namely, .Massachusetts and New Hampshire.
That in three states the governor may remove on
the address of two-thirds of both houses, namely, Penn-
sylvania, Delaware and Georgia.
That in one state the governor shall remove the
judges on the address of two-thirds of both houses,
namely, Kentucky.
That in five states the judges are removable only
on impeachment, Sec. New Jersey, Virginia (except
for incapacity,) North Carolina, South Carolina and
Tennessee.
That in one state they are removable only on con-
viction in a court of law, namely, Maryland. Spooner's
Vermont Journal.
Note 4.
Judge Jeffries. — He held his office durante bene
jjlacito, of the crown. " When his master abdi-
cated the throne his own security lay only in flight.
From the law, the law's worst assassin could expect
no protection. That he might escape unknown, he
shaved his eye-brows, put on a seaman's habit, and
all alone made the best of his way to Wapping, with
a design to take shipping for a foreign country. But
his countenance could not remain undiscovered under
all this disguise ; a man, whom, upon a trial, he had
frightened almost into convulsions, no sooner got
glimpse of it, than in a moment he recollected all the
terrors he had formerly felt. Notice was instantly
given to the mob, who rushed in upon him like a herd
of wolves. He was goaded on to the lord mayor ; the
LIFE OF NATHANIEL CHIPMAN. 181
lord mayor, seeing a man on whom he had never
looked without trembling, brought before him in this
situation, fell into fits, was carried to his bed, and
never rose from it. On his way to the tower, to
which he was committed, he saw threatening faces
on every side ; he saw whips and halters held up
around him, and cried out in an agony " for the Lord's
sake keep them off." I saw him, I heard him, says a
cotemporary historian, and without pity too ; though
without pity I never saw any other malefactor." 1
Even Jeffries might have been a good judge had
he held his office independent of the crown. The
English people felt the want of this independency in
their judges, and struggled for it until they, in a
measure, obtained their object. An act was passed
13 W. III. entitled " An act for the further limitation
of the crown, and better securing the rights and liber-
ties of the subject," in which provision is made that
the commissions of the judges shall be, not as for-
merly, " durante bene placito" but " quamdiu bene
se gesserint."
If Judge Jeffries was the law's worst assassin when
he held his office, during the pleasure of one despot,
what would he have been had he held his office for a
year, or during the pleasure of (Mr. Jefferson's) one
hundred and seventy-three despots ? ~ It is impossi-
ble to tell ; it is however, probable, that one hundred
and seventy-three despots would have kept him in
office as long as one did ; if he held his office for a
1 Guth. 1063.
* See page 3G, Mr. Jefferson's Notes, for his opinion of one hundred
and seventy-three despots.
23
182 LIFE OF NATHANIEL CHIPMAN.
year, he might have been reappointed, year after
year, notwithstanding all his oppression and cruelty.
It is a work of pleasure to quote on this subject
the writings of Mr. Jefferson. He says, in his Notes
on Virginia, page 117, that " Every species of gov-
ernment has its specific principles. Ours, perhaps,
are more peculiar than those of any other in the uni-
verse. It is a composition of the freest principles of
the English constitution, with others, derived from
natural right and natural reason." He meant to be
understood, that the provision, to hold the office of
judge quamdiu bene se gesserint, or daring good beha-
vior, is one of these first principles ; he therefore
introduced it into his draft of a constitution for the
people of Virginia. Let the people of Vermont adopt
the same principle.
Upon the propriety of fixing upon a certain age beyond
which a judge cannot constitutionally hold his office.
Judge Wilson, with much pleasantry remarks, that
" The duration assigned by nature to human life is
often complained of as very short ; that assigned to it
by some politicians is much shorter. For some po-
litical purposes, a man cannot breathe before he num-
bers thirty-five years ; as to other political purposes,
his breath is extinguished the moment he reaches
sixty. By the constitution of New York, "the chan-
cellor, the judges of the supreme court, and the first
judge of the county court in every county, hold their
offices until they shall have respectively attained the
age of sixty years."
How differently is the same object received, at
LIFE OF NATHANIEL CHIPMAN. 183
different times, and in different countries. In New
York, a man is deemed unfit for the first offices of the
state after he is sixty ; in Sparta, a man was deemed
unfit for the first offices of the state till he was sixty.
Till that age no one was entitled to a seat in the sen-
ate, the highest honor of the chief. How convenient
it would be, if a politician possessed the power, so
finely exercised by the most beautiful of poets ! Vir-
gil could, with the greatest ease imaginable, bring
iEneas and Dido together ; though in fact, some cen-
turies elapsed between the times in which they lived.
Why cannot some politician, by the same or some
similar enchanting art, produce an ancient and a
modern government as cotemporaries ? The effect
would be admirable. The moment that a gentleman
of sixty would be disqualified for retaining his seat as
a judge of New York, he would be qualified for
taking his seat as a senator of Sparta. 2 Wilsoti's
Works, 144.
Balance of Power.
" The true meaning of a balance of power," says
John Adams, " is best conceived by considering what
the nature of a balance is. It supposes three things ;
first, the part which is held, together with the hand
that holds it ; and then the two scales, with whatever
is weighed therein. In a state within itself, the bal-
ance must be held by a third hand, who is to deal
the remaining power, with the utmost exactness into
the several scales. The balance may be held by the
weakest, who, by his address, removing from either
scale, and adding his own, may keep the scales duly
184 LIFE OF NATHANIEL CHIPMAN.
poised ; when the balance is broken by mighty weights
falling into either scale, the power will never con-
tinue long, in equal division between the two re-
maining parties, but, till the balance is fixed anew,
will run entirely into one." Adams's Defence, vol. 1,
p. 100.
Let the people take care of the balance, and espe-
cially their part of it ; but the preservation of their
peculiar part of it will depend still upon the existence
and independence of the other two ; the instant the
other branches are destroyed, their own branch, tluir
own deputies become their tyrants. Ibid. 370.
Judge Wilson, treating of this subject, says, " though
the foregoing great powers — legislative, executive and
judicial — are all necessary to a good government, yet
it is of the last importance that each of them be pre-
served distinct and unmingled, in the exercise of
its separate powers, with either or with both of the
others. Here every degree of confusion in the plan
will produce a corresponding degree of interference,
opposition, or perplexity in its execution. Let us
suppose the legislative and executive powers united
in the same person ; can liberty or security be ex-
pected ? No. In the character of executive magis-
trate, he receives all the power, which, in the charac-
ter of legislator, he thinks proper to give. May he
not, then — and if he may, will he not, then — such
is the undefined and undefinable charm of power —
enact tyrannical laws to furnish himself an opportu-
nity of executing them in a tyrannical manner?
Liberty and security in government depend not on
the limits which the rulers may please to assign to the
LIFE OF NATHANIEL CHIPMAN. 185
exercise of their own powers, but on the boundaries,
within which their powers are circumscribed by the
constitution. He who is continually exposed to the
lash of oppression, as well as he who is immediately
under it, cannot be denominated free.
" Let us suppose the legislative and judicial powers
united, what would be the consequence ?
" The lives, liberties and properties of the citizens
would be committed to arbitrary judges, whose de-
cisions would, in effect, be dictated by their own pri-
vate passions, and would not be governed by any
fixed or known principles of law. For though, as
judges, they might be bound to observe those prin-
ciples, yet, Proteus-like, they might immediately as-
sume the form of legislators, and in that shape they
might escape from every fetter and obligation of
law.
" Let us suppose a union of the executive and judi-
cial powers ; this union might soon be an overbalance
for the legislative authority ; or if that expression is
too strong, it might certainly prevent or destroy the
proper and legitimate influence of that authority.
The laws might be eluded or perverted, and the ex-
ecution of them might become, in the hands of the
magistrate, or in his minions, an engine of tyranny
and injustice. Where and how is redress to be ob-
tained ? From the legislature ? They make new
laws to correct the mischief; but these new laws are
to be executed by the same persons, and will be exe-
cuted in the same manner as the former. Will re-
dress be found in the courts of justice ? In those
courts, the very persons who were guilty of the op-
186 LIFE OF NATHANIEL CHIPMAN.
pression in their administration, sit as judges to give
a sanction to their oppression by their decrees. No-
thing is more to be dreaded than maxims of law and
reasons of state blended together by judicial author-
ity. Among all the terrible instruments of arbitrary
power, decisions of courts, whetted, and guided and
impelled by considerations of policy, cut with the
keenest edge, and inflict the deepest and most deadly
wounds.
" Let us suppose, in the last place, all the three
powers of government to be united in the same man,
or body of men, miserable indeed would the case be !
This extent of misery, however, at least in Europe, is
seldom experienced ; because the power of judging
is generally exercised by a separate department. But
in Turkey, where all three powers are joined in the
Sultan's person, his slaves are crushed under the
insupportable burthen of oppression and tyranny. In
some of the governments of Italy, these three powers
are also united. In such there is less liberty than in
European monarchies ; and their governments are
obliged to have recourse to as violent measures to
support themselves as even that of the Turks. At
Venice, where an aristocracy, jealous and tyrannical,
absorbs every power, behold the state inquisitors, the
lion's mouth, at all times open for the secret accusa-
tions of spies and informers. In what a situation
must the wretched subjects be under such a govern-
ment, all the powers of which are leagued, in awful
combination, against the peace and tranquillity of
their minds.
" But, further ; each of the great powers of gov-
LIFE OF NATHANIEL CHIPMAN. 187
eminent should be independent as well as distinct.
When we say this it is necessary — since the subject
is of primary consequence in the science of govern-
ment — that our meaning be fully understood and ac-
curately defined. For this position, like every other,
has its limitations ; and it is important to ascertain
them.
" The independence of each power consists in this,
that its proceedings and the motives, views and prin-
ciples, which produce those proceedings, should be
free from the remotest influence, direct or indirect,
of either of the other two powers. But further than
this, the independency of each power ought not to
extend. Its proceedings should be formed without
restraint, but, when they are once formed, they should
be subject to control.
" We are now led to discover, that between these
three great powers of government there ought to be
a natural dependency as well as a mutual indepen-
dency. We have described their independency ; let
us now describe their dependency. It consists in this,
that the proceedings of each, when they come forth
into action and are ready to affect the whole, are
liable to be examined and controlled by one or both
of the others.
" So far are these different qualities of mutual de-
pendency and mutual independency from opposing or
destroying each other, that, without one, the other
could not exist. Wherever the independency of one,
or more than one, is lost, the mutual dependency of
the others is that moment lost likewise ; it is changed
into a constant dependency of that one part on two ;
or as the case may be, of those two parts on one.
188 i LIFE OF NATHANIEL CHIPMAN.
" An example may illustrate the foregoing propo-
sitions. They cannot be explained too fully. The
congress is intrusted with the legislative power of the
United States. In preparing bills, in debating them,
in passing them, in refusing to pass them, their reso-
lutions and proceedings should be uncontrolled and
uninfluenced. Here is the independency of the legis-
lative power. But after the proceedings of the legis-
lature are finished, so far as they depend on it, they
are sent to be examined, and are subject to a given
degree of control by the head of the executive de-
partment. Here is the dependency of the legislative
power. It is subject also to another given degree of
control by the judiciary department, whenever the
laws though in fact passed, are found to be contradic-
tory to the constitution.
" The salutary consequence of mutual dependency
of the great powers of government is, that if one
part should, at any time, usurp more power than the
constitution gives, or make an improper use of its
constitutional power, one or both the other parts may
correct the abuse, or may check the usurpation.
" The total disjunction of these powers would, in
the end, produce that very union against which it
seems to provide. The legislature would soon be-
come tyrannical, and would assume to itself the rights
of the executive and judicial powers.
" The important conclusion to be drawn from the
premises, which we have established is, that in gov-
ernment, the perfection of the whole depends on the
balance of the parts, and the balance of the parts
consists in the independent exercise of their separate
LIFE OF NATHANIEL CHIPMAN. 189
powers, and when their powers are separately exer-
cised, therein consists their mutal influence and opera-
tion on one another. Each part acts and is acted
upon, supports and is supported, regulates and is reg-
ulated by the rest.
" It might be supposed, that these powers, thus mu-
tually checked and controlled, would remain in a state
of inaction. But there is a ncessity for movement in
human affairs, and these powers are forced to move,
though still, to move in concert. They move, indeed,
in a line of direction somewhat different from that,
which each acting by itself, would have taken ; but at
the same time, in a line partaking of the natural
direction of each, and formed out of the natural
directions of the whole — the true line of public lib-
erty and happiness." Wilson's Works, 407-411.
Another eminent man, Thomas Jefferson, late pres-
ident of the United States, speaking of the old con-
stitution of Virginia, which had its three powers with-
out a balance, says,
" All the powers of government, legislative, execu-
tive and judiciary, result to the legislative body. The
concentrating these in the same hands is precisely the
definition of a despotic government. It will be no
alleviation that these powers will be exercised by a
plurality of hands, and not a single one. One hun-
dred and seventy-three despots would surely be as op-
pressive as one. Let those who doubt it turn their
eyes on the republic of Venice. As little will it avail
us that they are chosen by ourselves. An elective des-
jjoiism was not the government we fought for, but one
which should not only be founded on free principles,
24
190 LIFE OF NATHANIEL CHIPMAN.
but in which the powers of government should be so
divided and balanced among several bodies of majes-
tracy, as that no one could transcend their legal limits
without being effectually checked and restrained by
the others.
For this reason that convention, which passed the
ordinance of government, laid its foundation on this
basis, that the legislative, executive and judiciary de-
partments should be separate and distinct, so that no
person should exercise the powers of more than one
of them at the same time. But no barrier was pro-
vided between these several powers. The judiciary and
executive members were left dependent on the legisla-
tive for their subsistence in of ice, and some of them for
their continuance in it. If, therefore, the legislature
assumes executive and judiciary powers, no opposi-
tion is likely to be made ; nor, if made, can it be
effectual ; because in that case they may put their
proceedings into the form of an act of assembly,
which will render them obligatory on the other
branches. They have accordingly, in many instances,
decided rights which should have been left to judi-
ciary controversy; and the direction of the executive,
during the whole time of their session, is becoming
habitual and familiar. And this is done with no ill
intention. The views of the present members are
perfectly upright. When they are led out of their
regular province, it is by art in others, and inadver-
tence in themselves. And this will probably be the
case for some time to come. But it will not be a
very long time. Mankind soon learn to make inter-
ested uses of their right and power which they pos-
LIFE OF NATHANIEL CHIPMAN. 191
sess, or may assume. The public money and public
liberty, intended to have been deposited with three
branches of magistracy, but found inadvertently to be
in the hands of one only, will soon be discovered to
be sources of wealth and dominion to those who hold
them ; distinguished too by this tempting circum-
stance, that they are the instrument as well as the ob-
ject of acquisition. With money, we will get men,
said Caesar, and with men we will get money. Nor
should our assembly be deluded by the integrity of
their own purposes, and conclude that these unlimited
powers will never be abused, because themselves are
not disposed to abuse them." Notes on Virginia, 161,
162.
Mr. Jefferson, without intending it, has here given,
in anticipation, a striking description of the govern-
ment of Vermont, and furnished unanswerable argu-
ments in favor of the amendments.
When the convention, called to consider the pro-
posed amendments to the constitution, assembled,
they rejected them in gross without the least discus-
sion of their merits — they were blown off by the
spirit of party, as proposed amendments to the con-
stitution, in almost every instance, have been. The
council of censors are elected by a general ticket,
and if not all taken from the dominant party, they
are selected by that party ; and whatever amendments
such council may propose, will be received in an
unfavorable light by their political opponents. And
when the members of the convention assemble, their
discordant views in relation to amending the consti-
tution, cannot be reconciled by any compromise ; the
192 LIFE OF NATHANIEL CHIPMAN.
powers of the convention being restricted to the sim-
ple adoption or rejection of each article proposed,
without the least alteration.
Alter the amendment of the constitution, in the
year 183(j, by constituting a senate, Judge Chipman
wrote to his correspondent, who had given him an
account of the proceedings of the convention : — "I
fully agree with you as to the importance of the
amendment, adding a senate to the legislative depart-
ment of the government ; its beneficial effects as a
check on the rashness of legislation, will be more and
more apparent every year. I think it also a good
omen of other important amendments in future, espe-
cially one in relation to the tenure of judicial office,
and another, taking from the legislature the power of
appointment, and vesting it in a bound less liable to
a corrupt and corrupting influence.
Other amendments should be thought of; one con-
stituting a court of chancery distinct from a court of
law. I have long since learned in the school of ex-
perience, on whose teachings we may with more
safety rely than upon the most ingeniously constructed
theory, that there are insurmountable objections to
our present chancery system, all of which I cannot
detail in a letter. The most obvious to all judges,
and to all conversant with our judicial proceedings,
are, that the judge being compelled at the same term
to turn his attention to the trial of issues of fact and
issues of law, and to cases in chancery, a versatility
of talent is required, which no judge possesses. That
the principal business, at every term, is the trial of
cases at law, the consequence is that no system of
LIFE OF NATHANIEL CHIPMAN. 193
practice has been settled, and probable never can be
settled, to prevent suits in chancery from being passed
over and postponed from term to term, occasioning
unreasonable delay and ruinous expense to the suit-
ors. I confess I was never able to devise any ade-
quate remedy for these evils under our present chan-
cery system.
Another amendment might be thought of relating
to the local affairs and police of the counties, which
are now committed to the county courts, with insuffi-
cient and not very definite powers. I think this does
not well assort with our political institutions. The
towns are organized with sufficient powers to man-
age their own local concerns. A board of super-
visors in each county to be elected by the people of
the several towns, with sufficient powers to regulate
and order the local affairs and interests of the coun-
ties, might be very properly interposed between the
towns and the general government of the state. It
will be seen at a glance, that there are many local
concerns of the counties that might be better man-
aged by such a board than by the legislature, and
more in consistence with the principles and form of
our government than by the county court. It is un-
necessary to enter into details. These two amend-
ments are of less importance, because the legislature
may erect a court of chancery, and establish a system
of police for the counties, under the existing consti-
tution. Yet a court of chancery, and a system of po-
lice for the counties should be rendered more stable
than they can be by acts of legislation. The two
former amendments relating to the tenure of judicial
194 LIFE OF NATHANIEL CHIPMAN.
office, and the power of appointment, are of very
great importance, and ought to be kept constantly in
view of the people by repeated but calm and candid
discussion. Perhaps, if indolence does not prevent,
I may hereafter send you some speculations on the
subject. But I fear the attention of the people can-
not be turned from the interest of party to the inter-
est of the state." He soon after found this to be the
case, and paid no further attention to the subject.
On the 20th of December, 1 342, he wrote to his
correspondent : — "I am glad that you have under-
taken an examination of the last article in our con-
stitution, providing for the election of a council of
censors, periodically, at the expiration of every term
of seven years, vested with certain powers, and
among others, that of proposing amendments to the
constitution, and calling a convention to act on their
specific propositions. As to their censorial powers,
I have always considered them a mere nose of wax,
and the impropriety, not to say absurdity, of the pro-
vision, which compels the representatives of the peo-
ple, in convention, to work in trammels, confining
them to the adoption or rejection of each article pro-
posed, without the least alteration, is very apparent.
I wish I could write you more fully on this subject,
but I have so nearly lost my eye-sight that writing,
as you will perceive by this, has become extremely
difficult."
CHAPTER IX.
Elected Chief Justice in October, 1813 — Displaced in 1815 — His Judi-
cial Character.
In October, 1813, Mr. Chipman was again elected
chief justice of the supreme court, and continued in
the office until October, 1815, when, by reason of our
annual election of the judges, and by a change of par-
ties, he and the associate judges were displaced.
Many of the most important cases decided by the
supreme court, while he was chief justice, were re-
ported by him, and some years after, were published
in D. Chipman's Reports.
In portraying the character of Nathaniel Chipman,
I have already shown that his intellectual and moral
qualities peculiarly fitted him for the office of judge.
Yet he so nearly realized what he said in a playful
manner to his classmate, Mr. Fitch, that he should
become the oracle of law to the state of Vermont, it
seems proper, and may be useful to state the manner
in which he presided as chief justice, and more par-
ticularly the causes which operated to render him so
distinguished as a judge.
The popularity which he acquired arose from, and
followed, the performance of his judicial duties. Such
was his manner of presiding, and such his intercourse
196 LIFE OF NATHANIEL CHIPMAN.
with his fellow-citizens, that all classes of men felt
quite certain that he never said or did anything for
the purpose of acquiring popularity. An eminent
jurist remarks — "He never put himself forward as a
candidate for office, hut when he was advanced to
any public station, it seemed to arise from the gen-
eral sense of the community, that his talents were
wanted in the station to which he was advanced.
Although on a change of parties, in the year 1813,
the federalists had a majority of only one or two in
joint ballot, and although party spirit was never more
excited or more proscriptive, he was elected chief
justice by a majority of seventeen.
" I was in considerable practice during the differ-
ent times that Nathaniel Chipman was chief justice,
and I can truly say, that in times of the greatest party
excitement, I never heard an intimation, nor even a
whisper, expressing a doubt as to the talents, inde-
pendence, and impartiality of Judge Chipman. When-
ever he presided, he seemed to inspire the profession
and the community with the most unlimited confi-
dence. He governed the court with the greatest
ease ; his presence on the bench appeared sufficient
to preserve the most perfect order in court. Every
one, both counsel and parties, had the fullest confi-
dence that every case would be decided according to
law and the justice of the case, and his decisions
seldom failed of giving entire satisfaction to all con-
cerned, lie had a peculiar faculty in charging the
jury ; while he retained all questions of law strictly
under the control of the court, he was careful not to
intrench on the province of the jury, as to the finding
LIFE OF NATHANIEL CHIPMAN. 197
of the facts in the case. His course was, to give a
summary of the testimony of each witness, and instruct
the jury as to the point in the case to which each part
of the testimony was to be applied. Then to state
the situation, circumstances, and manner of testifying
of each witness, what circumstances militated against,
and what corroborated the testimony, in such a man-
ner as to leave the entire question of fact to the jury ;
in this manner he seldom failed of leading the jury to
a satisfactory verdict. His treatment of the members
of the bar was such as to promote in them, high and
honorable views of the profession and practice of
law. He had a happy talent of adapting the law to
the justice of the case, so that it was seldom neces-
sary to apply to the equity side of the court." 1
At four different times he left his practice, and took
a seat upon the bench ; and in every case he put off
the manner of the advocate, and assumed that of the
judge, and, of course, never argued the case in charg-
ing the jury ; but made a statement of the evidence
as above related, with a statement of the principles
of law involved in the case. And from his habitual
regard for truth, he did it in such manner as to satisfy
all who heard him, that it was done with perfect im-
partiality. He used to remark, that he never dared
to argue a case in charging the jury, for if he did, the
jury would undertake to argue it also, and in their
view, their own arguments would outweigh his. He
had such a detestation of fraud or oppression, and
even of anything unfair or dishonorable in the party
1 Hon. Charles Marsh.
25
198 LIFE OF NATHANIEL CHIPMAN.
or his counsel, that when viewed with his habitual
care and caution, the facts appeared clear and un-
doubted, lie was sure to animadvert upon the con-
duct of the person implicated, in open court, but
never with severity in the manner of doing it. All
experience has shown that this practice has a very
salutary effect on the community. But it is not every
judge who can pursue this course, with safety to him-
self or with any good effect on those who hear him.
It is necessary that he have a clear, discriminating
mind ; that he be cautious in forming his opinions ;
that he be entirely free from all prejudice, and that he
be conscious that he is so. Sometimes an unfortunate
manner of presiding will prevent a judge from pursu-
ing this course with any good effect — but this is sel-
dom the case ; for if he have every other qualifica-
tion, his manner will soon be overlooked.
In a certain case before the court, a motion was
made for a continuance ; on a hearing, it appeared
that the counsel making the motion had resorted to a
number of tricks and cunning contrivances to obtain
the continuance ; at the close of the arguments, the
judge simply remarked, " It has been said, and all ex-
perience has verified the truth of the observation,
that there is nothing so silly as cunning — the cause
cannot be continued."
On the trial of an action of ejectment before the
court, the plaintiff relied on a deed of the land in
question, from the defendant. The defendant's coun-
sel objected to the admission of the deed in evidence,
for that one of the two subscribing witnesses to the
deed was the wife of the grantor ; upon which Judge
LIFE OF NATHANIEL CHIPMAN. 199
Chipman addressed the defendant's counsel, saying,
" If this is your only defence, your client ought to be
advised to make out a new and proper deed without
hesitation." Accordingly the defence was at once
abandoned.
No popular excitement, no excitement at the bar,
could ever disturb him, but he was at all times, and
under all circumstances, equally cool, deliberate and
patient. It seemed that his mind could never be
diverted from the subject under examination. Many
causes had operated to produce these qualities both
moral and intellectual, which so preeminently quali-
fied him for the performance of his judicial duties.
As we have before remarked, he had a most abiding
sense of his accountability to the Supreme Being,
always insisting that there was no other foundation
for moral obligation. A conscientious regard for
truth thence resulting, afforded him essential aid in
the cultivation of his intellectual faculties; for it is
not only an important stimulus in the pursuit of it,
but is a protection against false reasoning.
It has been said, that " the study of the dead lan-
guages is highly beneficial, as it cultivates a habit of
patience, of attention, of acuteness and discrimina-
tion." The truth of this is verified as far as it can be
verified by one striking instance, in which all those
mental qualities and habits have followed an habitual
attention to the dead languages. He was shielded
against prejudice in making his decisions, as well by
his acute and discriminating mind, as by his habitual
regard for truth and justice. He so clearly discerned
a difference between the right and wrong side of a
200 LIFE OF NATHANIEL CHIPMAN.
cause, and derived so high a degree of pleasure from
the investigation of a case, and the formation of a
just and satisfactory decision, that he seemed to lose
sight of the parties, and everything extraneous.
Whereas a judge, who, for want of clear perception,
can perceive no distinction between the right and
wrong side of a case is influenced in making his de-
cision by the slightest prejudice. True, a man of
ordinary powers of mind, if he be undisturbed by his
passions, so that he can make the best use of his
faculties, and if he have also a strong sense of justice,
may become a useful and respectable judge, but he
can never be a Mansfield or a Marshall.
We have seen that Judge Chipman was early in
life distinguished for his untiring industry in the acqui-
sition of general knowledge. When he entered up-
on his professional studies, he was equally industrious
and equally successful, and his legal learning became
deep and extensive. But his attention was not con-
fined to legal science ; it extended to the whole circle
of the arts and sciences ; to all the various trades
and occupations of men. And many citizens, trades-
men and manufacturers, have expressed their sur-
prise that his knowledge of the various branches of
business was so minute, that it seemed to be practical
as well as theoretical. President Dwight remarked,
that he fell in company with him not many years after
he entered upon the business of his profession, and
calculating that he would feel more at home in con-
versing upon legal science, introduced that subject ;
but before they parted, he found that his knowledge
embraced all the sciences, and that in conversing
LIFE OF NATHANIEL CHIPMAN. 201
upon theology he appeared perfectly at home. This
general knowledge which he had acquired was highly
useful to him as a jurist. His memory was remarka-
bly retentive. Whenever he acquired a knowledge
of important principles, or facts in themselves import-
ant, it appeared that they never escaped his recollec-
tion, but were laid up in perfect order, always ready
for use.
That which he acquired from books he made so
perfectly his own, that it appeared not to have been
acquired and retained in memory, but to be the re-
sult of his own investigations. In conversation upon
legal subjects, he seldom referred to authorities, but
drew upon his knowledge of the whole system of
law ; and applied the legal principles to any case
with the greatest ease. Yet as a judge, he had such
a veneration for that system of jurisprudence which
had been settled, and he was so strongly impressed
with the necessity of adhering to it as a system, that
no judge was ever more careful to adhere to the prin-
ciples settled by decided cases.
During the time that he was last chief justice, he
found that the court had previously put a construc-
tion upon certain statutes, which did not accord with
his views ; yet he felt himself bound by former de-
cisions. In an action of ejectment, one of the par-
ties rested on a title derived from a vendue sale for
the collection of a road tax. The opposite party
contended that the vendue title was void, the direc-
tions of the statute not having been pursued, and
cited a case which fully supported his position. The
judge, after a careful examination of the statute, re-
202 LIFE OF NATHANIEL CHIPMAN.
marked, "Were it a new case I might take a different
view of it, but a judicial construction has been put
upon the statute by a prior decision, which ought
not to be set aside, especially as it relates to the title
of real estate, to alter the law by giving a different
construction to the statute, might do the greatest
injustice."
Yet if on a careful examination of a decided case,
he considered that the settled principles of law had
been violated, he did not hesitate to deny its authority
as a precedent. In delivering his opinion in the case
of Rhodes v. Peisley, decided by the supreme court in
the year 1791, he denied the authority of the case of
Moses v. McFarlan, 2 Burr. 1005, going no further
into an examination of it than the case under con-
sideration required. He stated and commented upon
the case as follows : " Moses indorsed four notes to
McFarlan under a special agreement in writing, that
McFarlan should indemnify him against all the con-
sequences of such indorsement. McFarlan brought
his actions on the several indorsements against Moses
before the court of conscience, an inferior court of
limited jurisdiction. The court refused to hear evi-
dence of the agreement, and rendered judgment in
each of the four cases against Moses. Moses there-
upon paid the amount of the judgments, and brought
his action for money had and received against Mc-
Farlan, to recover back the money which had been
so unjustly received, and it was solemnly decided that
the action will lie. This is to say, that the indorser
is holdcn, and he is not holden. The evidence which
could not be admitted to save him from an unjust pay-
LIFE OF NATHANIEL CHIPMAN. 203
ment, could be admitted and was deemed amply suffi-
cient in another action to recover back the identical
money." This, it is believed, was the first time that
the authority of the case Moses v. McFarlan was
questioned by any court in Great Britain or in the
United States. Four years afterwards, in the year
1795, Lord Chief Justice Eyre, in delivering his opin-
ion in the case of Phillips v. Hunter, 2 H.B. 402,
commented upon the case, Moses v. McFarlan, say-
ing, among other things, " In that case, I think the
agreement was a good defence in the court of con-
science ; but if it were otherwise, the recovery there
was a breach of the agreement upon which an ac-
tion lay, and was, in my judgment, the only remedy.
Shall the same judgment create a duty for the recoverer,
upon ivhich he may have debt, and a duty against him
upon which an action for money had and received icill
lie f " It is very certain that there could have been
no communication between these two judges ; this
renders the coincidence of thought and reasoning very
striking.
CHAPTER X.
Appointed Professor of Law in Middlebury College — Delivered a comse
of Lectures — His Work on Government — Adventures of his son Ed-
win — Sickness and Death — Conclusion.
In the year 1816, Mr. Chipman was appointed pro-
fessor of law in Middlebury College, and the year fol-
lowing delivered a course of lectures, which attracted
considerable attention at the time, but they were
never published. Some of these, most interesting to
the general reader, will be found in the Appendix,
Nos. II. III. IV. and V.
I also find among his papers a manuscript pam-
phlet, entitled, " Observations on Mr. Calhoun's Ex-
pose of his Nullification Doctrines, containing an ac-
count of the origin of the two great political parties,
federal and anti-federal, with an impartial history of
these parties, and as it also contains a very clear refu-
tation of Mr. Calhoun's arguments or positive asser-
tions, it cannot but be useful. I therefore give it a
place in the Appendix, No. VI.
In the year 1833, he published a work on govern-
ment, entitled, " Principles of Government," a trea-
tise on free institutions, including the constitution of
the United States.
LIFE OF NATHANIEL CHIPMAN. 205
From the following preface to the work, the reader
will learn the design of the author, and something of
the manner in which he has treated the subject.
" The subject of government has employed the pens
of the first philosophers of every age, from the time
of Plato and Aristotle to the present day. To them
the world are much indebted, especially to some of
the moderns. None of them, however, as far as re-
collection serves, have attempted, or at least, have
succeeded in an investigation of first principles ; in
analyzing the social nature of man, and deducing
from the relations thence resulting, the principles that
ought to be pursued in the formation of civil insti-
tutions ; and yet it is believed, this is the only cer-
tain ground of investigation, the only mode in which
any general, consistent, and practical principles in
the science of government can be established. The
greater number of those who have written on this sub-
ject have employed themselves in illustrating and re-
commending the principles and form of some govern-
ment, for which they had conceived a predilection ;
while others, in their theories, have consulted the
imagination rather than the understanding. It will,
therefore, be readily perceived that the theories and
principles of neither class of these writers can be of
general, much less of universal application ; that they
cannot be applied, at least, indiscriminately, to gov-
ernments of different construction, and embracing
different, and, in many respects, opposite principles.
Such are the civil and political institutions of these
United States ; they differ in^rinciples and construc-
tion very essentially from all that have preceded thern.
26
206 LIFE OF NATHANIEL CHIPMAN.
The author convinced of that difference of principles
and the excellence of our institutions, owing chiefly
to that difference, published as early as the year 1793,
a small work, entitled, ' Sketches of the Principles
of Government; with a view of briefly illustrating
the Principles on which they are founded.' That
little work, which was well received at the time, has
long been out of print.
" The author had entertained a design, as no trea-
tise had appeared fully embracing the subject, of pub-
lishing a revised edition of that work ; but on a review,
he found it too limited in its plan, as well as deficient
in arrangement. He therefore resolved to new-cast
the whole, to enlarge the plan, to give it a more regu-
lar and scientific arrangement, and, as far as he was
capable, to make it an elementary treatise on that
kind of government which has been adopted in these
United States. In the execution of this task, although
the work consists principally of new and additional
matter, the author has, in several instances, admitted
portions of his former work, with such corrections as
were suggested by a long course of observations and
experience.
" He has enjoyed many advantages favorable to the
accomplishment of his design ; he has been an atten-
tive observer of passing events, and not un frequently
an actor in the political scenes that have occurred in
a period of more than half a century, commencing
with the controversy between the states (then colo-
nies,) and the mother country, which eventuated in
their independence, and, finally, in the establishment
of the present government on the true principles of
LIFE OF NATHANIEL CHIPMAN. 207
freedom — a period agitated and occupied with revo-
lutions and revolutionary movements, which have ex-
tended, with various effects, to all the civilized nations
of Europe, and the whole of the American continent,
and which have produced a more thorough investiga-
tion and discussion of the social and individual rights
of man, and the nature and principles of free govern-
ments, than is to be found in any other age, indeed,
than in all preceding ages within the reach of history.
With what success the work has been executed must
be left to the decision of the public. Such a work
adapted to the civil and political institutions of the
country has been hitherto a desideratum, which it was
the author's ambition to supply. If, however, he has
failed in this, it will be a sufficient consolation, should
what he has attempted excite some writer of more
leisure, and of a higher order of talents, to accom-
plish the task, although now at the advanced age of
fourscore, he can hardly expect, personally, to enjoy
that consolation.
" The author has, throughout the whole, endeavored
at the investigation of natural principles, and to fol-
low truth wherever it led ; he has several times been
induced to differ from the opinions of some writers of
the first talents and reputation.
" Although he has examined these opinions with the
freedom of philosophical discussion, it has been his
constant aim to treat the writers with that decent re-
spect which they merit from every lover of science.
" As to the manner and style of the work, if it should
be thought that they savor of former times, the apo-
logy is, that the author himself more properly belongs
to an age that is now past."
208 LIFE OF NATHANIEL CHIPMAN.
The author has, in a very lucid manner, accom-
plished what he proposed in the preface. He has
analyzed the moral and social nature of man, and
thence deduced the principles which lie at the foun-
dation of our free institutions. It seems, therefore,
that the work is a proper foundation for instruction in
the science of free government.
He had several years before left his practice at the
bar, and declined all public business on account of
his increased deafness, living in retirement, undis-
turbed in the exercise of his intellectual powers. I
find by his papers, that he had turned his attention to
various branches of science, but prepared nothing for
publication, except on the science of law and gov-
ernment.
Nathaniel Chipman married Sarah Hill, of Tin-
mouth, by whom he had five sons and two daughters.
His eldest daughter, Laura, married Dr. John Brown-
son, who settled in Western New York, where he
died some years since, and where his widow and
children now reside. His youngest daughter, Evelina,
is unmarried.
His eldest son, Henry Chipman, was educated at
Middlebury College, and maintained a high standing
as a scholar. He afterwards studied law with Charles
Cotesworth Pinckney, of Charleston, South Carolina,
and settled in Waterborough, in that state, in the prac-
tice of law, where he married and resided a number
of years. At length, being disgusted with slavery, and
as his wife, although the daughter of a planter, and
accustomed to slavery from her infancy, was de-
sirous to live in a free state, where they should not
LIFE OF NATHANIEL CHIPMAN. 209
be compelled to employ slaves, he moved to Detrpit,
in the then territory of Michigan. He was soon after
appointed a judge of the United States court for that
territory, and is now a judge of the municipal court
in Detroit. Jeffrey Chipman, his second son, re-
ceived an academic education, married and settled in
Canandaigua, in the state of New York, where he
still resides. Edwin Chipman, his third son, studied
law with his brother Henry, in South Carolina, was
admitted to the bar, and commenced practice in con-
nection with his brother. But he soon relinquished
the practice, and undertook to erect mills on a stream
in the vicinity of Waterborough. Being nearly desti-
tute of capital, he soon found himself embarrassed
with debts, which he was wholly unable to pay.
While in this situation he was all at once missing,
and under circumstances which rendered it extremely
doubtful whether he had absconded, or had been
drowned in the stream on which he had been erecting
mills. But year after year having passed away, and
nothing heard from Edwin, either by his father or
any of his relatives, his father became satisfied that
he was not living, and gave him up as lost, until Oc-
tober, 1838, when the postmaster in Rutland, Ver-
mont, received the following letter :
Wetumpka, Coosa County, Alabama, August 10, 1838.
Sir, — Not having the pleasure of your acquaint-
ance, or even of knowing your name, I can address
you only by your official appellation on a subject
which intimately concerns another individual. The
object of the application is to obtain precise informa-
210 LIFE OF NATHANIEL CHIPMAN.
tion respecting the Honorable Nathaniel Chipman.
As the family was of some distinction, it is probable
you can, without much trouble, ascertain their present
situation, and where the different members of the
family reside, and whatever you may learn interesting
to a near relative. It is probable that Judge Chip-
man and Mrs. Chipman are both numbered with the
dead ; for, if living, they must have reached a very
advanced age. As Judge Chipman once resided in
Rutland, and not far from that place when the indi-
vidual referred to was last heard from, it is proba-
ble that a person in your situation may know some
member of the family, or give such information as
will enable the person interested to correspond with
him by letter. By making the necessary inquiries,
and communicating the resulting information to me
at Wetumpka, Coosa county, Alabama, you will con-
fer a pecular favor on the individual at whose request
I trouble you with this communication.
John R. Steele.
Postmaster, Rutland, Vermont.
P. S. As I may be from home when your letter
shall reach Wetumpka, please direct to John R.
Steele, care of Col. Edward Cullen, Wetumpka,
via Augusta, Georgia, and Montgomery, Alabama.
J. R. Steele.
The foregoing letter was, by the postmaster, put
into the hands of the late Colonel Gove, of Rutland,
who. suspecting that it was written by the lost son,
Edwin, immediately wrote agreeably to the request of
John EL Steele, stating such fncts in relation to Judge
LIFE OF NATHANIEL CHIPMAN. 211
Chipman and his family, as then occurred to him. A
few days after this, Judge Chipman was at Rutland,
and on reading the letter from John R. Steele, was
satisfied that Edwin yet lived, and wrote the letter ;
and immediately wrote to John R. Steele, giving the
desired information relating to himself and family;
carefully avoiding anything which might disclose the
suspicion that he was writing to his son Edwin. This
letter, with that written by Colonel Gove, were both
delivered, at the same time, by the postmaster, and
Edwin wrote an answer to the letter from Colonel
Gove, who forwarded it to Judge Chipman, and one
week afterwards, and after the high degree of excite-
ment had subsided, which had been produced by the
intelligence that his father lived and enjoyed a re-
markable degree of health for a man of his age, and
by direct intelligence from his loved native village,
rendered more dear to him by his long exclusion from
it, and by a total want of intelligence from it for so
many years, — he wrote the following letter to his
father.
Wetumpka, Coosa County, Ala., Oct. 10, 1838.
Dear Father — On the third instant, at the post-
office in this place, two letters from Vermont were
handed to me, one from yourself, the other from Jesse
Gove, Esq., in answer to a letter addressed to the
postmaster at Rutland, in the name of John R. Steele.
My feelings cannot be described, when at the sight of
the superscription of one of the letters, I recognized
the hand-writing of my father, who I had believed was
not living. Your letter gave me the only intelligence
which I have had from any of my relatives, since I
212 LIFE OF NATHANIEL CHIPMAN.
left South Carolina, in 1822. I did, indeed, hear in-
directly, that you were about to move to the territory
of Michigan. Brother Henry, I knew, had deter-
mined on moving to the north, without having, when
he left Carolina, on his second northern tour, fixed
on any particular location, so that I knew not where
to address any individual of my family. Some few
years after I left Carolina, I heard that brother Henry
was in the practice of law, at Charleston, in com-
pany with a Mr. Duncan, and I addressed a letter to
him at that place ; and receiving no answer, I wrote
to the postmaster at Charleston, but he took no
notice of the letter. I then wrote to the postmaster
at Middlebury, hoping that uncle Daniel Chipman, or
some of his family might then reside there, and that
through that channel I might be enabled to corres-
pond with some of my own family ; but I received no
answer to this letter, and all my attempts to open a
correspondence with some of my family having proved
fruitless, and thinking that in all human probability
my parents were not living, I made no further at-
tempts for several years to open a correspondence
with them. But at length reflecting that our ances-
tors were somewhat noted for their longevity, I dwelt
upon that fact until it produced a considerable degree
of confidence that my parents were still living, and 1
determined to make one more effort to open a cor-
respondence with them, and I have great reason to
be thankful that I have been successful. I presume
you know the circumstances under which 1 left the
vicinity of Waterborough, in South Carolina. I
started without a cent of money — my horse, saddle
LIFE OF NATHANIEL CHIPMAN. 213
and bridle, and wearing apparel, were my all. I rode
seventy-five miles in twenty-four hours. 1 stopped
in Barnwell district, and worked at the blacksmith's
trade, as a journeyman, one year. I worked in that
district and in Hamburgh, and in Augusta, Georgia,
about four years. I taught school in Barnwell one
year, during which year I married a Miss Thomson,
by whom I have had five children, four of whom are
living. Soon after my marriage, I removed to Mont-
gomery county, Alabama, and carried on the black-
smith's business, realizing a handsome profit. I also
made some money by speculating in prairie lands.
But the delicate health of my wife, and several years
sickness suffered by myself, compelled me to sell my
property to pay my debts. In the year 1836, I left
my family in Montgomery county, and went to Coosa
county in the Creek country, with a stock of goods to
trade with the Indian and white settlers. After a few
months the Indians became troublesome, and meas-
ures were taken to protect the settlers. The Mont-
gomery regiment was called out, in which I held a
commission of lieutenant colonel — and had the com-
mand of the forces until the Indians were subdued,
when I moved my family to Coosa county, where I
now reside. During the last two or three years 1
have accumulated considerable property, but the mo-
ney pressure has rendered it difficult to close my bu-
siness without a sacrifice. Still I hope to get through
without much loss. 1 am at present engaged on the
railroad between the Chatahoochy river at West point,
and the Alabama at Montgomery, and am located, at
214 LIFE OF NATHANIEL CHIPMAN.
present, near Fort Decatur, on the Talapoosa river,
in Macon county.
You say that my dear mother has been dead seven
years. My mind has long been prepared for the sad
tidings, but the reflection that her days had been
embittered by my mysterious absence, and the uncer-
tainty of my fate, has lain heavily on my mind. I
will not undertake to describe my sufferings whenever
I have realized the intensity of her parental affection,
and that her mind was somewhat inclined to melan-
choly foreboding.
Mr. Gove writes that Dr. Brownson is dead, and
that Laura is keeping house with her children in Wes-
tern New York. Do write particularly respecting all
my brothers and sisters and their children, as far as
your knowledge of them extends, and remember me
affectionately to them all. I have four children living.
Theodore, ten years of age ; Oscar, eight ; Evelina,
five, and Edwin Chipman Cullen, aged two years —
all healthy and promising. When I left Colleton dis-
trict, in South Carolina, I adopted the name of Ed-
ward Cullen, and am known by no other name in
Alabama. The object of adopting that name, and
working at the blacksmith's trade, was to prevent the
possibility of discovery. No letter can reach me un-
less directed to that name, Wetumpka, Coosa Co.,
Alabama. It has always been my intention, as soon
as I could acquire the means, to pay off all demands
against me, to resume the name of Edwin Chipman
by legislative enactment, which would be necessary
to legalize my land titles.
Your affectionate son,
Kdw \i:d ( Yi.u.n.
LIFE OF NATHANIEL CHIPMAN. 215
Nathaniel Chipman had a strong constitution, and
although considerably impaired by an intense applica-
tion to his studies and a want of exercise during his col-
legiate course, a more active life in the army restored it.
During the whole of his after-life, he was blessed with
a vigorous constitution and a continued state of health,
interrupted only by occasional attacks of the rheuma-
tism, by which he suffered until about seventy years
of age, when, as he remarked, while I was suffering
under a severe attack of that complaint, that he had
outgrown, or rather outlived his rheumatism, and it
might be the case with me. During the remainder
of his life he enjoyed a remarkably uniform state of
health until his last sickness. On the 13th of Febru-
ary, 1843, he was violently attacked with a conges-
tion and inflammation of the lungs, which put a
period to his existence on the fifteenth of the same
month, being in the ninety-first year of his age.
Dr. Clarke, the attending physician, remarks, " that
he was greatly distressed for breath ; the most part
of the time unable to speak, and at times appeared to
be deprived of his reason ; yet, at intervals, when he
appeared conscious of his situation, the mind of Judge
Chipman showed itself in all its native placidity and
calmness."
Having, in the preceding pages, portrayed the
character of Nathaniel Chipman as a public man,
and in doing so, set forth his qualities, both intellect-
ual and moral, by which he was enabled to fill the
various public stations in which he was placed, with
so much honor to himself and usefulness to his coun-
216 LIFE OF NATHANIEL CHIPMAN.
try, I shall conclude with a few brief remarks respect-
ing his temper and disposition, which contributed so
much to his happiness through a long life. His pas-
sioDS were naturally strong, as is too often the case
with men of a high order of intellect, but very early
in life he so perfectly subdued them, that they never
thereafter gave him the least disturbance. He was
never known to harbor a spirit of revenge or ill-will
against any human being. He used to remark that it
was very singular that so small a portion of men could
ever learn that a spirit of revenge and hatred of oth-
ers, only rendered themselves unhappy. The good-
ness of the Creator, he said, was most clearly mani-
fest, by his having so constituted man that he was not
necessarily made unhappy by the enmity of others.
Were it so his happiness would depend not on his own
good disposition, but on the disposition of others, over
which he has no control. But the benevolent Creator
has placed it in the power of each individual to cherish
feelings of benevolence and good-will towards even
his enemies, and so never be rendered unhappy by
their enmity. Although most distinguished for his
intellectual powers, and the fund of general know-
ledge which he had acquired, yet he had also a vein
of wit and humor, which rendered him a pleasant as
well as instructive companion. He was also a man
of very tender feelings, and deeply sympathized with
the afflicted. In answer to a letter which I wrote him
in October, 1810, giving him information of the loss
of our daughter Mary, he wrote, "We had been in-
formed by Susan Stowell, who was here on a visit last
week, of the death of your daughter Mary. In this
LIFE OF NATHANIEL CHIPMAN. 217
affliction I sincerely sympathize with you and her
mother. I have, in the course of my life, lost three
children, but all in infancy. I feel that this is very
different from the loss of a child in the bloom of life,
and the subject of a long and cherished affection. I
was much concerned for the effect that this sudden
loss might have on you, as well as her mother, in
your feeble state of health, but am happy to learn that
you endure the affliction with a becoming degree of
fortitude and resignation."
In answer to a letter which I wrote him in March,
1841, giving an account of the death of our eldest
daughter, Mrs. Linsley, he wrote, — "I received your
account of the loss of a second beloved daughter, in
the course of a few months, with deep sympathy. I
feel it not the less sensibly from a recent dispensation
of Providence, in my own family. I had just received
information of the death of my son Edwin, so long
lost, and lately found — as it were, restored from the
dead. I had been induced to believe that he was no
longer living from his long silence, having received
no answer to three letters which I had written him
since September, 1 839. About the first of last month
I received information from a gentleman who lived
not far from Edwin's residence, that he came to his
death about fourteen months before, being caught and
instantly killed by a machine which he had invented,
and with which he was levelling timbers on a railroad.
Though the event was expected, the unexpected man-
ner of his death gave poignancy to the effect on my
mind. But I have long since learned to submit with-
out a murmur to the dispensations of Providence, be-
213 LIFE OF NATHANIEL CH1PMAN.
lieving that they are all in mercy, however it may
Feem to us in the moment of bereavement." This was
not with a mere compliance with customary forms —
possibly he too often disregarded customary forms —
but it was written from a most abiding sense of a su-
perintending Providence, and of his accountability for
all his thoughts and all his actions, and as he habitu-
ally pursued the dictates of an enlightened conscience
he never had occasion to conceal his sentiments —
he never learned how to put on any disguise, but al-
ways expressed his sentiments openly and frankly.
How different from many of the present political gen-
eration !
APPENDIX.
No. 1.
A DISSEBTATION
ON THE ACT
ADOPTING THE COMMON AND STATUTE LAWS
OF ENGLAND.
28
DISSERTATION.
The reasons for passing this act are contained in the fol-
lowing preamble.
" Whereas it is impossible, at once, to provide particular
statutes, applicable to all cases wherein law may be neces-
sary for the happy government of this people : And whereas
the inhabitants of this state have been habituated to conform
their manners to the English laws, and hold their real estates
by English tenures."
By the first section it is enacted, " That so much of the
common law of England as is not repugnant to the constitu-
tion, or to any act of the legislature of this state, be, and is
hereby adopted, and shall be, and continue to be, law within
this state."
By the common law of England, exclusive of positive
laws enacted by statute, are understood those rules and
maxims, by which decisions are made in their courts of law,
whether in relation to the mode of prosecuting a right, or to
the right itself—, rules and maxims, which have been there
adopted, " time whereof the memory of man runneth not to
the contrary." For a knowledge of the common law of
224 APPENDIX.
England we must have recourse to 1 lie history of their law
proceedings, handed down In almosl innumerable volumes
of reports, and to the writings of the sages of their law.
The foregoing statute, adopting the common taw of Eng-
land, in this stale has rendered a knowledge of that law in-
dispensable in our courts. This statute expressly limits the
adoption of the common law, to so much as is not repug-
nant to the constitution, or any act of the legislature of this
state. By this limitation, all that part of the common law,
which relates to the royal person, family, and prerogative ;
;ill which relates to the peerage, their privileges and preemi-
nence, is excluded. We have, strictly speaking, no common
law officers; all the offices in tins state are established,
and the duties, in general terms, pointed out by the consti-
tution, or by statute. The terms and expressions, adopted
in both, are frequently derived from the common law. The
office of sheriff, for instance, is contemplated in the constitu-
tion, and established by statute. His power and duties are
pointed out, generally by statute : these are, mostly, the
Mime as those of a sheriff in England; yet these powers
and duties are derived from the constitution and statutes of
this state, and, limited by them, the manner in which these
shall be exercised, if not pointed out by our laws, must be
learned from the common law of England, so far as adopt-
ed here ; as, the manner of an arrest — what shall be deemed
an escape.
From the different constitution of our courts, the English
mode of practice can, in very few instances be adopted;
Ihii their rules may, in most instances, he applied in deter-
minations on pleas and pleadings ; in the construction of
APPENDIX. 225
words and of laws ; in almost every instance, which can
arise in our state of society, between individuals, on torts,
frauds, or contracts.
It will be much more restricted in cases arising on our
landed titles. Many of those titles were derived from the
king of Great Britain, and many conveyances made, while
under British laws and government. Their validity and
operation must be decided by the laws under which they
were derived and made. But our landed property has suf-
fered a great alteration by the revolution. It has been
changed in the hands of the owners, from estates in fee, into
allodial estates, holden no longer even in idea of a supe-
rior.
The mode of descent, and right of inheritance, depend
entirely on our statutes ; while the degrees of affinity and
consanguinity are to be learned from the common laws of
England. The Avhole chapter of entails is abridged — per-
haps expunged — in a word all the consequences of the feu-
dal tenure are abolished — a tenure once very general in
Great Britain, the traces of which are still visible in all their
laws relative to landed property, and which introduced rules
and maxims, full of absurdity and oppression — rules and
maxims which there still operate, more or less, although the
reason of their introduction has long ceased. That part of
the common law, which arose from the adoption of the canon
law, has shared the same fate.
I have given these instances by way of example only. It
is not my design to enumerate every instance, in which the
common law of England is to be applied in this state, or in
which it is excluded or restricted. It will be of more use
226 APPENDIX.
to discover some general principles, which may enable us
to distinguish properly in our applications.
The common law of England is a system of rules, sup-
ported by precedents, handed down from remote antiquity.
These preeedcnts have, by the body of the law, as is common
enough with professional men, been held in too great vene-
ration.
A number of precedents, in point, however obscure or un-
certain the principles upon which they were founded, have
been held fully decisive of a similar question ; and yet many
of these precedents were made at a time, when the state of
society and property were very different from what they
are at present ; in an age when the minds of men were fet-
tered in forms ; when forms were held to be substances, and
abstractions real entities. Technical reasoning and un-
meaning maxims, of course, frequently supplied the place of
principles. 1
1 " Solvatur eo ligamine, quo ligalur," literally, "Let it be loosened
by the same tie by which it is bound." This pompous, unmeaning
maxim u;is introduced from the civil law. Tying and untying, binding
and loosing, are different operations, connected only by the subject, and
may be performed by different means and different powers. There is no
kind of similarity between them. By a forced application of this unmean-
ing maxim, many an obligor has been condemned to a second discharge
of his obligation, although able to make indubitable proof of a former dis-
charge, differing from his contract only, in some immaterial circumstance,
tu the full acceptance of the obligee ; and this because he could not make
his proof by an instrument of the same kind with that by which he was
hound. Lord Karnes has somewhere nearly the same observations.
Let me here add an instance of a different kind. The whale was a royal
fish. The head was allotted to the king ; the tail to the queen. Lex est
summa ratio. Law is the perfection of reason. A reason must be
given for this allotment. Say the ancient lawyers with much gravity,
APPENDIX. 227
Society was in a state of melioration. Manners and sen-
timent progressed towards refinement. Intercourse between
individuals, as well as nations began to be extended, and in
same measure, secured the rights of property, and the rights
of commerce were investigated, and better understood.
The clouds which had long hung over the reasoning facul-
ties, began to be dispersed ; principles were examined and
better established. Cessante ralione, cessat el ipsa lex. When
the reason of a law ceases, the law itself ceases, was adopt-
ed as a maxim of the common kuv ; for in those times,
nothing could be decided or altered, without a precedent or
a maxim. By the application of this maxim some prece-
dents which were originally absurd, and some which had
become inapplicable, through a change of times and circum-
stances, were set aside. The progress, hoAvever, was slow.
Men correct or give up with reluctance those things which
have cost much pains in learning. Many such precedents
had, however, become a rule of property. These could not
be shaken by the judges, without the greatest injustice to
individuals.
Upon rules and precedents, Judge Blackstone has the fol-
lowing observations : " Not that the particular reason of
every rule in the law can, at this distance of time, be always
precisely assigned ; but it is sufficient that there is nothing
in the rule flatly contradictory to reason ; and the law pre-
sumes it well founded." And again, " Precedents are to be
followed, unless flatly absurd, or unjust : for though their
" The tail was given to the queen to furnish her wardrobe with whale
bone ; " but for this, as whalebone is found onlv in the mouth of that
fish, she must have been still beholden to the king.
J28 MM'KNDIX.
reason be not obvious al firsl view, yel we owe such a def-
erenee to formei times, as not to suppose they acted wholly
without consideration." This mighl perhaps be well enough
in England, l>ut the principal reasons, there, for so strict
an observance of precedents, are that the rules of law may,
from their permanent uniformity, be the better known; and
lest by too easy a departure, judges might unwarily disturb
rights, or property acquired, transmitted or holden OB the
faith of such precedents. If no reason can be assigned, in
support of rules or precedents, not already adopted in prac-
tice, to adopt such rules is certainly contrary to the principles
of our government, and the spirit of our laws, which admit
not of arbitrary rules, or of arbitrary decisions, even in mai-
lers indifferent.
We can readily suppose that former ages did not act
without consideration ; we can believe them to have acted
upon principles and reasons, which arose out of their state
of societv : but it would be too great a deference to concede
to them, who are now no way interested in the concession,
or affected by it, the principles and reasons, which arise out
of the present state. It is much more just to them, and
to ourselves to suppose, that good reasons, there, existed,
which from a change of circumstances have long since
CCIKCll. 1
' Determinations of law, though they cannot always go the full extent,
ought never to stand opposed to the nicest sense of moral obligation, to
the principles of the government, or what ought to be the spirit of its
laws. In adjusting these, we should act more wisely, if instead of enter-
taining a Mind veneration for ancient rules, maxims and precedents, we
could learn to distinguish between those which arc founded on the prin
piples of human nature in society, which are permanent and universal,
APPENDIX.
229
It was a rule, that if a statute be made, altering the com-
mon law, and a statute come after, repealing the former
statute, the common law revives. But it ought to be under-
stood with this limitation, if the common law be founded on
principles still existing in the present course of justice.
Legal right and wrong, particularly in criminal jurispru-
dence, have an intimate relation to the constitution, princi-
ples, and circumstances of the government. There will be
a coincidence between the principles of the government, the
spirit of its criminal law, and the mode of interpretation and
execution.
The British government, which has ever been a mixture of
monarchy, aristocracy, and democracy, has principles pecu-
liar to that government. The monarchical principles have
a silent, but uniform influence on their criminal jurispru-
dence. 1
and those which are dictated by the circumstances, policy, manners,
morals and religion of the age.
'Many instances might be given of the influence of feudal, monarchical,
and aristocratical principles on the decisions of the English law. The
following are selected as examples.
Homicide per infortunium ; or the killing of a man by misadventure, is
held to be a crime. The manslayer is indeed pardoned of course; but he
forfeits his goods to the king; because, says the law, the king has lost a
subject. This is evidently of feudal original. The forfeiture was at
first intended as a reparation to the king for the loss of a vassal.
The absurd doctrine of deodands, which still disgraces the English
laws, was derived from the superstition of the times ; but is now consid-
ered as a prerogative right.
By attainder, the blood of the person attainted is supposed to be cor-
rupted, and to have lost every inheritable quality. The king may pardon
the person attainted, and make him a new man, but cannot restore his for-
mer inheritable connections, or prevent an escheat to the lord.
A son born before the attainder shall never inherit to this new man .
29
230 APPENDIX.
At the time when the common law was growing into a
system by means of precedents, the judges were solely de-
pendent on the crown. Monarchy procures obedience no
less by fear than by the principle of honor. The highest
orders in the government, and the most aspiring characters,
are influenced by the prospect of attaining honors. The
multitude are restrained by fear. The manners of people are
rough, and little short of savage. From all these circum-
stances their punishments become, in many instances, shock-
ingly severe. Whether it be owing to the force of habit, to
the influence of the monarchical and aristocratical principles
in their government, or both, modern refinement of man-
ners, modern delicacy of sentiment, has prevailed very little
to soften that severity. Their laws, like those of Draco, may
emphatically be said to be written in blood. They have
about one hundred and fifty capital offences. These are,
mostly, created or confirmed by statute ; but some are still
crimes at common law only.
The government of this state is that of a democratic re-
public. The principle of this government, by some called
virtue, is a sentiment of attachment to its constitution and
laws. This principle dictates moderation in the enacting,
in the interpretation and execution of its laws. Here there
his after acquisitions shall rather escheat. An after-born son may inherit ;
but not if there be any former son living, or heir of such son.
The following rule, which was adopted in a matter of mere civil right,
18 of the same feudal origin.
The brother of the half-blood shall never inherit to the brother of the
whole blood. The fee shall rather escheat to the lord; because, by the
feudal constitution, the descent is confined to the whole blood of the first
feudatory.
APPENDIX. 231
is, perhaps, some danger, lest, through the influence of pre-
cedents, the courts should deviate from the spirit of modera-
tion, the true spirit of our laws. I should lay it down as an
unalterable rule, that no court in this state ought ever to
pronounce sentence of death upon the authority of a common
law precedent, without the express authority of a statute.
" All fines," says the constitution, " shall be proportioned to
the offences." This is not to be understood of pecuniary
mulcts only. The word fines is here to be taken as synony-
mous to punishments. Taken in this large sense, the clause
is consonant to the principles and spirit of our government
and laws.
Actions which are criminal of England may not be so in
Vermont. Civil crimes become such by a certain relation
to the society where they are committed.
From the difference of the relation in different societies,
the same action may be either not criminal at all, or criminal
in a different degree. Here, cessante ratione, cessat et ipsa
lex, ought to be applied, whether to determine an action not
to be criminal, or to be criminal in a less degree. Nay, the
principles of the common law, winch are the true principles
of right, so far as discoverable, are competent to decide on
the criminality of an action, which shall be notoriously and
flagrantly injurious to society in this state ; although such an
action had never been done, or even heard of in England ;
and to declare a punishment, but short of death.
Lord Mansfield was powerfully attached to the monarchi-
cal and aristocratical principles of the British government.
Whenever these intervened in a cause, they had great influ-
ence on his reasonings. In other questions merely of a civil
232 APPENDIX.
nature, he was a great and a good judge. No judge, perhaps,
in that country, ever had a more thorough knowledge, both
of the principles and precedents of the common law. J lis
judicial opinion may he considered us a common law prece-
dent in the construction of this statute. " The law of Eng-
land " says he, " would be an absurd science indeed, were
it founded upon precedents only. Precedents serve 1 to illus-
trate principles, and to give them a fixed certainty, but the
law of England, exclusive of positive law, enacted by stat*
ute, depends upon principles ; and these principles run
through all the cases, according as they fall in with the one
or the other of them."
We may then lay it. down, that this statute gives the citi-
zens of this state the rules, maxims, and precedents of the
common law, so far as they serve to illustrate principles —
principles only, which, from the situation of society with us,
exisl in this state; but does not impose upon them those
principles which, .from the particular circumstances of that
government, exists only in England.
The act goes on to recite that, " Whereas the statute law
of England is so connected and interwoven with the com-
mon law, that our jurisprudence would be incomplete with-
out it ; therefore it. is enacted, that such statute laws, and
parts of laws of the kingdom of England and Great Britain, as
were passed before the first day of October, A. D. 1760, for
the explanation of the common law, and which are not repug-
nant to the constitution, or some act of the legislature, and
are applicable to the circumstances of the state, are hereby
adopted and made, and shall be, and continue to be, law
within this state, and all courts are to take notice thereof
and govern themselves accordingly."
APPENDIX. 233
In this section, the words " and are applicable to the
circumstances of the state " render any comment unneces-
sary. Indeed, though these words are not expressed in
the former section tamen tacite infant, they are contained
in sense.
No. II.
OF LAW IN GENERAL.
LECTURE I.
LECTURE FIRST.
In entering upon a course of legal instruction, it will be
proper to take a general view of the origin and nature of
law, as well as to define the limits within which we are to
proceed.
Judge Blackstone tells us that, " law in its most general
comprehensive sense, signifies a rule of action ; and is ap-
plied indiscriminately to all action, whether animate or inani-
mate, rational or irrational." Such is the sense which gen-
eral custom has annexed to the term. Thus when we speak
of the laws of nature in reference to the system of the universe
that comes under our knowledge, we mean those laws by
which all its motions and operations in all its parts are pro-
duced and directed in an unceasing series, regular, orderly,
and uniform. In these laws of nature Ave comprehend not
only those laws, which govern mere brute matters, whether
organized or unorganized, animate or inanimate, but those
moral laws which govern the actions of man as an intelligent
being. Between the former and the latter there is, however,
an important distinction. In the former, whether we suppose
with some that the Creator in the formation of the universe,
30
238 APPENDIX.
impressed on matter certain principles, from which it cannot
depart, without ceasing to exist, or with others, that according
to a predetermined plan, the movements of the whole system
and every operation, even to the most minute in the physi-
cal world, are carried on by an immediate exertion of the
Divine agency ; yet here the law as it respects the subjects,
is a law not of obligation, but of necessity. The subjects
are mere passive instruments, without consciousness, will,
intention, or power of resistance. No moral consequences
are attached. But the latter, the law of intelligent being,
by which I mean the law of human actions, is a law of ob-
ligation, not of necessity ; not physical, but moral. Man
has indeed a body consisting of matter, wonderfully organ-
ized, and endued with animal life. Considered as an animal,
he is subject to the physical laws of which we have been
speaking ; but he is also furnished with mind, with intelli-
gence, with a faculty by which to attain the perception of
moral relations, in which he finds himself placed ; he is con-
scious of an obligation, or perhaps we shall be as distinctly
understood if we say, he intuitively perceives an obligation to
perform a certain act, or to pursue a certain course of action.
This, which we may call a moral perception, is found to be
common to the whole human race, although more or less
clear ; more or less comprehensive in different men, according
to their different susceptibilities, and opportunities of improve-
ment. Hence is derived the general notion of a moral
law, which, by way of eminence, is called natural law, or
the law of nature. But this is not all which goes to con-
stitute the binding force of a law. There is further associ-
ated the notion of a Supreme Power, rightfully ordaining
APPENDIX. 239
the law, and requiring its observance. Without this I
cannot conceive how the obligation can exist. There might
arise a question of utility, but I do not perceive how a ques-
tion of duty can be raised. In the cause of natural law,
that Supreme power is perceived, and acknowledged to be
the great Creator of the universe, who made man, and estab-
lished him in a situation to sustain those relations, individual
and social, from which his duties result, and which point out
to him the moral laws of his nature. This view of the
subject suggests the propriety of an observation of Mr.
Christian, the learned annotator of the Commentaries, that
law, in its strict sense, is applicable only to human conduct,
or at least to the conduct of subordinate intelligences.
Every other application is metaphorical. In all cases in
physics, with strict propriety, for law, might be substituted
qualiti), property, or peculiarity. We sometimes speak of
the laws of Deity, but certainly in a sense very different
from that in which it is applied to man, or any of his other
creatines. Wlien we say that the Deity carries on his ope-
rations by certain laws, we mean this only, that they are
carried on with wisdom, regularity, and order, consummate
and undeviating. His will only can be his law. The idea
of a superior ordaining the law and requiring obedience,
cannot be here admitted Avithout obscurity and even impiety.
With as little propriety can we admit of the phrase when we
apply the word law to the operations of nature, or to the
works of art, as when we speak of the laws of vegetation,
of attraction, of mechanism, we certainly include the idea of
a superior Power, who has established the principles of ope-
ration in each case, through a constant and regular chain of
240 APPENDIX.
causes and effects, to the attainment of the end ; but here
we are forced, instead of obligation and obedience, which
includes volition, to admit necessity ; and to exclude the
ideas essential when we u<c law as applicable to man, of
disobedience and punishment. That the creature is neces-
sarily subject to the Creator ; that all created intelligences
endowed as man is, with free will, arc under the most
perfect obligation to obey the will of the Creator, upon
whom they are absolutely dependent, is an intuitive truth, a
subject of direct perception to every moral being capable of
understanding the proposition. It is a first principle in
Ethics, and, like every other first principle, is not left to be
discovered by any mere process of reasoning. The great
business of reason is to assist and direct in the application
of the principle to human conduct. The will of the Creator
is in like manner discovered in those relations which he was
pleased to establish in the moral system of man, by an intu-
itive perception of their result in moral obligation, the duty
of obedience. The Divine will cannot be supposed for an
instant without a reference to these relations ; much less can
it ever be supposed to stand in opposition to them, or to
reverse the result.
We ought here to take notice of an inaccuracy of Judge
Blackstone's. He has said that " God has not perplexed
the law of nature with a multitude of abstracted rules and
precepts, referring merely to the fitness or unfitness of
things, as some have vainly surmised, but has graciously
reduced the rule of obedience to one paternal precept,
'That man should pursue his own true and substantial
happiness." Tins, taken in the sense of the author, is, it
appeal- to UK', inaccurate al least.
APPEiNDIX. 241
There may be, and sometimes is, a complexity in the
relations, a difficulty in arranging them, and giving to each
its due weight and importance hi the association. When
the arrangement is properly made, the result is clear, the
perception of what is duty in the case is intuitive, Avithout
any reference to the supposed fitness or unfitness of things.
But that man should pursue his true and substantial happi-
ness, cannot Avith propriety be called a rule or precept.
Man's happiness is the great end proposed by all the pre-
cepts, the sure end to be obtained by obedience. To call
it a precept, is therefore to confound the law with the end
sought to be effected by the law.
In the view which we have taken of the subject, the law
of nature has its foundation in the will of God. It is his
will manifested to man in his works, and is, as Judge
Blackstone justly observes, " binding over all the globe, in
all countries, and at all times. No human laws are of any
validity, if contrary to this ; and such of them as are valid
derive all their force, all their authority from this original."
We must not here omit the law of revelation. From the
imperfection of human reason, and the moral powers of
man, he is necessarily subjected to imperfect views and er-
roneous conceptions. God has therefore been pleased, by
an immediate revelation, to discover to man those laws
and these duties, a knowledge of which he could not at
all, or but imperfectly, attain by unassisted reason; and,
although it has been justly observed that the laws of reve-
lation are found, on comparison, to be a part of the original
laws of nature, tending, in all their consequences, to the
felicity of man, vet it ought to be added that, as revelation
242 APPENDIX.
discovers to man more clearly his relation to his Maker,
ami the duties thence arising; opening to him the certain
view of an eternal existence beyond the present state; and
pointing out the means of securing his happiness through-
out thai existence ; not only consistent with, but promotive
of his happiness here; it oilers considerations which must
somewhat affect whal we have called the original laws of
nature — considerations which ought to enter into every
combination of moral relations, and proportionally to influ-
ence the duties thence resulting.
Thus explained, the laws of nature are the only true
foundation of all human laws. Judge Blackstone asserts
the same thing, and that no human laws should be suffered
to contradict these laws of nature ; and then adds, by way
of explanation, or rather by way of exception to the first
general proposition, " There are, it is true, a great number
of indifferent points, in which, both the divine law and the
natural leave man at his own liberty, but " Avhich are found
necessary to be restrained within certain limits."
Further on, he observes, in effect, that in those matters
which he calls indifferent, human legislators have scope and
opportunity to interpose, and to make that unlawful which
was before lawful ; and in treating of the obligation of posi-
tive laws, he considers those which are made concerning
these indifferent matters, as he calls them, as inducing no
moral obligation to the observance. His words are, " In
ii gard to those laws that enjoin only positive duties, and
forbid <»nlv such things which are not mala in se, but mala
prohibita merely, annexing a penalty for the non-compli-
ance, here, 1 apprehend, conscience is no further concerned,
APPENDIX. 243
than by directing a submission to the penalty, in case of a
breach of those laws." With all the deference due to the
author of the Commentaries, as a luminous* and, with few
exceptions indeed, a correct law writer, I am persuaded
that the doctrine here advanced is erroneous, and danger-
ous to be admitted into society. On a little examination it
will clearly appear, that every law, necessary for the good
of the state, — and such are the laws of which the author
was speaking, — is morally binding upon every member of
the community. The error seems to have arisen, at least
in part, from an opinion adopted by many, and which,
though not admitted by the author himself, seems to have
influenced his reasonings, that a state of individual inde-
pendence is the only true state of nature to man — that
every advance, every social improvement, is a departure
from his nature — and that, in an advanced state of society,
in civil government, it often becomes necessary, and even
right and proper, to make many laws for the good of the
state, which, though not contrary to the great original law
of nature, have not the sanction of that law ; and, though
politically binding, are not morally so, their observance or
violation docs not affect the conscience. A little considera-
tion will evince the unsoundness of this opinion, and all the
consequences supposed to be derived from it.
There is by nature implanted in man a capacity for im-
provement. He is a social being, formed by nature for
society. A state of nature may be a state of weakness and
ignorance ; but a state of knowledge and improvement is
not therefore, with man, opposed to a state of nature. As
well might we make the assertion of the infant and the
244 UTKMMV
adult. An endeavor alter knowledge, and the improvement
of his powers, social and individual, is indicated to man,
nay, is imposed upon him as a duty by the very laws of
his nature. That rude independence, so often imagined,
is a state forced and unnatural. It cannot exist without a
violation Ol a dereliction of almost all the laws constituted
by God in the formation of man. The isolated individual
is deprived of almost all the laws of his nature ; scarcely
have any of his powers, his mental faculties, passions or
appetites, either excitement or object. He may be freed
from some of the evils and vices found in society, but he is
also excluded from all its endearing charities, all its enjoy-
ments ; in a word, he is hardly entitled to the rank of man.
He is in possession of himself, and entitled fully to his rank
in society only. It is a state to which all his powers and
faculties arc adapted, to which the laws of his nature bind
him, and which gives him the full privilege of those laws.
Civil government is the necessary and natural consequence
of a state of society, as we shall have occasion to explain
more fully hereafter, and is legitimately founded in the
principles arising out of the social nature of man, or, in
other words, in the laws of nature. All the members of the
society have in it a common interest. This consists in the
means of securing to all, and adjusting their social and in-
dividual rights. To effect lliis end t laws to regulale the
conduct of the members, and direct it to the great object of
the society, the common good, are indispensably nccessnrv.
A power must therefore be somewhere lodged, to make and
enforce the observance of such laws. The mode of consti-
tuting this power must always he left to the wisdom of
APPENDIX. 245
man, and will vary more or less, according to the wisdom,
integrity, and means employed to effect the end ; but the
constitution of such a power is founded in the laws of social
nature. Surely, then, every law made in the spirit of such
constitution, whether it relate to the security of individuals,
to the security and improvement of social intercourse, inter-
nal or external, or to the support and maintenance of the
state, is ultimately derived from the laws of nature, and
carries with it the force of moral obligation. It is true,
that when a certain end is to be effected by a law to be
made, several objects may offer, and it may be a matter of
indifference, or rather of deliberation, on which the choice
shall fall ; but Avhen the choice is made and the law enacted,
that indifference is not transferred to the law to weaken
the obligation to obedience.
As to there being matters indifferent, which it is, neverthe-
less, " necessary to sustain by law," it appears to be little if
anything short of a plain contradiction. It is true that, in
certain stages of society, some acts may not be injurious,
but may be even beneficial to the community, and very
justly permitted to individuals, which, in a progressive
change of circumstances, become highly injurious; so that
a law to restrain these acts will have become right and fit,
or, to express it in the manner of our author, absolutely
necessary to the good of the whole. Surely, if the requisi-
tions of the law be right and fit, it is right and fit that it
should be obeyed. The duty of obedience is not a vague,
political, but a strict, moral obligation.
The cases in which the author of the Commentaries, as
well as others, have advocated this laxity of principle, are
31
246 APPENDIX.
generally of laws regulating commercial intercourse, or for
raising a revenue to tin- state. The learned annotator, Mr.
Christian, whose opinion 1 am happy to find coinciding with
thai which 1 had Ion:/ entertained, has illustrated this point
in a brief but masterly manner. I shall conclude this part
of the subject with a passage from his notes. After having
taken notice of certain laws made to prevent the destruc-
tive effects of (ire in London, and the quarantine laws, made
to guard against the importation of infectious diseases, he
proceeds :
" He who, by a breach of these positive laws, introduces
conflagration and pestilence, is surely guilty of a much
greater crime than he who deprives another of his purse or
his horse." " The laws against smuggling are entirely juris
positivi ; but the criminality can only be measured by the
consequences ; and he who seizes a sum of money by evad-
ing the public tax, does exactly the same injury to society as
he who steals so much money from the treasury ; and is
therefore guilty of as great immorality, or as great an act of
dishonesty. Or smuggling has been compared to that species
of fraud, which a man would practise who should join with
his friends in ordering a dinner at a tavern, and after the
festivity and gratifications of the day, should steal away, and
leave his companions to pay his Bhare of the, reckoning.
Usury and simony are entirely of a positive nature, yet few
men would have a conscience quite at ease who had been
guilty of either."
Punishments or penalties arc never intended as an equiv-
alent or a composition for the commission of the offence ; but
they are that degree of pain or inconvenience, which are sup-
APPENDIX. 247
posed to be sufficient to deter men from introducing that
greater degree of inconvenience which would result to the
community from the general permission of that act which the
law prohibits. It is no recompense to a man's country for the
jnsequences of an illegal act that he should afterwards be
whipped, or should stand in the pillory, or lie in a jail. But
in positive laws, as in morals, it is equally false that omnia
peccata paria sunt. If there are laws, such perhaps as
the game laws, which, in the public opinion, produce but
little benefit, or no salutary effect to society, a conscientious
man will feel perhaps no further regard for the observance
of them, than from the consideration, that his example
may encourage others to violate those laws which are more
highly beneficial to the community. Indeed, the last sen-
tence of the learned Judge upon this subject, (" that where
disobedience to the law involves also any degree of public
mischief, it is also an offence against conscience,") is an
answer to his own doctrine ; for the disobedience of any law
in existence, must be presumed to involve in it either public
mischief or private injury. It is related of Socrates that he
made a promise with himself to observe the laws of his
country ; but this is nothing more than every good man
ought to promise and to perform ; and he ought to promise
still further, that he will exert all his powers to compel
others to obey them. As the chief design of establishing
government is the prevention of crimes, and the enforce-
ment of the moral duties of man, obedience to that govern-
ment becomes one of the highest moral obligations ; and
the principles of moral and positive laws being precisely
the same, they become so blended that the discrimination
248 APPENDIX.
between them is frequently difficult or impracticable, or, as
the author of tin- '• Doctor and Student " has expressed it with
beautiful simplicity, " lu every law positive, well made, is
somewhat of the law of reason and of the law of God;
and to discern the law of God and the law of reason from
the law positive, is very hard."
Having premised these observations on the origin and
nature of laws in general, pointed out the foundation of all
laws, and the sources whence their obligation is derived, I
shall hereafter take a brief notice of the law of nations;
explain the general nature of municipal laws ; and then
proceed to a systematic investigation and explanation of the
common law of England, which is to be the principal
subject of the intended course. We shall dwell, however,
more particularly on those parts of the common law "which
are in force in this country, and the rules, reasons and prin-
ciples, by which our judicial decisions are governed in all
cases where the constitution or positive laws have not been
interposed to supersede or alter them. Other parts will
meet with attention so far, and so far only, as shall be found
necessary and proper for elucidation, and to show the con-
nection of the system.
No. III.
NATIONAL LAW, AND MUNICIPAL LAW IN GENERAL.
LECTURE II
LECTURE SECOND.
It was on a former occasion observed, that in the sup-
posed state of nature, which is made to consist in individual
independence, the laws of nature are almost wholly ex-
cluded. In such a solitary state, the laws of morality,
which teach the duty towards our fellow-men, the social
duties which result from such relations only, can have no
place. Such a state is merely imaginary. A man may tear
himself from society ; he may place himself in a total seclu-
sion from all others ; but whenever and wherever he is
placed with man, social relations arise, and social duties
result from the laws of his nature, independent of his volition
or choice. These duties, by forming connections and re-
lations more or less intimate, he may vary, contract, or
extend within certain limits, but he cannot abrogate law, or
weaken its obligation. A state of society may indeed be
supposed, and has actually existed, previous to regular po-
litical institutions, or any adopted form of civil government.
In such a state the natural law of morals can be the only
law which is prescribed, and can be enforced only by the
collective sense and natural authority of the wise and good,
252 APPENDIX.
and will frequently assume the shape of compact and agree-
ment, rather than of civil laws, the organs of legislative and
executive power being wanting.
Mankind, dispersed over the earth, could not unite in one
society. Local and other circumstances have occasioned a
division into separate stales and nations, independent of
each other, without that intimate, united bond of common
interest, in which the individuality of a slate or nation con-
si- ts. Between independent nations various circumstances
of necessity or convenience induce international communi-
cations, an intercourse more or less frequent and intimate.
Among independent nations, from the very nature of their
situation, no common superior power to dictate and enforce
the law can be admitted. In this respect, the great society
of nations, as we may call them, resembles, in no incon-
siderable degree, the state of society just described, as
existing before the actual organization of civil government.
The law of nature, which in this application of it is called
the law of nations, is therefore the only law; for although
they may enter into the most solemn treaties and conven-
tions for regulating intercourse, and adjusting mutual con-
cerns and interests, yet is each nation bound to the observ-
ance of treaties and conventions, by mutual law only.
Bach must depend on the faith of the other, and in case
of violation must submit, or resort to the law of force.
Such is the foundation of international law, which in the
Institutes of Justinian is thus defined : ■• Quod naturalis
ratio inter omnes homines constUuit, id apud omnes gentes
jurivfjiir aisloditur ; vocaturque jus gentium, quasi quo jure.
omnes gentes utuntiir" — "That law which natural reason
APPENDIX. 253
appoints for all mankind, is called the law of nations, be-
cause all nations make use of it." We are not, however,
to suppose this law always to have been dictated by pure
reason, deliberately deciding what is right and fit, but by
reason influenced, controlled, and directed by the prevailing
manners, knowledge, interests, and pursuits of the age. In
short, every claim to its observance has been made to depend
rather on long established usage, than any original dictates
of right reason.
Accordingly, we find that international law has always
partaken of the barbarity of the age, and has been improved
and refined with the improvements and refinements which
have taken place in the knowledge and manners of nations —
greatly retarded, however, by the force of custom. It will
be sufficient at present to mention one instance in the laws
of war. Among the barbarous nations of antiquity, and
this comprehends every nation whose history is extant, the
laws of war acknowledged no right but that of the strongest.
These laws universally subjected in full right to the con-
queror, the life, liberty, and property of the conquered. To
grant to a captive enemy, or to the people of a conquered
country, their lives, in exchange for perpetual servitude for
themselves and posterity, or the payment of a perpetual
tribute, was considered as a humane indulgence — a relax-
ation of the strict right of the conqueror. Such continues
to be the acknowledged law of nations throughout Africa,
and no small portion of Asia. The same law is admitted,
and carried into execution Avith augmented severity by the
aboriginal nations and tribes on this continent.
But among the nations of modern Europe, and their de-
32
254 APPENDIX.
scendants in other parts of the globe, improvements in liberal
science, and refinements in manners and morals, under the
benign influence of the Christian religion, have banished
this reproach from their code of international law.
Wiih these brief notices of the law of nations, I shall pass
on to the municipal law ; some explanation of which is a
necessary preliminary to the study of the common law.
Municipal and civil law, when used generally, are lerms
of the same import, meaning the rules or laws by which any
particular state or nation is governed, as Ihe municipal law
of England, of France, or any other nation. When the civil
law is mentioned by way of eminence, it is applied exclu-
sively to the code of Roman law — that which was once the
municipal law of ancient Rome, or rather of the Roman
empire. Municipal law under the name of jus ciri/c, or civil
law, is thus defined by Justinian. " Quod quisque popukts
sibijus constituit, id ipsius prqprium civitaiis est, et vocatur jus
civile quasi proprinm ipsus civitalis" That law which a
people institutes for its own government, is called the civil
law of that, people, This comprehends, not only the posi-
tive laws expressly enacted by the legislative power, but all
customs which have obtained the force of general laws in the
state.
Judge Blackstone has given a more particular and more
scientific definition of municipal law. He tells us that it is
a rule of civil conduct prescribed by the supreme power in a
state, commanding what is right, and prohibiting what is
wrong. Let us now, with the author of the Commentaries,
endeavor, as concisely ;>^ possible, without Losing sight of
perspicuity, to illustrate the several parts of the definition.
APPENDIX. 255
First, then, municipal law is a rule. It differs from a mere
order given by a superior to an inferior, which is confined
to the person or the occasion. It differs from an act grant-
ing property, or a privilege, or exemption to an individual,
or enacting a penalty upon a particular person. For although
these assume the name and shape of laws, and though they
may have permanency, yet they want that universality which
is essential to a rule, in the sense of municipal law. Such
are usually called private acts, and may, with the strictest
propriety, be called grants, compacts, or sentences, accord-
ing to the subject and the parties. Not that it is necessary
that the rule or law should operate simultaneously or imme-
diately upon all the members of the community. It is suffi-
cient that it have a potential operation upon all, that its
scope and tendency is to secure the rights of the citizens, to
secure an impartial administration of justice, or in any legit-
imate way to promote the general interests, although in its
immediate requisitions, it shall extend only to a certain class
or certain classes of men in the state. Thus an act requir-
ing all persons, accepting any public office, to take an oath
for the faithful performance of its duties, in its immediate re-
quisitions, extends only to those persons who shall, from
time to time, be appointed to such office ; yet it is with pro-
priety deemed a general or universal law, not so much be-
cause appointments are supposed to be open to all, so that
all may become subject to its immediate operation, for in all
governments there are qualifications for office, and exclu-
sions, particularly that of one of the sexes generally, but be-
cause to secure a faithful performance of the duties of public
functionaries, the great object of the law, concerns the com-
munity universally.
256 APPENDIX.
The law is distinguished from advice or counsel, for that
it imposes an obligation, and compels even the unwilling.
Whereas advice or counsel is received or rejected, at the op-
tion of those to whom it is addressed. The distinction
between a law which commands, and a compact or agree-
ment which promises, it is sufficient barely to mention ; it
can need no illustration.
Municipal law, as being a rule of civil conduct, is distin-
guished from the law of nations, which is a rule of moral
conduct, and of which we have already treated. The natu-
ral law of morals extends to every duty of man, as a social
being, and as a being dependent on his Creator ; it extends
as well to those of imperfect, as to those of perfect obliga-
tion, as distinguished by ethical writers. While it enjoins
the great duties of justice, essential to the existence of so-
ciety, it also enjoins the duties of benevolence and charity,
essential to its happiness — that each should do good to
others according to their relative means, situation and op-
portunities.
The municipal law extends only to duties of perfect obli-
gation. It regards men as members of the state only ; its
great and principal object is to enforce the duties of justice,
both public and private ; to compel each to render to others
their just dues ; to abstain from all those acts which are
injurious to individuals or to the community at large ; to
punish crimes which affect the peace and safety of the citi-
zens, or the safety and welfare of the state, and to compel a
reparation of all injuries, whether public or private. Thus,
although municipal law is founded in the law of nature, the
great law of morals, and coincides with it to a certain ex-
APPENDIX. 257
tent, yet is it more limited in its end, regarding the happi-
ness of men merely, and alone as connected with the civil
state.
Municipal law is also a rule prescribed. This implies
that the law be prospective, not retrospective in its opera-
tions, and that it is to be made known before it can justly be
entitled to the attribute of a rule of civil conduct. For, to
require that past conduct should be judged by its conformity
or non-conformity to a law subsequently enacted, or that
future conduct should be affected or judged of by a law
enacted in secretj and of which no means of knowledge is
furnished to the party to be affected thereby, is the supreme
of tyranny, contrary to every solid principle of natural law,
reason and justice.
And lastly, in what we may call the first branch of the defi-
nition, it is said that municipal law is not only a rule of civil
conduct prescribed, but is a rule prescribed by the supreme
power in the state. That the power to make laws which
shall bind the community through all its members in the
duty of obedience, must be paramount or supreme in the
state, is too obvious to need illustration. For how can that
be deemed a law, or rule of civil conduct, winch may at
any time be suspended, or its obligation dissolved, by any
citizen at his option. In such case it assumes not the char-
acter of a law but of counsel or exhortation, which those to
whom it is addressed may accept or reject at pleasure. It
is true that by the constitution of a state, a temporary power
to suspend the operation of a law may be vested in an
organ, distinct from that of ordinary legislation ; but this is
only a participation of the supreme power, to the sove-
258 APPENDIX.
peignty of which appertains the power of suspending and
repealing, as well as of enacting laws.
In this power oi' legislation, the power of suspending or
repealing laws, consists the sovereignty of a state, whether
this power be vested in a mere simple or more complex
organ ; whether it be in the whole body of the citizens, as in
a pure democracy, in a select body as in an aristocracy, in a
single person, as in absolute monarchies, or in a union of all
these forms, as in the parliament of ( hreal Britain, consisting
of the king, the monarch, the house of lords, the aristocracy
of the country, and a house of commons, the representa-
tives of the people, or democratic part of the nation.
It may not be foreign to this branch of our subject to
make some farther inquiry into the origin and nature of civil
government — the foundation of this sovereign power — and
the right with which it is vested of enacting and enforcing
laws.
I cannot readily assent to the proposition, however sup-
ported by great authorities — that the only true and natural
foundation of civil society is the w r ants and fears of indi-
viduals — I think, as has been already briefly remarked, the
foundation is more deeply laid in the laws of social nature ;
in the adaptation of man to the social and civil state by thai
nature, which is the constitution ordained by creative wis-
dom and goodness. His wants and his fears as an individ-
ual, arising from his weakness, which is inseparable from his
nature in his state of existence, can be considered only as an
inducement, a powerful inducement if you please* to avail
himself of the laws of his nature, and by building on that
foundation, to seek security againsl his fears, and relief to
his wants, in local and civil institutions.
APPENDIX. 259
It has, I think, been already evinced that man is not only
adapted by original constitution, but is, if I may use the ex-
pression, bound by the laws of his nature to the social state.
A few observations may suffice to show his adaptation to the
civil state.
If we inquire what it is which ultimately renders man a
fit subject of moral government, we shall find it in his con-
sciousness of moral obligation ; or what we may, with a
good degree of propriety, call his sense of accountability.
The sense of accountability is the result of moral perception.
When a man perceives in the result of certain existing
moral relations, a duty enjoined, he is, in the performance of
the duty, conscious of a sentiment of self-approbation accom-
panied with pleasure ; in the neglect or violation, a sentiment
of disapprobation, accompanied with pain to the mind, with
displeasure. In viewing the moral actions of others, he finds
arising in his mind towards the agents, similar sentiments of
approbation or disapprobation, as the action may have been
considered as morally right, or morally wrong. He finds
this common to man, and conceives it to be a common prin-
ciple in the law of moral beings. He perceives that the
approbation or disapprobation of his own actions by others,
as they have been a performance or violation of his moral
duties, or in other words, as they have been right or wrong,
to be just and due.
It ought to be added, that it is a principle implanted in
the breast of every human being, that he should desire the
approbation of others, and that he should derive a rational
pleasure from the merited gratification of this desire. He
has a consequent dread of their disapprobation, and sutlers
pain, is rendered unhappy by merited censure.
260 APPENDIX.
When man raises his views to the Supreme Being, his
Creator, on whom he is dependent, he conceives an appro-
bation, or. perhaps, to speak with more propriety, a com-
placency in the Divine mind, in the observance of the just
laws which he has established, and a disapprobation in then-
violation by the creature. This view of the subject, with
the conception of the Divine displeasure at the offence,
brings home to the mind not only a sense of punishment
experienced in the apprehension of the displeasure, but the
full right and justice of punishment. By this branch of
accountability to his Maker, and moral lawgiver, is man
finally fitted, and his subjection to moral government com-
pleted.
From that sense common to mankind, that perception
which every man has, that agreeably to the laws of his social
nature, his actions, according to their merit or demerit, are
of right subjected to the approbation or censure of his fellow-
men, arises a second branch of accountability. The mutual
accountability of each to all — different from the other in
degree, extent and immediate object, but equally founded
in the laws of nature, as ordained by the great first cause.
Having taken this view of man and the laws of his nature,
if it be sufficiently correct, it is obvious to conclude, that as
his sense of accountability to his Creator renders man a fit
subject of moral government, on the same principle his
sense of accountability to his fellow-men renders him a fit
subject of human, that is, civil government. If we have
been at all successful in our inquiries, it is very evident that
the foundation of civil government is laid on the broad basis
of the laws of nature ; it is founded in those principles
APPENDIX. 261
which arise out of the nature of man, as a social and moral
being. That man is under a necessity to adopt civil govern-
ment is readily admitted ; not a necessity arising from fears
and wants of individuals, or even from the perversity of hu-
man nature, but a necessity arising from his nature as a
limited as well as social being. Let me endeavor to show
in what this necessity consists ; and in doing this I shall not
hesitate to repeat some of my former thoughts, when lucu-
brating upon the same subject.
Men have a relish for society. It is the scene of their im-
provements, and the great source of their happiness ; still
no degree of individual strength, no possible goodness of
heart, can enable them to enjoy its benefits without a pro-
vision of civil institutions and law.
Perception, consciousness, and volition, or those powers
which originate external actions in men, belong to them
individually. A society consisting of any number of indi-
viduals, can have no common united perception, conscious-
ness, or volition. Could this be the case a society might
well, and with the simple act of volition, direct and control
the actions of all and of every one of its members with the
same ease and regularity with which an individual directs
and controls the motion of his own body and its members ;
but this is denied to man in the aggregate, and in every
combination of society. The will of the society is made up
of the individual wills of its members.
Had man been formed with faculties which misjht have
enabled him, with an intuitive glance to penetrate and com-
I > ill lend as they arise the individual wills of all the members
of the society, and of all whose conduct might any way
33
262
APPENDIX.
affect it ; to penetrate and comprehend the passions, appe-
tites and pursuits of every individual ; in a -word, to discern
and comprehend all the causes by which God governs the
ad ions of moral agents ; — were he endued with reason suffi-
cient to arrange the whole, so as to prevent any individual
interference — goodness of heart and purity of mind to ena-
ble him to pursue the arrangement in such a state, both of
knowledge and disposition, — he would stand in no need of
civil laws, or rules prescribed by common consent, for the
regulation of social conduct. But such a state falls not to
the lot of any finite being.
Our positive knowledge is only partial of the present
and past, depending on actual and successive observation.
There is, however, given us some clue to the future. We
are able to perceive certain relations ; and as far as expe-
rience leads, we find a uniformity in the course of nature.
We discover some of the causes and some of the laws by
which physical effects are produced in a regular series ; of
others we are wholly ignorant, or have at best but an im-
perfect glimpse. Much more limited is our knowledge of
the causes which produce and vary human actions, subject
to the influence of motives, to the choice of the agent, and
to those laws by which they are governed in succession.
In an extensive society, individuals can have but a limited
knowledge even of the present actions of the whole. Their
knowledge of the intentions and causes on which future ac-
tions depend, is much more limited. We arc able to gain
some knowledge of the leading principles of actions, of the
motives which generally prevail, and the species of action
they will produce in certain situations. But to descend to
APPENDIX. 263
every situation, to every character, and thence to learn fully
the particular influence of motives and the individual ac-
tions, which will follow in each, is beyond the reach of hu-
man sagacity. In a society composed of any considerable
number of individuals, and in a state of any considerable
activity, there will be many and very different situations.
The influence of motives upon individuals will be very
different. They will have a variety of distinct interests and
pursuits ; and those not at all, or very imperfectly known to
each other in their origin. However innocent and right
those interests and pursuits may be, when considered sepa-
rately, they will, by frequent, though unintentional inter-
ferences and oppositions, form a scene too intricate for the
powers of the human mind to evolve. Could we suppose
every person in the society actuated by principles of the
most disinterested benevolence, and by the most accommo-
dating spirit, the whole time must be consumed in attempts
to compromise — none could be left for action.
Without a social perception, consciousness and volition,
with any goodness, and with any wisdom short of infinite,
the state of society would, at best, be a scene of inextricable
confusion. To remedy such evil, nature has pointed out to
man the necessity of civil establishments, and the promulga-
tion of laws. Here man finds a provision analogous to his
nature. By the establishment of laws, which the individu-
als of the community have submitted to observe as the rule
of their future conduct, they are enabled, with a sufficient
degree of certainty, to foresee the future pursuits and inter-
ests of each ; following the line prescribed, they can avoid
any considerable interference, or, by applying the rule,
264 APPENDIX.
remedy the inconvenience. In no olher way is it possible to
connect a community either in sentiment or interests, to
unite the public force, to direct it to the attainment of any
common good, or to the avoiding or repelling any common
evil ; in no other way is it possible to give any security to
public or private rights.
Still men are imperfect ; they will be guilty of deviations,
transgressions of the law, and infringements of each other's
rights. This will happen sometimes through ignorance of
the law, or of the right ; an ignorance which arises from
weakness in judging, or inattention in examining. Some-
times it will happen through the prevalence of interest, or
the violence of passion ; therefore, to give laws a compul-
sory force, and to secure a general observance, they must be
so calculated that every member shall find a convenience in
the observance, but more especially a certain inconvenience
in the neglect or violation. Hence arises the necessity of
penalties. These penalties are, from the weakness of men
in discerning tendencies, and their consequent liability to
vice, necessarily enhanced. Hence, also, arises the neces-
sity of subordination, and of civil rulers to give activity and
efficiency to the laws. In a state of greater perfection than
is to be found in the present state of society, a greater per-
fection in knowledge and virtue, penalties may make a less
formidable appearance ; but in every state the necessity of
penalties will equally exist.
In a society composed of a few individuals, in a simple
state of manners and of property, the motives to action are
few ; consequently there is little activity of individuals, and
little interference of interests. A few simple rules, mostly
APPENDIX. 265
adopted and supported by custom, and frequent consulta-
tions upon present emergencies, supply the place of a more
regular polity. They are the first rude essays in civil insti-
tutions. Still, in every state of morals and manners, a ne-
cessity of known and established rules or laws, equally exists.
On the whole, Ave may safely conclude, that no order of
beings short of infinite perfection, in wisdom as well as in
goodness, can subsist in society without an establishment of
civil government and law.
No. IV.
THE SYSTEM OF LAW, AND THE PROPER METHOD
OF STUDY.
LECTURE III.
LECTURE THIRD.
My principal view, in this lecture, will be merely to make
some strictures on the common law of England, its rise,
progress, and formation into a science, and to add some
observations on its study.
Man is everywhere the creature of habit. By repeated
exercise of his corporeal powers and organs in any particu-
lar way, he not only acquires a facility and dexterity in the
performance, but a fondness for the exercise ; it becomes a
habit. It is the same with the mental powers, whether taken
individually or socially ; to whatever course of action man
may have repeatedly applied himself, a habit is superinduced.
Such is the common nature of all persons. Social action is
originated and directed by mental exercise. By repetition
in such case, a mental habit is acquired. It is a habit, of
the moral and social kind, intimately connected with a notion
of right and justice. Where the operation is on the minds
of all, or the major part of the society, the habit becomes
general, and thus a custom is introduced, by which is deter-
mined what is right and fit, what ought to be done in every
case falling within the custom. In a word, it obtains a
34
270 APPENDIX.
binding force, and becomes the law of the society. Such
appears to be the origin of national customs, or common
law. Connecting with the moral feelings, these customs
acquire to a degree the force of moral obligation, and are
enforced by the same sanctions ; the observation is felt to
be right, the non-observance or violation, wrong. The
observance, therefore, meets the general approbation, the
violation, the general censure. Combining with the general
interest, it is perceived to be the right of the community
to require a general observance. In the progress of society
new pursuits and new interests arise, and the state becomes
more complex ; the early customs, few and simple, become
insufficient. The society, therefore, by themselves, or by
some authority delegated or assumed, agree upon new rules,
to be applied to those cases in which the customs already
established are found to be deficient, and thus positive laws
or statutes are introduced. These new laws being fre*-
qucntly altered, modified, repealed and revised, never
obtain, as such, that habitually binding force which attaches
to the ancient customs. Some of these positive laws, made
in the early stages of society, may, however, be lost, while
the rules which they have introduced in practice, continue
to be acted upon. Such rules will now be considered as
customs, and binding as such ; and such, in its origin, was
the Common Law of England. It has indeed, in its
progress, received great additions from various sources,
until it has grown up into that vast fabric, that comprehen-
sive system which we now find it. Most, writers on the
subject have held, that the customs of which the common
law <»l England is composed, originated with the Saxons
APPENDIX. 271
who conquered that island ; and this from a belief that the
ancient inhabitants, in that event, were wholly exterminated
within the limits of the conquest. But it seems probable
that the great multitude, of villeins or people reduced to
slavery among them, — and such were with them almost all
the cultivators of the earth, — were a remnant of the con-
quered Britons, the ancient inhabitants. It is reasonable to
suppose that these were of the lower class of the Britons ;
those of the higher class, and the most warlike, having per-
ished in the war, or fled into the almost inaccessible moun-
tains of Wales. From those who remained, it is highly
probable that the Saxons received and adopted with their
own some of the British laws and customs. Some of these
were, we may suppose, of Roman origin, as Britain had for
centuries been a Roman province, and all the laws had
been administered by Roman governors and judges. But
from the degraded state of the Britons who remained after
the Saxon conquest, their laws and customs might not have
obtained to a very considerable extent. I think, however,
this will account for the similarity found in some of the ear-
best Saxon laws t5 the Roman or Civil law. The body of
the customs, however, were of Saxon origin. Upon the
Saxon conquest, England had been divided into seven inde-
pendent kingdoms, called the Heptarchy, in which customs
somewhat different obtained. The Danes, who conquered
and made permanent settlements in some parts of England,
and even at one time obtained the sovereignty of the whole,
introduced some of their customs. Aftei the union of the
Heptarchy under one sovereign, Alfred the Great, a prince
the most learned of that age, collected all the customs and
272 APPENDIX.
laws of general application, into one code, and ordered
that it should be observed throughout the kingdom. Alfred
also made a civil division of the kingdom into counties,
hundreds, and tithings, and established county and some
other courts. These divisions and courts, though with some
alterations, still continue. A revision of Alfred's code was
commenced by Edgar, and afterwards completed by his
grandson, Edward the Confessor, and probably with some
additions.
A very great alteration was made in the common law by
the introduction of the feudal system into England, by
William the Conqueror. This system was for some time
refined upon, and carried to a great extent by the courts now
filled with Norman judges, and who were frequently guided
by the laws and customs of their own country. The books
of the civil law, which had long been supposed to be lost,
having been discovered, were studied with indefatigable zeal
by the clergy, who almost monopolized what little there was
of learning in that age ; the advocates in England were
mostly of this class, as were also many of the judges. And
although the civil or Roman law was never publicly allowed
to have any force in England, and was not cited as au-
thority, yet the decisions of the courts were in many in-
stances influenced by its rules. Accordingly, we find thai
Grlanville, chief justiciary of England, and a noted law
writer in the reign of Edward I., as well as some other
writers who followed him, have, although without reference,
copied into their works many pi of the civil law, which
were taken ;i> part of the common law of England. Indeed,
as commerce and personal property increased, and personal
APPENDIX. 273
contracts, which in those times had in consideration of law,
occupied the back-ground, became important, the books of
the civil law furnished the best, nay, the only practical rules
to which resort could be had. In such cases we shall even
find that down to later times — from the same source, but
without acknowledging the authority of the civil law, were
drawn many rules and maxims for governing decisions in
cases of personal contracts, deposits and trusts. Very few
statutes of the first Norman kings are now to be found. It
is very certain, however, that the statutes passed in those
early times, introduced a course of decisions, which after the
statutes were lost and forgotten, came to be considered as a
part of the common law. We further find all the early
statutes were very short, and indeed mere capitularies, es-
tablishing some material point, and leaving all the rest to
the interpretation of the judge. These interpretations and
the rules and maxims adopted by the court, to elicit the
meaning and to give effect to these summary acts, may be
considered as a great addition to the common law. To in-
stance — in the statute of Westminster 2d, commonly called
the statute De-don is. This statute enacts, that henceforth in
all donations, the Avill of the donor shall be observed. From
this short sentence, by construction, has been deduced all
the various species of estates tail, and all the doctrines con-
cerning them which occupy so large a space in the English
law of real property. Great additions to the common law
have continued to be made down to the present time. The
law merchant, a very important branch of the law, has been
very greatly extended and improved, ll has been, and by
some still is, considered to be a particular custom, but ll
274 APPENDIX.
certainly now is. whatever it might have once been consid-
ered, a legitimate branch of the common law. It compre-
henda a very extensive and importanl branch of contracts.
Nor is it at all material whether any of the parties to such
contracts, be merchants or not. If neither of the parties be
B merchant, it is, by all, allowed to be sufficient to say, it is
a mercantile transaction, and therefore to be decided on the
principles of the law merchant, whatever may be the char-
acter of the parties. But for a custom to extend to all
through the kingdom, without limitation of person or place,
answers the fullest definition of the common law. The
common law, in connexion with the statute law, forms a
system, the knowledge of which is called the science of law.
To those who are engaged in this study, it may be useful
to inquire, how this system has been formed. It may serve
to facilitate their progress. It has not been formed into the
system, into which it is grown, from any previous or cotem-
porary design directly intending to produce such system.
Those who, in the progress, have furnished the most valuable
materials, and have contributed most to its perfection, appear
to have had no such particular aim ; and even, for the most
part, not to have thought it capable of being reduced to a
system. It has been prepared and adopted through the in-
fluence of that tendency to analogy which is so natural to
the mind of man, by means of which everything in his pur-
suits turns towards, and finally takes a systematic form.
From this, every child in learning to speak, not from being
taught, but from a natural propensity, pursues and is guided
by analogy. When he lias once learned to express his
meaning of things, in the little circle of his knowledge, he
APPENDfX. 275
will, in the use of words that are anomalous, constantly, until
otherwise taught, form them according to the analogy of the
language, although he shall never have heard of analogy, nor
be even capable of understanding its meaning. From this
general propensity to analogy in everything, in a course of
action, whether pursued by one man only, or by several in
connection or succession, there is a constant tendency to
system, whether directly intended or not. In this way have
been prepared almost all the great systems to be found in
the arts and sciences, within the whole compass of human
knowledge. The materials had been prepared, the several
parts had been formed, and had received their adaptation
long before the systematic proportions were suspected. In
such a state, what is called forming a system, is nothing
more than a discovery of its existence, and an orderly and
well-arranged description and delineation of its several parts
and relative proportions. "We now apply the name of sys-
tem to the systematic description — to an orderly and scien-
tific disposition of the names of the several parts. We also,
by an allowable figure, give the name of system to a treatise
on such a subject. Far be it from me to depreciate the meril
of such discovery and arrangement, often, very often, of
incalculable benefit to the scientific world. It frequently
requires a perspicuity, a force and comprehension of intel-
lect, which falls to the happy lot of a few of the human
race.
It has fared with the laws of England as with other sys-
tems which have grown up in a long course of gradual im-
provement. For centuries, if was hardly, if at all, thought
capable of being treated systematically. The best method,
11 () APPENDIX.
it was thought, was to treal "I the several parts or heads,
according to an alphabetic arrangement of their several
titles. This arrangement, be sure, has the convenience of
a dictionary ; but, for any scientific purpose, the disposition
might have as well beeu made fortuitously.
Such was the arrangement adopted by Viner, by Bacon,
Comyns, and many others. Some heads of the law had
been treated under a more scientific form, but with very
little illustration from deduction, or connected reasoning.
Such treatises consisted mostly in a collection of rules,
maxims, and decided eases, considered as applicable under
the several heads. The lawyer and the student were left
to make their own deductions and conclusions, and to apply
them each by the force of his own reasoning. In this situa-
tion the study of the law was laborious indeed. The
" Viginti annorum lucubraticmes" was sufficiently short for
attaining any competent degree of knowledge. That emi-
nent lawyer and judge, Sir Matthew Hale, avIio flourished
in the reign of Charles II., was the first, so far as I have
been able to learn, who conceived the opinion that the law
of England w T as capable of being reduced to a system, and
of being treated scientifically. With this view, in his his-
tory of the common law, an unfinished work, not published
until after his death, he had exhibited a complete scientific
analy sis of the law. This conception Judge Blackstone
afterwards realized in his Commentaries. He has taken
from the great divisions of that analysis the iitlc< of bis four
Looks, and from the subordinate divisions, the titles of the
subordinate divisions contained in Ins greal work. Since the
publication of the Commentaries, there have appeared a
APPENDIX. 277
great number of treatises upon distinct heads of the law,
many of them handled in the same masterly and scientific
manner. Such are Chitty on Pleadings and on Bills ; Jones
on Bailments ; Powell on Contracts, on Devises and on
Mortgages ; and many more too numerous to mention. All
these have, in a very high degree, facilitated the progress of
the student, and aided the researches of the lawyer. It may
not be amiss again to refer to the propensity to analogy,
already mentioned — to attend briefly to its necessity and
use in the acquisition of all general knowledge ; and the
necessity of a particular attention to it in the study of the
law. United with the power of abstraction and association,
it lays the foundation of all general knowledge and science,
and without which we could never attain anything beyond
the mere knowledge of individuals, without the possibility
of drawing one general conclusion. Our first acquaintance
is with individuals ; among a number of individuals, as where
man is the subject, is observed a great degree of similarity
in their make, powers, faculties and dispositions. They
differ indeed as individuals, but abstracting from that differ-
ence by which individuals are distinguished, it is perceived
that what is predicable of any one, is predicable of each and
of all. From a view of the intimate analogy and associa-
tion of all in which the individuals agree, the mind is im-
pressed with the notion of a common nature — an abstract
whole ; or, if I may use the expression, an abstract indi-
viduality, in the united conception of the individuals, and
is able to draw general conclusions, and lay down general
principles, without bringing any particular individuals, or
succession of individuals into view. Other individuals arc
35
278 APPENDIX.
observed differing from the first in many essential qualities,
but having a great degree of similarity, an equal analogy
among themselves. Take the instance of sheep in the brute
creation ; these- will by the same process be associated in
the mind into a distinct group, and so of other individuals
almost -without end. These groups, in regard to a still
higher classification, are denominated species. To enable
us to converse and reason with clearness in anything con-
cerning these species, Ave give to each a distinct and appro-
priate name. This name, from habitual use, becomes in
conversation, and even in the mind, the representative of its
particular species, and has, by some sects of metaphysicians,
been held to be the very essence of its species. It is fur-
ther perceived, that there subsists a general analogy between
several of these species, notwithstanding the difference of the
individuals of which they are severally composed. As be-
tween those already mentioned, the circumstance of their
having animal life in common. From this general analogy
the mind refers them to and associates them into a further
class, which, in respect to the species, is called a genus or
kind. Thus all the species will be grouped into general
kinds, according to the respective analogies apprehended by
the mind. The same process is carried on, the number
contained in each decreasing as we ascend, until, as far ;is
the human mind can extend, it embraces the whole universe.
This may be called the system of the universe.
A similar process is carried on with similar results — a
systematic classification upon all subjects with which the
mind is conversant, whether it be physical or moral, mate-
rial or intellectual, or of a mixed or complex nature. We
APPENDIX. 279
are not, however, to suppose that the mind is always con-
scious of exertion in forming these associations. In the
early stages and common occurrences of life it appears to
be an impression on the mind, rather than the effect of
any immediate exertion. Sometimes, indeed, when, from
any circumstance, it is doubtful to what class a subject ought
to be referred, the discriminating powers of the mind are
exerted, as also in attempting an accurate arrangement for
scientific purposes. Upon the whole, it very nearly resem-
bles what is usually denominated instinct. It must be con-
sidered as it regards man, as one of those adaptations of
the being to its situation and end, so conspicuous in all the
works of the Creator. It is one ■ of those things, without
which man could take no one step in moral or physical rea-
soning, or direct his actions to the attainment of any end
whatever. The science of law is a civil and moral sci-
ence ; the science of the modes and rules for administering
justice in a society of moral beings.
Whoever examines the English law, as a science, will
find it formed into a system in the same manner as has
been the case with other systems. The lowest and most
minute divisions answering to individuals ; those grouped
into heads answering to species, and these again into larger
divisions, ansAvering to genera; and so on, ascending until
it embraces the whole, closely and firmly united, and distin-
guished by their respective analogies. In the study of this
science, as in all others, it is necessary, first, to take a gen-
eral view of the system ; to obtain a knowledge of its divi-
sions and their distributions, the leading rules and axioms ;
in a word, to obtain a good knowledge of its elements. All
280 APPENDIX.
this the attentive student Avill find in the volumes of Black-
stone, -which, as an elementary treatise, has not been sur-
passed in any science. The next Btep proper to betaken
by the students is, to proceed analytically; to begin with
one branch, and the minor divisions of that branch, to
make himself fully master of it ; then, and not till then, to
proceed to another branch, until he shall have encompassed
within his knowledge the whole system complete. In his
coarse of reading, it is indispensable for him, if he wishes
to make proficiency, to turn to all the cases and authorities,
and to examine them for himself; not merely to find the
conclusion and point of the authority, but, if possible, to
make himself master of the arguments and reasons of the
author or judge, which were relied upon as leading to that
conclusion.
Here it is necessary to observe, that the reasoning in the
application of precedents is wholly analogical. The whole
force of the authority depends on the strength of the anal-
ogy. It is therefore necessary that the student should en-
deavor, as he proceeds, as much as possible to acquire a
clear and distinct perception of the analogy, in all and every
part of the law ; that he may be able, at a glance, to
measure, if I may use the expression, the distance or prox-
imity and direction, and to estimate its force. Lord
Mansfield observes, in effect, in the case of Jones v.
Randal, that the great use of precedents is to illustrate
principles, and to give them a fixed certainty ; without
analogy, they can afford no possible illustration. To any
one who has no perception of the analogy, precedents can
exhibit nothing but an incoherent, indigested and heteroge-
APPENDIX. 281.
neons mass of individual cases, leading to no conclusion,
and affording no grounds of decision. A lawyer who, as
sometimes happens, has been inattentive to analogy, misled
by mere similarity in a word or expression, will not unfre-
quently produce, as an authority, a case entirely foreign, or
which may even conclude against his argument. Every
student should therefore labor to acquire a ready and clear
discernment upon this subject.
I shall conclude with one observation more. Let the
student not content himself with merely learning to recollect
or repeat the arguments and reasons which he has met with
in reading, as the arguments and reasons of others ; but let
him endeavor so to penetrate, understand and appropriate
them, that they may appear to his mind to be exclusively his
own. The former is mere memory ; the latter only is
knowledge.
No. V.
ON THE RIGHT OF PROPERTY.
LECTURE IV.
LECTURE FOURTH.
Oi-r present inquiry will be, whether the right of pro-
perty, so much the object of all laws, that right which a man
claims to the exclusive possession and enjoyment of any sub-
ject, be derived from the laws of nature, or whether it origi-
nate in the positive laws of society.
Judge Blackstone, in the beginning of the second book
of his Commentaries, has treated of the subject of property,
but his attention was wholly taken up with the mode of ac-
quisition, the legitimate mode in which private property
might have been first separated from the common mass.
He takes for granted that the right of property is not a natu-
ral, but a civil right ; that it has its origin in the positive laws
of society. His learned annotator, Mr. Christian, is dissatis-
fied with this opinion. He asserts, that there is a law of
property, which nature herself has written upon the hearts
of mankind : that the notion of property is universal, and is
suggested to the mind of man by reason and nature, prior to
all civil institutions. He has shown the theory of Locke,
who derives the right of property from the personal labor of
the individual, bestowed upon the thing, in separating it
3G
286 APPENDIX.
from the common mass and preparing it for use ; and of
Grotius and Puffendorf, who make the right of property de-
pend on a tacil agreement for the separate use and enjoy-
ment, to be wholly unsatisfactory, li is to be regretted,
that he has not given some further explanation, of which he
■was so capable, and shown how and why it is 1o be referred
to the law of nature. As he has very justly observed, it is
of great importance that moral obligation and the rudiments
of law should be referred to true and intelligent principles.
"What the learned annotator has omitted, probably from the
circumscribed limits of an annotator, I shall endeavor to
supply.
In the physical world Ave discover, in certain relations and
combinations of matter, or physical bodies, certain conse-
quent results or effects. Having learned by repeated expe-
rience of ourselves and others, from common experience,
that the same effects are constantly and regularly exhibited
by the same matter or physical bodies, placed in the same
relation and combinations, we say it is natural that the
effects are, in such case, produced according to a law of
nature. In many instances, as in mechanics, that such will
be the effect produced by a certain combination of matter,
is a subject of mathematical demonstration. But we see,
and can only see, and describe the matter, its relations,
combinations, modes of operation, and the effects produced,
and here we must stop. Why such should be, and uni-
formly be the effect, we can never explain; we can only
refer it to the constitution of nature, as established and or-
dained by the great Author. It is the same in the moral
world. The subjects are indeed different, and so are the
APPENDIX. 287
relations and the results ; these are moral, not physical :
they are also discerned by a different faculty, a moral per-
ception, a faculty of the mind by which it perceives moral sub-
jects, relations, and results. When an individual is placed
in a certain situation, that of a parent, for instance, in this
situation he perceives certain moral relations subsisting be-
tween him and the child, from which he perceives to result
certain moral duties. He finds that all others have the same
perception of the same relation and its results ; that it is
common to man. It is perceived, or rather felt, that these
duties are obligatory ; hence it is considered a law, a law of
nature, a moral law. The former which w r e mentioned are
the result of physical relations and combinations, this of
moral relations ; that a law of matter, this of mind ; that of
physical necessity, this of moral obligation ; that we conceive
to exist, without intelligence or consciousness in the subject,
this cannot exist without' intelligence and consciousness.
Further, the latter exists in social relations ; exclude social
relations, and moral obligation is excluded. For what can
be the moral obligation of a being, in other respects like
man, .placed in total exclusion from all relation to any sen-
tient, intelligent being, connected with objects and beings
merely physical ? Certainly it is a thing not easily to be
conceived. Social, intelligent beings are the only subjects,
and principal objects of moral law. I do not say the only
objects, because I would willingly extend it to all sentient
beings. How do we determine what a moral law is ? Cer-
tainly from a common perception. Suppose a being, formed
in other respects like man, but never endowed with the
faculty of moral perception ; to such a being there could be
288 APPENDIX.
no moral law, no moral obligation. In any class of moral
relations, however complicated, the perception of the result
is as simple as that of unity. Jt cannot be communicated to
any one who has not a capability of the same moral percep-
tions, when the same moral relations arc presented to view.
So to present them, is the great business of moral instruc-
tion ; the result must be referred to the common perception,
or as some writers have expressed it, to the common sense
of mankind.
We are now prepared to inquire, on what original foun-
dation rests the right of property. Whether it be recog-
nized by the natural law, or originates solely in civil institu-
tions. Every one, attending to the operations of his own
mind, in certain circumstances, perceives between himself
and some external objects, certain relations from which re-
sults to his mind a right — a perception that the thing is
his — a right of property. He perceives in 'like circum-
stances the same relations between another person and cer-
tain other objects, with the same result — a right of property,
which may be expressed, an exclusive right of dominion in
and over the thing or subject contemplated. He finds also
that the perception is common and universal ; that all man-
kind, although it may be a question whether the relation has
arisen in a particular case, and under certain circumstances,
agree in the general result. If what has been before ob-
served concerning the origin and proof of physical and moral
laws, be correct, the right of property is found to stand on
the same foundation, for proof of its existence, in natural
law, as any moral right or duty whatever. It is true it
seems not to be a law of physics ; it seems not in itself a
APPENDIX. 289
moral law, but it has an important place in a very extensive
class of moral relations, from which moral duties result — in
all those cases in which the maxim applies, Sic utere tuo ut
alienum non Icedas, and do good to those who have need,
according to your means.
Natural law arises from the constitution of man, as or-
dained by his Creator, and from the relations in which he
has seen fit to place him to other beings and things. It
must, therefore, be adapted to the nature of social man, and
tend generally to his happiness. General utility is the end,
and the final, though not, I apprehend, as some have held,
the efficient cause of social rights and moral obligation. If
brought to this test, the natural law, in which is founded the
right of property, will be found not only generally useful to
social man, but absolutely necessary. It will be found in
the most simple, rude state of society, necessary to the sub-
sistence of the individual, and still more necessary, in any
advanced stage of improvement. I shall add with some
corrections, a part of what I wrote many years ago on the
same subject. As already observed, the relation from which
results the right of property seems not to be a moral relation,
nor wholly a corporeal relation of parts. The relation be-
tween me and the table on which I write at present, by
which it is mine, seems to have nothing of a moral quality in
it, without the intervening relation of another person. It is
doubtless very simple ; it has never been defined, otherwise
than by the mode of acquisition ; as the price of land is, As
he bought it, it was given to him, it came to him by descent.
Indeed to simple objects, whether of substances or relations,
names are necessary, but definitions are useless and imprac-
290 APPENDIX.
ticable. Nature has denied them in every instance. The
discovery, therefore, of a simple object, a simple relation, or
of a result, which is always simple, is not from reasoning, but
from intuition. This perception of the relation and right of
property, though at lirsi very limited, a mere capability, and
like the other faculties subject to a course of improvement,
is discovered in the early stages of life. The child has
clearly a sense of the right of property, though very little, if
any, of the modes of acquisition. He appears, before he is
capable of consequential reasoning, as clearly to understand
his right to his rattle-box, as the adult to his horse, purchased
With his money or his labor ; and vindicates his right of
property with as much apparent consciousness of that right.
The perception, however, extends little further than his own
right ; it can hardly be said to extend to the rights of others.
Many brute animals to which Ave have denied the power of
reasoning and investigation, appear evidently to have some
sense of property. Give a bone to a dog, he takes it boldly
as his own ; let another attempt to rob him of it, he stands
boldly in its defence, with a seeming consciousness of his
right of property, Avhile the aggressor approaches with an
apparent consciousness of his guilt. The ox claims his right
to his stab 1 , and the dog to his wonted corner. Instances
have been given of a sense of this right, in the ape, the
beaver, the stork, and some other animals, which have not
fallen under my observation. I therefore omit them.
It would be strange if Providence had been less kind to
man than to the brute creation — man, to whom property is
so extensively useful, and which, in a state of society, he-
comes the object or instrument of most of his moral actions.
APPENDIX. 291
It is to be observed, that the perception is only of the right
or the relation which constitutes property, but extends not to
the mode of acquisition, any farther than they contribute to
the relation. These modes, according to the state of society,
may be very various. In the early stages of society, or
what is frequently called a state of nature, the objects of
property are almost as few, and the modes of acquisition
nearly as simple as among many species of the brute crea-
tion. The objects of property are those things only which
are necessary to support existence. The modes of acquisi-
tion mostly confined to prior occupancy, and some trifling
productions of labor. The simple modes of gift and ex-
change are soon added. In the progress of society, men
learn to apply to their use, either for their necessities or
pleasure, most of the numerous productions of nature. By
the assistance of art, as the powers of the mind expand,
they vary and multiply these without end. In proportion as
men enlarge their views of what is useful or agreeable, the
hoarding appetite gains strength ; they become eager of the
present, and provident of the future. The objects of pro-
perty become equally numerous with the objects of desire.
In such a state the modes of acquisition are greatly multi-
plied, and are made the subject of a great variety of laws
and regulations. The whole business of property now ap-
pears to be an artificial system ; but the modes of acquisition
and the means of protection only are the subjects of artificial
regulations. The right itself of property, as already shown,
is founded in the law of nature, and is antecedent to all civil
regulations ; the modes of acquisition serve only to bring
the subject of property within ihe right.
292 APPENDIX.
Here let me observe, from this view of the right of pro-
perty, we clearly discover that it is not, as many writers have
asserted, ;i creature of the civil law only. The position,
that, on a dissolution of government, all property is annihi-
lated, and that every revolution of government, or radical
change, is destructive of the right of property, is, by no
means, just. Civil protection only is lost, the security of
enjoyment is endangered, the right itself founded on the law
of nature, remains unchanged. Without this perception,
which I have so often mentioned, the right of property would
be but weakly guarded by the moral sense. Were it a dis-
covery of reason, a conclusion from its convenience in so-
ciety only, it must want a considerable maturity of the rea-
soning powers ; it must be wholly unattainable to children ;
and certainly no person until he had, in one way or another,
attained the perception, would feel any obligation of re-
straint. Force alone could prevent a constant violation of
the right of property. Prohibitory laws would be considered
as so many arbitrary impositions. How much better is the
plan of Providence. Who can forbear to admire the wisdom
displayed by the Author of our being, in the adjusting of the
nature of man to that social and civil state, which he has
ever found necessary not only to his happiness, but to any
tolerable existence in life ? Deity has implanted in man the
germ of every necessary qualification, and left to him the
cultivation ; more, it is probable, could not be indulged to a
moral agent.
No. 6.
OBSERVATIONS
ON
MR. CALHOUN'S EXPOSE OF HIS NULLIFICATION
DOCTRINES,
PUBLISHED IN THE RICHMOND WHIG.
37
OBSERVATIONS.
We understand Mr. Calhoun to hold, 1, That the prin-
ciple contended for by South Carolina (nullification,) was
at the bottom of the contest between the federalists and re-
publicans, (anti-federalists.)
2. That the national government is a compact between
separate sovereignties, (the states,) to which the whole
people were not parties.
3. That these separate sovereignties have the right, each
for itself, to judge of any violation of that compact by the
general government ; and on this principle depends the
security of liberty.
4. That the supreme court of the United States is not
constituted a common judge between the parties. It has no
political jurisdiction, and besides, from the manner in which
it is constituted, it cannot be considered as an impartial tri-
bunal in cases of this nature.
5. That in all free governments each separate interest
must have a right to protect itself ; that in questions bearing
on those interests, the majority, as such, have no right, that
is, of absolute control.
296 APPENDIX.
0. That a slate may peaceably and efficaciously resort
to the right of sell-protection, and may, within the limits of
its jurisdiction, nullity any law of the general government,
bearing hard on the particular interests of the state; still
remaining subject to all the laws of that government, except
the law so nullified.
7. That the tariff* is unjust, unconstitutional, and oppressive.
8. That the period of the payment of the national debt is
the crisis for which the southern states will wait, expecting
a modification or total repeal of the tariff laws.
9. That the next session of congress will be the only time
for modifying the tariff", &c.
10. He does not define the remedy to be adopted if the
tariff be persisted in, but leaves us to suppose it will be
nullification.
11. He is indisposed to resort to any remedy by state
authority, until the crisis shall arrive.
12. He declares himself a friend to manufactures, and
disposed to give them every incidental encouragement.
It is, in some sense, true, that the principle for which
South Carolina contends, and which is here advocated by
Mr. Calhoun, — the right of a state to nullify a law of the
general governmant, — was at the bottom of the contest be-
tween the two great parties, which originated at the time of
the formation and adoption of the federal constitution,
then denominated federalists and anti-federalists. The anti-
federalists, who were the minor party in the general conven-
tion, objected to the powers proposed to be given to the
general government, because they said those powers would
APPENDIX. 297
not only restrict the sovereignty of the individual states, but,
in some instances, wholly take it away, so that, in future,
instead of being sovereign and independent, they would be
nothing more than corporations subject to the general gov-
ernment, the constitution of which, and all laAvs made in
pursuance of that constitution, are declared to be the su-
preme laws of the land. The same objections, in substance,
were urged, in the conventions of the several states, by those
who were opposed to the adoption of the constitution. It
was agreed by those who were in favor of its adoption, that
the constitution, if adopted, would take from the individual
states the independent national sovereignty, and vest it in
the general government for the whole nation ; that there
were provided certain limitations upon the internal sove-
reignty of the several states, which, it was believed, the
general good required, — limitations clearly expressed, and
sufficiently marked ; leaving to each state y in everything
else, the whole internal sovereignty , and that unassailable as
far as it could be guarantied by that constitution. After
the adoption of the constitution, and under the presidency
of Washington, those who were opposed to the adoption of
that instrument had formed a strong party, both in and out
of congress, at the head of which was Mr. Jefferson. Pro-
fessing to be zealous advocates of state rights, and fearful of
what they deemed the consolidating tendency of the powers
granted by the constitution, they soon became almost indis-
criminate opposers of the measures of government. Those
who have had a personal acquaintance with the political
transactions of those times, or have read with attention the
debates in congress, and the publications of that day, will
298 APPENDIX.
be convinced that the party contended, for the most part, for
reducing the powers of government within the limits which
they would themselves have prescribed in forming the con-
stitution, without regard to the actual limits prescribed by
that instrument.
This contest, like all contests of a political nature, soon
degenerated into a contest for power, a contest of ambition,
accompanied with all the excitement, the misrepresentations
and virulent abuse, to which political parties usually resort,
so that it may be asserted, with the confidence of truth, that
the prevalence of the party, which brought Mr. Jefferson
into power, was a triumph of ambition, a triumph of party,
not of principle. This will appear very evident to any one,
who will impartially examine the measures pursued by one
party, the Federalists, under the administration of Washing-
ton, and the elder Adams, and the measures pursued by the
other party under the administration of Mr. Jefferson, and
his successors. He will find that the latter have given, at
least, as extended a construction to the constituted powers
of congress, and have pushed their acts as near the verge of
those powers, as did the party of whom they so loudly com-
plained, and whom they succeeded. They indeed suffered
the act, establishing the Bank of the United States, which
they had always condemned as unconstitutional, to expire
by its own limitation. But, finding by experience that it
was highly expedient, or, in the language of the constitution,
that it was necessary and proper, to any economical admin-
istration of the finances, that there should be a bank of tin-
United States, they established another on the same princi-
ple ;i> it relates to the constitutional question, as the former
APPENDIX. 299
bank. The purchase of Louisiana, and the several acts for
laying and enforcing a general embargo, are instances of
constitutional powers taken by construction, and pushed, one
may say, to the extreme point ; and which were held by
very many, among whom were men of the first talents, to be
unconstitutional, particularly the latter, the embargo laws.
The expediency of those laws may well be doubted, but that
they were within the constitutional powers of congress, is, I
believe, now doubted by no discerning jurist, or by any one
deserving the character of a sound statesman. But there
was one act passed during Mr. Jefferson's administration,
that was a gross violation of the constitution. Mr. Living-
ston, now secretary of state, then residing in Louisiana, had
purchased a very valuable tract of land in, or adjoining, the
city of New Orleans ; it was reported to Mr. Jefferson as
being public land, belonging to the United States. Mr. Jef-
ferson, by message, gave this information to congress, and
recommended that a remedy should be provided for the re-
moval of intruders on public lands. On which an act was
immediately passed, authorizing the president of the United
States, on information of such intrusion, to issue his precept
to the marshal of the district or territory, for the removal of
the intruder. On which the president, Mr. Jefferson, imme-
diately issued his precept, and Mr. Livingston was thereupon
put out of possession without trial or inquest. Mr. Living-
ston, considering the act as unconstitutional, and the precept
as illegal, commenced an action of trespass against Mr. Jef-
ferson, in the circuit court of Virginia district. But it failed,
on an objection taken by Mr. Jefferson's counsel, that the
action being for trespass on land, was local, and the land
300 APPENDIX.
not lying in the district of Virginia, it could not be there
tried. Mr. Livingston brought an action for the recovery of
the land in the proper court, and recovered on his title.
This was done by the man and the party who had boasted
that the constitution was saved by them at its last gasp.
Mr. Calhoun states, as a leading principle, that " the gen-
eral government emanated from the people of the several
states, forming distinct political communities, and acting in
that separate and sovereign capacity ; not from all the peo-
ple as one aggregate political community ; that the constitu-
tion of the United States is in fact a compact, to which each
state is a party in the character already described, and that
the several states or parties have a right to judge of its in-
fractions, and in case of a deliberate, palpable, and danger-
ous exercise of powers not granted, they have a right, in the
last resort, to use the language of the Virginia resolutions, to
interpose for arresting the progress of the evil."
It is true that in forming, or rather in executing the com-
pact establishing the general government, the people of the
several states acted separately, each for themselves and their
respective communities ; still the binding force of the act de-
pended on the concurrent acts of the people of all the states
in their separate conventions. The people in no instance
acted in the capacity of that sovereignty, which by llieir stale
conventions, they had entrusted to their then respective gov-
ernments, as organized. They acted in the capacity of thai
primitive sovereignty, by which they had formed their seve-
r;il state constitutions, retaining the power of altering and
modifying ihose constitutions, in each case, as they should
find the public good to require. The Federal compacl thus
APPENDIX. 301
ratified and executed, by the people of each state, became a
mutual compact between all the people of the United States,
binding upon themselves and their several state governments.
In strictness of speech, the people were the original parties,
and their respective states, their authorized agents, so far as
empowered by their several state constitutions, and the con-
stitution of the general government. In this character, and
so far, the separate states, each acting through the organ of
its own government, may with propriety be considered as
parties to the federal compact.
According to the principles of our political institutions, it
was necessary that the constitution of the general govern-
ment should be submitted, for ratification, to the people of
the United States, because the acts and laws of that govern-
ment were intended to operate, and to be carried into effect,
not upon the states as such, but directly upon the people
themselves. It was also necessary that it should, for that
purpose, be submitted to the people of each, separately and
distinctly, because it was necessary to any beneficial opera-
tion of that government, that very considerable alterations
should be made in all the existing state constitutions, and
that, as far as it related to that government, they should be
reduced to a uniformity. This was proposed to be effected
by provisions inserted in the proposed constitution of the
general government, which being adopted and ratified by
the only competent authority, the sovereign people of each
state, by themselves, all the necessary alterations, modifica-
tions, and limitations of power under the state constitutions
would be effected, and the requisite uniformity produced.
But the people of one state have no possible right or power
• 39
302 APPENDIX.
to act with the people of another state, in forming, altering,
or amending their constitution. It was therefore necessary,
that the people of each state should act by themselves.
Now if the people of the several states had, as a prelimi-
nary stop, made the same alterations in their several state
constitutions, as were effected by the constitution of the
general government ; and then the people of each state had
sent their delegates to a general convention, with full pow-
ers for that purpose, and such convention had ratified the
constitution of the general government, this act of ratifica-
tion would have been the act of the sovereign people of each
state, equally binding on themselves, and their respective
governments ; and the states would have been parties to the
compact in the same sense that they now are, and no other.
It is not in the power of human ingenuity to find or make
an available distinction in the result.
In fact, however, the great question is, not whether the
individual states are in any sense parties to the compact, but
what character they sustain as parties. The writer seems
to have been sensible of this ; he has, therefore, as well as
those whom he cites as authority, without hazarding any
proof or argument, assumed that the states among them-
selves, and in their relation to the general government, sus-
tain the right, the power and character of independent sove«
rcignties. Hence is claimed the right of each to judge for
itself. If what is here assumed be true, it is also true, that
in questions arising between one Btate and another, and
between a state and the general government, no common
judge can be authoritatively interposed.
To come to a proper decision on llns subject, it is neces*
APPENDIX. " 303
sary to examine it a little more at large. This right of a
state, under our government, to judge definitely for itself, of
the constitutionality of an act of congress, has been gen-
erally, if not universally, claimed by its advocates as a right
reserved to the state, by the 12th article of amendments to
the constitution, which is in these words : — " The powers
not delegated to the United States, by the constitution, nor
prohibited by it to the states, are reserved to the states re-
spectively or to the people." Now the grant of a power
contains, not only the power literally expressed, but by una-
voidable inference, all those subordinate powers, without
which the power expressed could not have any effect, or
the effect manifestly intended. So in regard to prohibited
powers. The prohibition extends not only to those powers,
which are expressly prohibited, but such as are compre-
hended by necessary inference, or, which remaining, would
defeat the prohibition. Those powers are also in this view
to be considered as prohibited which are exclusively dele-
gated, or being delegated, from their nature, or the nature
of the subject, cannot be exercised both by the government
of the United States and the state governments at the same
time.
This is a sound and universal rule of construction, under-
stood and acted upon by those who proposed, and those
who adopted, the constitution and the amendments. In-
deed, the amendment is merely declaratory of the con-
struction originally intended, and Avell understood. It was
inserted merely from abundant caution. Keeping in mind
this rule of construction, let us inquire whether the right of
a state to pass, for itself, a final judgment on the constitu-
304 AT P EM) IX.
tionality of a law of congress, which necessarily implies the
sovereignly and independence of the state, from which alone
it can be derived, is one of the rights reserved in tin- amend-
ment above recited. If this right, and the power from which
it must have been derived, are included in the reservation,
the power must have existed in the several states at the
time of the compact, and by that compact have not been
prohibited to the states, either expressly or by unavoidable
inference, agreeably to the rale of construction laid down.
That an equivalent power existed in the several states under
the old confederation, cannot and need not be denied. It
was the result of that independent sovereignty then possessed
by each state. The old confederation was not a national
union, but a federal connection, — a league between thirteen
sovereign, independent states, — or we may with propriety
say, nations, by which they agreed to submit the manage-
ment of their common, concerns to a congress, the members
of which were appointed by each state, and in whose de-
liberations each state had an equal voice. Under that confed-
eration there was no establishment of a judiciary to be a
common judge between the parties ; no efficient executive
power to carry their measures into effect. The ordinances
and acts of that body, therefore, notwithstanding any style
of authority they might assume, were, in all things relating
to the states, merely recommendatory of certain measures
which could not be carried into effeel without the concurrent
act of each and every state in whom resided the judiciary
and only efficient executive powers. A lull conviction from
experience of the utter inefficiency of that government, if it
deserved the name of government, which dissolving in its
APPENDIX. 305
own weakness, and threatening general anarchy or dissolu-
tion, even of the state governments themselves, led to the
formation and adoption of the present constitution of the
United States. .It becomes, then, an important question,
how far and to what purposes that independent sovereignty,
which previously existed in the states severally, was, by the
adoption and ratification of the constitution, transferred by
the sovereign people of each, to the general government,
and its exercise prohibited to the several states, with certain
limitations on their internal sovereignty, which it was be-
lieved the general and national interests required. Mr. Cal-
houn has cited several authorities in support of his assump-
tion of state rights, but has not referred, as I think, in a sin-
gle instance, to the authority of the constitution, which, as
he considers the right claimed, as a right reserved to the
states in the_ amendment recited, and therefore a constitu-
tional right, ought to be considered paramount to all others.
Before I examine his authorities, I shall recite from the con-
stitution the powers delegated to congress, the limitations
and modifications of those powers, and the prohibitions and
limitations imposed on the powers of the several states.
From these, and these alone, can we learn whether the
power, from which alone the contested state right can be
derived, could possibly remain to be a subject of reservation.
The principal powers delegated to congress are contained
in the first article of the constitution, as follows :
Sec. 8th. The congress shall have power to lay and col-
lect taxes, duties, imposts, and excises ; to pay the debts,
and provide for the common defence, and general welfare of
the United States ; — to borrow money on the credit of the
306 APPENDIX.
United States ; — to regulate commerce with foreign nations,
and among the several states, and with the Indian tribes ; —
to establish an uniform rule of naturalization, and uniform
laws on the subject of bankruptcy, throughout the United
States ; — to coin money, regulate the value thereof, and of
foreign coin, and fix the standard of weights and measures ;
— to provide for the punishment of counterfeiting the secu-
rities and current com of the United States ; — to establish
post-offices and post roads ; — to promote the progress of
science ; — to constitute tribunals inferior to the supreme
court; — to define and punish piracies and felonies, com-
mitted on the high seas, and offences against the law of na-
tions ; — to declare Avar, grant letters of marque and repri-
sals, and make rules concerning captures, both on land and
water ; — to raise and support armies ; — to provide and
maintain a navy ; — to make rules for the government and
regulation of the land and sea forces; — to provide for
calling forth the militia to execute the laws of the Union, to
suppress insurrections and repel invasions; — to provide for
organizing and arming the militia, and for governing such
part of them as may be employed in the actual service of the
United States, reserving to the states respectively the ap-
pointment of the officers, &c. To make all such laws as
shall be necessary and proper for carrying into execution
the foregoing powers, and all other powers vested by this
constitution in the government of the United States, or any
department or officer thereof.
Sec 10th. No state shall enter into any treaty, alliance or
confederation ; grant letters of marque and reprisal ; coin
money, emit bills of credit, make anything but gold and
APPENDIX. 307
silver coin a tender in payment of debts ; pass any bill of
attainder, ex post facto law, or law impairing the obligation
of contracts, or grant any title of nobility. No state shall,
without the consent of congress, lay any imposts, or duties
on imports or exports, except what shall be absolutely ne-
cessary for executing its inspection law, &c. No state shall,
without the consent of congress, lay any duty of tonnage,
keep troops or ships of war m time of peace, enter into any
compact or agreement with another state, or with a foreign
power, or engage in war unless actually invaded, or in such
imminent danger as will not admit delay.
The second article provides for an executive power.
Sec. 1st. The executive power shall be vested in a presi-
dent of the United States of America. He shall hold his
office for four years. (The remainder of the section pro-
vides for his appointment, together with that of the vice
president.)
Sec. 2d. The president shall be commander-in-chief of the
army and navy of the United States, and of the militia of the
several states when called into the actual service of the Uni-
ted States. And shall have power to grant reprieves and
pardons for offences against the United States, except in
cases of impeachment. He shall have power, by and with
the advice and consent of the senate, to make treaties, pro-
vided two-thirds of the senators present concur. He shall
nominate, and, by and with the advice and consent of the
senate, appoint ambassadors and other public ministers and
consuls, judges of the supreme court, and all other officers
of the United States whose appointments are not herein oth-
erwise provided for, and which shall be established bv law.
308 APPENDIX.
Sec. 3d. He shall from lime to time give to congress in-
formation of the state of the union, &c. &c. He shall re-
ceive ambassadors and other public ministers, and shall take
care that the laws be faithfully executed, and shall commis-
sion all officers of the United States.
The third article provides for a judiciary.
Sec. 1st. The judicial power of the United States shall be
vested in one supreme court, and in such inferior courts as
congress may, from time to time, ordain and establish. The
judges, both of the supreme and inferior courts, shall hold
their offices during good behavior, and shall, at stated times,
receive for their services a compensation, which shall not be
diminished during their continuance in office.
Sec. 2d. The judicial power shall extend to all cases in
law and equity, arising under the constitution, the laws of
the United States, and treaties made, or which shall be made
under their authority. In all cases afFecting ambassadors,
and other public ministers and consuls ; to all cases of ad-
miralty and maritime jurisdiction ; to controversies to which
the United States shall be a party ; to controversies between
two or more states, — between a state and citizens of an-
other state, — between citizens of different states, — between
citizens of jLhe same state claiming lands under grants of
different states, — and between a state, or ihe citizens there-
of, and foreign states, citizens or subjects. But, by an
amendment to the constitution, it is provided, thai the judi-
cial power shall not be considered to extend to any suit in
law or equity, commenced againsl one of the United States
by the citizens of another state, or by the citizens or subjects
of any foreign state. In all eases affecting ambassadors,
APPENDIX. 309
other public ministers and consuls, and those to which a
state shall be a party, the supreme court shall have original
jurisdiction ; in all other cases before mentioned, the supreme
court shall have appellate jurisdiction, both as to law and
fact, with such exceptions and under such regulations as con-
gress shall make.
Art. 4th, sec. 1st. Full faith and credit shall be given in
each state to the public acts, records and judicial proceed-
ings of every other state, and the congress may, by general
laws, prescribe the manner in which such acts, records, and
proceedings shall be proved, and the effect thereof.
Sec. 3d. New states may be admitted by congress into
this Union ; but no new state shall be formed, or erected
within the jurisdiction of any other state; nor any state be
formed by the junction of two or more states, or parts of
states, without the consent of the legislatures of the states
concerned, as well as of congress.
Sec. 4th. The United States shall guaranty to every state
in this Union, a republican form of government, and shall
protect each of them against invasion ; and on the application
of the legislature, or of the executive when the legislature
cannot be convened, against domestic violence.
Art. 5th. This constitution and the laws of the United
States which shall be made in pursuance thereof, and all
treaties made, or which shall be made, under the authority
of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby ; any-
thing in the constitution or laws of any state to the contrary
notwithstanding.
The senators and representatives before mentioned, and
39
310 APPENDIX.
the members of the several state legislatures, and all execu-
tive and judicial officers, both of the United States, and of
the severa] stales, shall be bound by oath to support this
constitution.
On a fair, open and candid examination of the articles
above recited, it cannot be denied that the sovereign people
of the several states, each acting for themselves, bill with a
reciprocal view to the acts of all, did, by the ratification of
that solemn covenant, the constitution of the United States,
delegate to the general government, all those powers in
which the independent sovereignty of a state or nation, in
the common, as well as the technical understanding of the
term, consists ; and did further prohibit to the several states
the exercise of those powers, and even of some other speci-
fied powers, the exercise of which by the several stales
might obstruct the national union intended, and the recipro-
cal enjoyment of national privileges, by the citizens through-
out the whole. There is also by the same instrument
established, an executive power, charged with the faithful
execution of the laws, and a judicial power to be vested in a
supreme court, and in such inferior courts as congress may
ordain and establish, with a provision for rendering the
judges as independent and impartial as could be devised by
human wisdom. This judicial power is expressly extended
to all cases in law and equity, arising under the constitution
and laws of the United States, and treaties made under their
authority; and among other things, to controversies to
which the United States shall be a party — to controversies
between two or more states, &c.
Here we find a tribunal appointed to be a common judge
APPENDIX. 311
in all constitutional questions that may arise between the
parties, expressly including, among others, the United States
and the several states, as such parties. Nor is there any
case, so arising, excepted from the authority of its decisions.
And when Ave find it further declared by the same compact,
and by the same competent authority, the sovereign people,
that the constitution which embraces all its provisions in
every department, and all laws made in pursuance thereof,
shall be the supreme law of the land, binding on the judges
of every state, notwithstanding anything in the constitution
or laws of any state to the contrary ; and that, not only the
senators and representatives in congress, but the members of
the state legislatures, and all executive and judicial officers,
both of the United States and of the several states, shall be
bound by oath or affirmation to support the constitution, —
it would appear utterly impossible, that any rational being,
capable of understanding what he reads, should maintain
that each state in the Union has a constitutional right to
judge for itself definitely of the constitutionality of an act of
congress, and if so judged to be unconstitutional, to suspend
its operation within the jurisdictional limits of the state.
And yet such is the opinion maintained by Mr. Calhoun.
He has not in any part of his expose examined the powers
delegated to the general government, nor the powers prohib-
ited to the states, by the constitution of the United States,
declared to be the supreme law over all the states, repeal-
ing, in effect, and nullifying every claim of right, every grant
of power in their several constitutions, conflicting, or not
consistent with the provisions of that instrument. He has
gratuitously assumed the power, and the right as remaining
312 APPENDIX.
in the several states, and therefore reserved to them by the
amendments to the constitution. Instead of the constitution,
he has reposed on several authorities, which, from their
weight of character, and the reasonings accompanying them,
he considers to be irresistible. Although I think the consti-
tution alone, when fairly examined, conclusive upon this
subject, I will nevertheless proceed to a fair and full exam-
ination of his authorities. Let us then consider, first,
what weight ought to be conceded to them as authorities,
when we consider the circumstances and situation of the
authors themselves ; in doing which, we may briefly con-
sider some opposing authorities, — and, secondly, consider
the force of their reasonings, and the justness of their con-
clusions.
The origin of the two parties, and the causes of their hos-
tility toward each other, has already been mentioned. To
these causes were soon added others, of a still more exciting
nature. Not long after the organization of the government
of the United States under the federal constitution, the
French revolution broke out. At its commencement it was
hailed by all parties in this country as the dawn of liberty to
Europe, and the commencement of a new and glorious era,
in the progress of which they beheld, in imagination, the
downfall of tyrannical and despotic governments, and the
people and nations of that quarter of the globe restored to
thek rights, to the enjoyment of happiness under libera]
institutions, all tending to the amelioration of the whole
human race. But the scenes of anarchy and blood thai
ensued, the atrocities enacted by the leaders, who succes-
sively fell under the guillotine, to make room for their more
APPENDIX. 313
successful, but not less atrocious rivals, soon darkened the
prospect, and disgusted, very generally, the federal party,
then constituting a powerful majority ; while the anti-federal
party, who soon assumed the name of democratic, and
afterwards that of the republican party, fraternized with the
French revolutionists, and either excused or justified all
their atrocities. And when, soon after, the French nation,
having formed somewhat of a more regular government,
had become involved in war with the great powers of
Em-ope, in violation of existing treaties, as well as of the
known law of nations, let loose their cruisers upon the com-
merce of unoffending neutrals, of which the United States
then had the greatest share, and were ready to sweep it
from the ocean, that party still maintained their predilec-
tions, still excused or justified all those depredations, by
which our merchants were robbed of millions. Our govern-
ment remonstrated against these measures. The French
government treated their remonstrances with contempt, and
their ministers, sent to negotiate on the subject, were treated
with neglect or contumeliously dismissed. Whereupon con-
gress determined to take measures for protecting their
citizens and their commerce, and placed the nation in a
state of war with France. Both parties were now in the
highest state of excitement, and the nation was inundated
with violent and inflammatory publications, issuing from the
presses on each side against their opponents. The presses
of the republican party were daily uttering the vilest calum-
nies, replete with the most unfounded falsehoods, against the
majority in congress and the principal functionaries of the
government, especially against the president, Mr. Adams.
314 APPENDIX.
At this crisis, congress passed two acts, which added much
to the excitement of parties. The one, enabling the presi-
dent to send suspected aliens out of the country, commonly
called the alien act ; the other, an act for punishing any
person who should publish, by Writing, any libellous matter
against the president, for any act done in the execution of
his official duties, commonly called the sedition law, with a
provision that any person prosecuted under the act, should
have the liberty and right to prove, in his defence, on trial,
the truth of the matter published. The latter act the more
exasperated the party in opposition, because they foresaw
that its penalties would fall Avholly upon the writers and
presses on their side ; they therefore denounced it in no
measured terms, as an usurpation of powers not granted —
a palpable violation of the constitution, by abridging the free-
dom of the press, so solemnly and expressly guarantied by
that constitution. A large majority of the people of Vir-
ginia, and consequently of their legislature, were zealously
devoted to the party in opposition, and, indeed, were the life
and soul of the party at that time. Such was the situation
of the authors, and such the occasion of those resolutions,
both in Virginia and in Kentucky. In the passage of the
two acts above mentioned, according to their construction,
they found the case of that deliberate, palpable, and dan-
gerous exercise of a power not granted, in which it is as-
sumed the several states, not the people, are the parties to
the constitutional compact, and have ;i right, as such, to
judge, and " to interpose for arresting the progress of tin-
evil, :iii(l lor maintaining, within their respective limits, the
rights and liberties appertaining to them."
APPENDIX. 315
These resolutions were communicated to all the other
states. The legislature of Massachusetts replied to them in
full, affirming the constitutionality of the laws in question,
and denying the right of the several states to judge and to
interpose in the manner asserted. Resolutions, in accord-
ance with those of Massachusetts, were passed by several of
the other states, not, as I believe, exceeding three or four ;
others passed the matter over in silence. It will not now be
denied, that those who passed upon these latter resolutions
were equal, in point of talents, to their opponents. At the
same time, it must be acknowledged they were equally in-
flamed with party zeal, equally ambitious of retaining the
administration of the government in the hands of this party,
as were the others for obtaining it for themselves ; simply, in
point of authority, they stand on equal ground. The author-
ity of Mr. Jefferson on this subject is opposed by the same
objections, but which apply to him with augmented force.
He stood unrivalled at the head, and was, in fact, the oracle
of his party ; by them destined to enjoy the first fruit of
their expected triumph, by being elevated to the presidency
of the United States, the great and ultimate object of his
ardent ambition. But let us turn to his opinions. It is well
known to the writer of this, and to all who were personally
acquainted with Mr. Jefferson at the time, that his opinion
upon the unconstitutionality of the sedition law, was in ac-
cordance with that of the Virginia legislature, — if he did
not dictate that opinion, — he held that it was an abridg-
ment of the freedom of the press, and was, therefore, the
assumption of a power, not only not granted, but a power
expressly withheld. Tic also held the alien law to be un-
316 APPENDIX.
constitutional. Thai his opinion on the subject of slate
rights was the same as thai expressed in the resolutions, is
evident from the citations made by Calhoun. Instead of
opposing to these opinions, the opinions of the several judges
of the supreme court, judicially pronounced, I will produce
some of the citizens of Virginia, not less illustrious than Mr.
Jefferson. Notwithstanding the great majority of the oppo-
sition party in Virginia, there was a respectable minority,
who supported the measures and acts of the general govern-
ment, and were wholly opposed to the opinions and doc-
trines expressed in the resolutions of their state legislature,
and, of course, to Mr. Jefferson's opinions on the same sub-
ject. Among others, was the present Chief Justice Marshall,
who was a representative from that state in the second con-
gress, under President Adams's administration; and the well
known Patrick Henry — both eminent for talents and judi-
cial knowledge. The character of Patrick Henry, as a jurist,
stood as high, and his opinion, in all matters, not affecting
party interest, had as much weight as that of any man in the
state, I may safely say more ; certainly more than Mr. Jef-
ferson, who, however eminent as a party politician, and
for his profound knowledge in the law of nations, was not
considered equally eminent as a jurist. Mr. Henry offend
himself as a candidate for election for the succeeding session
of the state legislature, on which occasion he published an
address to the electors of the district, in which Ik 1 freely ex-
pressed his sentiments of the slate of parties, and of their
politics. He gives it as his deliberate opinion, that ihc laws
so much reprobated, were both constitutional, both within ihe
powers delegated to the general government ; that the power
APPENDIX. 317
to remove suspected aliens, in a situation like that then exist-
ing, was a necessary incident of the war power ; that the
sedition law in no wise abridged the freedom of the press,
but applied a wholesome correction to its licentiousness ; and
that congress had the same constitutional power and right to
provide for the punishment of false and slanderous libels on
any official acts of the president, which might have a direct
tendency to impair their due efficiency, as they had to pro-
vide for the punishment of an opposition, by violence, to any
officer of the government, in the legal execution of his au-
thority. He also reprobated the doctrine of state rights, as
assumed in the Virginia resolutions. I will adduce one more
authority, which, in my view, very much weakens, if it does
not wholly destroy Mr. Jefferson's authority, as to the con-
stitutionality of the sedition law — the authority of Mr.
Jefferson himself. In his inaugural address, on entering
upon the second term of his presidency, in March, 1805,
after recapitulating the measures of his administration, he
goes on to say : " During this course of administration, and
in order to disturb it, the artillery of the press has been lev-
elled against us, charged with whatever its licentiousness
could devise or dare. These abuses of an institution, so
important to freedom and science, are deeply to be re-
gretted, inasmuch as they tend to lessen its usefulness, and
to sap its safety. They might, indeed, have been corrected
by the wholesome punishment, reserved to, and provided by,
the laws of the several states, against falsehood and defama-
tion ; but public duties, more urgent, pressed on the time of
public servants, and the offenders have, therefore, been left
to find their punishment in the public indignation. Nor
40
318 APPENDIX.
was it uninteresting to the world, that an experiment should
be fairly and fully made, whether freedom of discussion, un-
aided by power, be not sufficient for the propagation and
protection of truth. " After some observations on the suc-
cess of the experiment, he continues : " No inference is here
intended, that the laws provided by the states against false
and defamatory publications, should not be enforced. He
who has time, renders a service to public morals and public
tranquillity, in reforming these abuses by the salutary cor-
rections of law. But the experiment is noted to prove, that,
since truth and reason have maintained their ground against
false opinions, in league with false facts, the press, confined
to truth, needs no other legal restraint. The public judg-
ment will correct false opinions and reasoning, on a full
hearing of all parties ; and no other definite line can be
drawn betAvecn the inestimable liberty of the press, and its
demoralizing licentiousness."
Mr. Jefferson well knew that there were laws in every state,
either enacted by statute, or adopted from the common law,
for the punishment of libels, affecting characters, public and
private. He also knew that the constitution of each state con-
tained an imperative declaration, of precisely the same force
and effect, though not always in the same words, as in the
constitution of the United States. It is evident, therefore,
that whatever might have been his former opinions, lie now
admitted and approved the distinction, between the freedom
and the licentiousness of the press ; the former of which
could not be abridged, without the violation of an important
constitutional right; but the latter, the licentiousness of the
press, might, and ought to be restrained, by what he calls
APPENDIX. 319
the salutary correction of law. This concession, it is
granted, although it silences* the principal objection, urged
at the time, against the constitutionality of the act, does not
cover the Avhole ground. It was said to be the exercise of a
power not granted, and Mr. Jefferson spoke of it as a power
reserved to the states. Now it is conceded that congress,
generally speaking, have not the power to punish crimes,
merely as moral or civil offences. But the power of con-
gress is necessarily, I may say expressly, extended to the
punishment of all crimes that immediately and injuriously
affect the government, injuriously obstruct its legitimate
measures or impair its efficiency, in carrying into effect any
of its constitutional powers, in any of its departments or
offices.
It is true, the opinion we have just been examining, was
not produced by Mr. Calhoun as an authority ; but as the act
of congress upon which this opinion was expressed, was the
principal occasion of those resolutions, and was chiefly relied
on as justifying the principles which they adopted and sanc-
tioned, its discussion here cannot be considered altogether a
digression.
We shall now proceed to examine the opinions of Mr.
Jefferson, which the writer has introduced, as an authority,
to support his doctrine of state rights. Nor ought we to
omit the manner in which they are introduced. After hav-
ing professed his strong attachment to the union of the states,
he says, " With these strong feelings of attachment, I have
examined with the utmost care, the bearing of the doctrine
in question, and so far from anarchical or revolutionary, I
solemnly believe it to be the only solid foundation of our
320 APPENDIX.
system, and of the union itself ; and that the opposite doc-
trine, which denies to the states the right of protecting then-
reserved powers, and which would vest in the general gov-
ernment (it matters not through what department) the right
of determining exclusively and finally, the powers delegated
to it, is incompatible with the sovereignty of the states and
with the constitution itself, considered as a basis of federal
union." As strong as this language is, it is not stronger than
that used by the illustrious Jefferson, who said — " To give
the general government the final and exclusive right to judge
of its powers, is to make its discretion, and not the consti-
tution, the measure of its powers," and that " in all cases of
compact between parties having no common judge, each
party has an equal right to judge for itself, as well of the
operation as of the mode and measure of redress." " Lan-
guage," says Mr. Calhoun, " cannot be more explicit, nor
can higher authority be produced."
Here Mr. Jefferson as well as Mr. Calhoun must have
assumed as a first principle, that each state still retains an in-
dependent sovereignty. It is also conceded that the govern-
ment of the United States, within the limits of its powers,
is possessed of independent sovereignty. This being all
granted, the rest follows of course — for between independ-
ent sovereignties there can be no common judge. But from
an examination of the constitution of the United States, we
have seen that no such independent sovereignty could have
been left to the states, consistent with the powers therein
delegated to the general government, and the prohibition of
powers to the state governments, and the declared supre-
macy of that constitution, and the laws made in pursuance
APPENDIX. 321
of its powers. Such was the idea of those who framed, and
those who adopted and ratified that constitution. On this
principle, was introduced into the constitution, the article
making provision for a judicial power — a tribunal to be a
common judge between all the parties to the constitution, or
that might become parties under its administration, and ex-
tending its jurisdiction to all cases in law and equity, arising
under the constitution, the laws of the United States, and
treaties made, or which shall be made under its authority.
And, as if intended to put the very case under consideration,
beyond all doubt, the jurisdiction of this tribunal is expressly
extended to controversies, to which the United States shall
be a party to controversies between two or more states —
between a state and the citizens of another state, between
citizens of different states, between citizens of the same state
claiming land under grants of different states, and between a
state and citizens thereof, and foreign states, citizens or
subjects. And is there any exception to this jurisdiction,
except what is to be found in an amendment to the consti-
tution, which is in these words: — "The judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against one
of the United States by citizens of another state, or by citi-
zens or subjects of any foreign state."
From a careful and attentive perusal of this, and other
provisions of the constitution, it appears to me so demon-
strably clear, that I can conceive no possible way of avoid-
ing the conclusion, but by maintaining not only that each
state in the very face of the constitution, still retains its inde-
pendent sovereignty, but that this sovereignty is of so high
o22 APPENDIX.
and transcendent a nature, as to defy the power of the peo-
ple of each state, and of all the stales united, and to render
inoperative and void every act of the people, the primitive
sovereignty, in any way lending to its diminution, a position
which I believe would not have been assumed by Mr. Jef-
ferson or Mr. Calhoun.
Another authority is produced from the legislature of Vir-
ginia, — it is an extract from the report of a committee, al a
session subsequent to that in which the resolutions, so often
referred to, was passed, explaining and justifying that reso-
lution, and of which Mr. Calhoun says, " "Were it possible to
settle a question where the passions and interests of men are
concerned, this point would have been long since settled
forever by the state of Virginia. The report of her legisla-
ture, to which I have already referred, has really, in my
opinion, placed it beyond controversy. Speaking in refer-
ence to this subject, it says, 'It has been objected,' (to the
right of a state to interpose for the protection of her reserved
rights,) ' that the judicial authority is to be regarded as the
sole expositor of the constitution ; on this objection it might
be observed, 1st. That there may be instances of reserved
powers, which the forms of the constitution could never
draw within the control of the judicial department. 2d.
That if the decision of the judiciary be raised above I In-
sovereign parties to the constitution, the decisions of the
other departments, not carried by the forms of llie constitu-
tion before the judiciary department, must be equally autho-
ritative and final with the decisions of that department. But
the proper answer to this objection is, that the resolution of
the general assembly relates to these great and extraordinary
APPENDIX. 323
cases, in which all the forms of the constitution may prove
ineffectual against infractions, dangerous to the essential
rights of the parties to it. The resolution supposes that dan-
gerous powers not delegated, may not only be usurped and
executed by the other departments, but that the judicial de-
partment may also exercise or sanction dangerous powers,
beyond the grant of the constitution ; and consequently, the
ultimate right of the parties to the constitution to judge
whether the compact has been dangerously violated, must
extend to violations, by one delegated authority, as well as
another, by the judiciary, as well as by the executive or
legislative."
The high opinion expressed by Mr. Calhoun of the reason
contained in this report, as well as the high authority from
which it comes, entitle it to a serious and candid examina-
tion. We will therefore consider the reasons offered, both
separately and in connection, so far as they^tand connected.
The whole is intended to be an answer to the objection to
the state right which we have been discussing, " That the
judicial authority is to be regarded as the sole expositor of
the constitution." " To this (say they) it might be observ-
ed, first, that there may be instances of usurped powers,
which the forms of the constitution could never draw within
the control of the judicial department."
In every part of this report there is a confusion of ideas ;
the want, not of a subtle and metaphysical, but an obvious
and practical distinction — a distinction between the uncon-
stitutionality and inexpediency or impolicy of an act or
measure of the government. In the first case, the unconsti-
tutionality of an act, or, as it is denominated in the report,
324 APPENDIX.
the usurpation of a power not granted ; the constitution itself
furnishes the rule of decision. Nor can there be found a
single instance of the kind, in which, by the forms of the
constitution, it cannot be brought within the control of the
judicial department. Not a case in which the party injured
may not bring to a legal decision the question, whether the
act complained of be an usurpation of a power not granted,
or the exercise of a power granted by the constitution. But
as to the expediency or inexpediency, policy or impolicy, of
an act or measure of the government, in the exercise of a
constitutional power, the constitution affords no rule of deci-
sion to a court of law, nor can it be made to afford any rule
in such cases generally. The constitution has, therefore,
necessarily, and I may add, Avisely left questions of mere
expediency and policy to the discretion of the legislative or
executive department, to which the power is committed in
trust. But the constitution has not left this discretion uncon-
trolled. It is, by the provisions of the constitution, placed
under the control of public sentiment, which is exercised by
the people and the state legislatures, in their elections of the
president, vice-president, and the members of the national
legislature, both of the senate and house of representatives.
The frequency of elections, renders this control constant and
powerful, and of which those, who are subject to it, can
never be unmindful. If the distinction taken above be cor-
rect, of which " really in my opinion " it is impossible to
doubt, the reason intended to be given in the first observa-
tion, being founded iii false premises, is altogether nugatory.
They proceed to observe, " secondly, that if the decisions of
the judiciary be raised above the sovereign parties to the
APPENDIX. 325
constitution, the decisions of the other departments, not car-
ried, by the forms of the constitution, before the judiciary,
must be equally authoritative and final, with the decisions of
that department."
The same distinction which was taken above, is equally
applicable, and equally available here. The decisions of the
judiciary are made final and conclusive on the parties, in all
cases submitted to their j urisdiction, and includes all in which
the constitutionality of the acts and measures of the other
departments may be brought in question. But, as before
observed, the expediency and policy of their acts is referred
to the tribunal of public sentiment. I can, therefore per-
ceive no more force in the reason of this observation, than
in that of the first — both appear to me equally nugatory.
The report then proceeds: — "But the proper answer to
the objection is," (see the last paragraph of the report above
recited.) This is certainly an extreme case which proves
nothing ; still more, it is a case that can never happen under
our constitution ; but, were it possible it should happen, a
remedy would not be sought or obtained, by any right re-
served to the states by the constitution. No constitution of
government among men ever has provided, or ever can pro-
vide for a lawful resistance to its authority, without insuring
a perpetual suspension or annihilation of its necessary ener-
gies, and a universal anarchy. But, it will be asked, can
no lawful resistance be, in any case, made to the unconstitu-
tional, to the tyrannical and oppressive acts of a govern-
ment ? As it relates to civil institutions there cannot, any
farther than may be done by a resort to the constituted tri-
bunals, among which is included that of public sentiment, a
41
326 APPENDIX.
tribunal •which, under free institutions, is not the least effi-
cacious. But in cases of violent oppression, where all con-
stitutional remedies have been tried, and have become hope-
less, a people or community, in that situation, are discharged
and freed from all the duties of the constitution, the civil
compact of the government, however solemnly it may have
been ratified, and are thrown back upon the law of nature,
the law of self-protection ; that law which authorizes, nay,
enjoins, as a duty, resistance to oppression, by force and by
every attainable means, under the guidance of wisdom and
prudence. If, in such case of oppression, any one or more
of the states, or any portion of the people are roused to re-
sistance, so far are they from acting under a constitutional
right granted or reserved, that they have assumed the exer-
cise of their natural rights, in defiance of the constitution.
On a candid review of this subject, let me ask, what has
become of those irresistible reasons which, in the opinion of
Mr. Calhoun, have settled the question and placed it beyond
controversy ? Gone — vanished into thin air. That this is
not perceived and acknowledged, is principally to be attri-
buted to passion and interest. But the delusion one mny
well believe, could not have been so long and so obstinately
persisted in, had it not been supported by that confusion of
ideas already mentioned, and which is so prominent a fea-
ture in all Mr. Jefferson's theories of our government ; and
indeed of all the zealous defenders of the independent sove-
reignty of the several states, and their consequent state
rights, — and is not less conspicuous in the speculations of
Mr. Calhoun. It seems to have lain like an incubus on bis
mind, benumbing his faculties of discernment, and bewilder-
ing his imagination in whatever relates to this subject.
APPENDIX. 327
I ought not here to omit another precedent taken from
the same authority — the legislature of Virginia, at a sub-
sequent period, when the fumes of party excitement had
passed away and left the mind open to the light of truth,
and the convictions of reason. It is a precedent which, in
my opinion, neutralizes, as far as relates to the great consti-
tutional question under discussion, all the former precedents
that have been produced, and dissipates all those weighty
reasons which, in the opinion of Mr. Calhoun, has settled
the point forever, and placed it beyond controversy. It is
contained in the following extract from Governor Tyler's
message to the legislature, and the proceedings of the two
houses thereupon.
From Governor Tyler's Message.
December 4, 1809. — "A proposition from the state of
Pennsylvania is herewith submitted with Governor Snyder's
letter accompanying the same, in which is suggested the
propriety of amending the constitution of the United States,
so as to prevent collision between the government of the
United States and the state governments.
House of Delegates, Friday, December 15, 1809. — " On
motion ordered that so much of the governor's communica-
tion as relates to the communication from the governor of
Pennsylvania on the subject of an amendment proposed by
the legislature of that state, to the constitution of the United
States, be referred to Messrs. Peyton, Otey, &c.
Thursday, January 16, 1810. — Mr. Peyton, from the
committee to whom was referred that part of the governor's
communication, which relates to the amendment proposed
328 APPENDIX.
by the state of Pennsylvania, to the constitution of the
United States, made the following report : — The committer,
to whom was referred the communication of the governor of
Pennsylvania, covering certain resolutions of the legislature
of that state, proposing an amendment to the constitution of
the United States, by the appointment of an impartial tribu-
nal, to decide disputes between the states and the federal
government, have had the same under their consideration,
and are of opinion, that a tribunal is already provided by
the constitution of the United States, to wit., the supreme
court, more eminently qualified from their habits and duties,
from the mode of their selection, and from the tenure of
their office, to decide the disputes aforesaid, in an enlight-
ened and impartial manner, than any other tribunal which
could be created.
The members of the supreme court are selected from
those in the United States, who are most eminent for virtue
and legal learning, not at the will of a single individual, but
by the concurrent wishes of the president and senate of the
United States. They will, therefore, have no local preju-
dices and partialities, the duties they have to perform Lead
them necessarily to the most enlarged and accurate ac-
quaintance witli the jurisdiction of the federal and state
courts together, and with the admired symmetry of our gov-
ernment. The tenure of their office enables them to pro-
nounce the correct opinions they may have formed, without
fear, favor or impartiality. Tin- amendment to the consti-
tution, propose'd by Pennsylvania, seems i<> lie founded upon
the idea, that the federal court will, from a lust of power,
enlarge their jurisdiction to the total annihilation of the
APPENDIX. 329
power and jurisdiction of the state courts ; that they "will
exercise their will instead of the law and constitution. This
argument, if it proves anything, avouM operate more strongly
against the tribunal proposed to be erected, which promises
so little, than against the supreme court, which for the rea-
sons given before, have everything connected with their
appointment calculated to insure confidence. What secu-
rity have we, were the proposed amendment adopted, that
this tribunal would not substitute their will and their pleas-
ure in place of the law ? The judiciary are the weakest of
the three departments of government, and least dangerous
to the political rights of the constitution ; they held neither
the purse nor the sword, and even to enforce their own
judgments and decisions, must ultimately depend on the
executive arm. Should the federal judiciary, however, un-
mindful of their weakness, unmindful of their duty, which
they owe to themselves and their country, become corrupt,
and transcend the limits of their jurisdiction, would the pro-
posed amendment oppose even a probable barrier to such
an improbable state of things. The creation of a tribunal,
such as is proposed by Pennsylvania, so far as we can form
an idea of it, from the description given in the resolutions
of the legislature of that state, would, in the opinion of your
committee, tend rather to invite than to prevent collisions
between the federal and state courts. It might also become,
in process of time, a serious and dangerous embarrassment
to the operations of the general government. Resolved,
therefore, that the legislature of this state do disapprove of
the amendment to the constitution of the United States, pro-
posed by the legislature of Pennsylvania. Resolved, also,
330 APPENDIX.
that his excellency the governor, be, and he is hereby re-
quested to transmit forthwith, copies of the foregoing pre-
amble and resolutions to each of the senators and repre-
sentatives of this state in congress, and to the executives of
the several states in the union, with a request that the Bane
be laid before the legislatures thereof." The reports, with
the resolutions, having passed through the usual forms, were
agreed to unanimously, both by the house of delegates and
by the senate. Any comment on this precedent is unneces-
sary ; it speaks for itself, in a language too intelligible to be
misunderstood or perverted.
The writer, however, still considers his reasons, and those
of his authorities to be unanswerable. He proceeds to say,
" Against these conclusive arguments as it appears to me, it
is objected, that if one party has a right to judge of infrac-
tions, so has the other, and that, consequently, in a case of
contested powers, between a state and the general govern-
ment, each would have a right to maintain its opinion, as in
the case when sovereign powers differ in the construction of
treaties, or compacts ; and that, of course, it would come to
be a mere question of force. The error is in the assumption
that the federal government is a party of the national com-
pact." This is an assumption, which, I believe, has never
been made ; nor can I suppose any could ev(ir conclude that
any government ever was, or ever could be, a party, in any
sense of the word, to the compact, by which it was created,
and brought into existence. Indeed, when the compact is
completed, the government still exists in idea only; it is a
mere abstract entity, until arranged, and then, though inca-
pable of becoming by retrospect, ;< party in its own produc-
APPENDIX. 331
tion, yet is it now capable of acting and of being a party, in
cases which may arise between itself and any of its constitu-
ents, or others, according to the nature and extent of the
original compact. But he says, " The states, as has been
showed, formed the compact, acting as sovereign and inde-
pendent communities." Answer — It has been shown, and
so is the fact, that the government of the several states, in
the character of independent sovereigns, submitted each to
the sovereign people of the state, as the only competent aur-
thority, and from whom they severally derived and held the
sovereign power in trust, the execution and ratification of the
federal compact, the constitution of the United States. It is
the act, and in fact the sole, though concurrent act, of the
people of each state. And by the same act, by which they
declared the constitution and laws of the United States, and
treaties made under its authority, to be the supreme law of
the land — that the judges in the several states should be
bound thereby, anything in the constitution of any state to
the contrary notwithstanding ; and that the members of the
several state legislatures, and all executive and judicial offi-
cers shall be bound by oath or affirmation to support that
constitution, they reduced, as they had competent authority
to do, the independent sovereignty, which each state had
before possessed, to a limited sovereignty, intended to har-
monize with that superior, though, in many respects, limited
sovereignty, which that act conferred on the general govern-
ment. Of all this, not a fact can be denied, nor the conclu-
sion from those facts, as it appears to me, without at the same
time, denying all existence of principles, and force of reason.
It is however immaterial in what character the several states
332 APPExNDIX.
acted on that occasion. The question is, in what character
they now stand ; whal character was fixed upon them by the
sovereign people, which, and no other, they still continue to
sustain. What that character is, we have seen clearly de-
monstrated ; yet he goes on to say, " The general govern-
ment is its creature, (of the compact,) and though in reality
a government, with all the rights and authority which belong
to any other government, within the orb of its power, is nev-
ertheless a government, emanating from a compact between
sovereigns, and partaking in its nature and object, of a joint
commission, appointed to superintend and administer the in-
terests in which all are jointly concerned, but having, beyond
its proper sphere, no more power than if it did not exist."
There is indeed a certain degree of analogy between the case
he puts, of a joint commission, and that of the general gov-
ernment. The commissioner, or agent, we may call him, is
appointed to manage the joint concerns of the principals, and
has no authority to bind them beyond Ihe powers they have
given. The general government is constituted with certain
powers, to be exercised within certain limits ; if the govern-
ment exceed those powers, or, rather, if it docs not adhere
to, and pursue those powers agreeably to the true construc-
tion of the constitution, its acts are void ; they are not bind-
ing on the principals, whether we consider the people, the
states, or both to be principals. Here the analogy ends.
Contests may sometimes arise between the commissioner or
agent, and his principals, whether he has exceeded his
powers, but more frequently between third parties and ihe
principals. In neither of these cases, however, have the
principals :i righl to decide for themselves in the lasi resort.
APPENDIX.
The parties may compromise, but the compromise must be
mutual. If they still persist, the final resort must be to a
court of law — a court, not established by the compact, but
by the laws of the country. Very different is the case of the
general government. In that solemn compact, the constitu-
tion of the United States, as has been already pointed out,
there is established a judicial power, which expressly em-
braces in its jurisdiction, all cases that can arise between the
general government and any and all the parties to the com-
pact, relating to the constitutional exercise of its powers, and
the binding force of its acts ; with the provision of an execu-
tive power to carry the decisions of the judiciary into final
effect. Without this provision of an adequate judiciary and
executive power, it would have been nothing more, perhaps
something less, than a joint commission. With it, it is a
government with all the attributes of sovereignty, within the
limits of its powers. It must, therefore, be seen at once, that
the analogy sought fails in all the essential points ; that the
argument built upon it is deceptive, and the conclusions
wholly fallacious. Had the writer taken his analogy from
any of the state governments, it would have extended much
further, and, indeed, to every essential point ; but the con-
clusion would have been wholly the reverse.
In the next paragraph he again endeavors to support him-
self by authority, " That this doctrine is applicable to the
case of a contested power between the states and general
government, we have the authority, not only of reason and
analogy, but of the distinguished statesman already referred
to. Mr. Jefferson, at a late period of his life, after long ex-
perience and mature deliberation, says, " With respect to
42
334 APPENDIX.
our state and federal governments, I do not think their rela-
tions are well understood by foreigners. They suppose the
former subordinate to the latter ; this is not the case ; they
are coordinate departments of one single and integral whole.
But you may ask, if the two departments should claim the
same subject of power, where is the umpire to decide be-
tween them. In cases of little urgency, or importance, the
prudence of both parties will keep them aloof from the ques-
tionable ground ; but if it can neither be avoided nor com-
promised, a convention of the states must be called to ascribe
the doubtful power to that department which they may think
best." It is certainly not surprising that foreigners should
not well understand the relation existing between our state
and federal governments ; but it is not a little surprising that
so distinguished a statesman as Mr. Jefferson, after long ex-
perience and mature deliberation, should not have under-
stood them, or understanding, should not, when he sat down
to correct the erroneous opinions of others, have been able
to express his own in clear and intelligible language. It is
true, there is some degree of difficulty in defining those rela-
tions, which never before existed in the government of any
nation. No words, no names had, therefore, been appro-
priated to express those relations — none are to be found in
any political writer, or in any treatise on government now
extant. Words and names may be found, having a j
analogous signification ; but the analogy will always be dis-
covered to be more or less remote: so that unless a writer
on the subjeel is very careful to define the precise meaning
he intends to express by them, he will often involve his
meaning in obscurity, or lead others, if not himself, into
APPENDIX. 335
erroneous conclusions ; and such is evidently the case with
Mr. Jefferson in this instance. He tells us the relation be-
tween the state and federal governments, is that of coordi-
nate departments of one integral whole — of one whole and
complete government. As no qualifying or defining epithet
is here introduced, the expression ought to be understood in
its common or appropriate signification, which indeed are
here the same. When we speak of coordinate powers gen-
erally, it is understood that the cooperation of the powers,
two or more, are necessary to produce a given effect. In
perfect analogy to this, the word coordinate is applied to
departments of government. If the cooperation of all the
departments, acting separately, be necessary to the validity
of their acts, then powers are said to be coordinate, and
they are appropriately denominated coordinate departments.
So fixed is the meaning of the expression, that this departure
of Mr. Jefferson, if a different meaning was intended, is, I
believe, the first to be found in the English language.
Of these coordinate departments we have examples, as
well in our own governments, as in that of Great Britain.
Both in our general and state governments, the legislative
branch is divided into two departments at least, consisting
of a senate and a house of representatives, who deliberate
and act separately, but must both concur in the same act to
give it validity. The British parliament, the legislative
branch of that government, is divided into three depart-
ments, or, as they are often denominated, the three estates
of the realm, with coordinate powers. The king constitutes
one department, the house of lords another, and the house
of commons a third ; and, to the validity of all and every
336 APPENDIX.
legislative act, each of these coordinate departments must
concur.
Certainly nothing can be found in any article, section, or
expression of the constitution, to justify the application of
the term coordinate departments to the relations thereby
established between the state and general governments, in
its appropriate sense. Nor can it be made to consist with
the declaration, that the constitution and laws of the United
States shall be the supreme law of the land. The state
governments, as such, are not by the constitution admitted
to any voice, either positive or negative, in the adoption of
those laws, or authorized finally to decide on their validity,
either by themselves, or by their highest legal tribunals. I
think Mr. Jefferson could not be supposed, in this instance,
to have used the term in its appropriate sense. The origi-
nal meaning of the epithet coordinate, taken singly, is, of
equal, or the same order, rank, or degree ; as two counts,
an order of nobility, are said to be of coordinate rank, with-
out reference to power or cooperation. But, taken in this
sense, of an equality of rank, to any practical purpose, be-
tween the governments, it appears to me to be irreconcil-
able with the decided supremacy of the constitution and
laws of the general government. It does not support the
general conclusion, which seems intended to be drawn ; nor
does the instance put, serve to illustrate his position, nor to
support Mr. Calhoun's doctrine of state rights. Mr. Jeffer-
son gives an instance of what, he would have us believe, is
an exercise of coordinate powers; or, perhaps we should
rather say, of the remedy to be obtained, through the means,
or in consequence of, the relation subsisting between the
APPENDIX. 337
state and general government, which he believes to be cor-
rectly expresssed by calling them coordinate departments of
one integral government. In this instance, I think he has
been altogether unfortunate. He raises an objection by
way of question : " But you will ask if the two departments
should claim the same subject of power, where is the umpire
to decide ? " His answer is clearly intended to illustrate his
proposition, by obviating the objection: "In cases of little
urgency or importance, the prudence of both parties will
keep them aloof from the debatable ground ; but if it can
neither be avoided nor compromised, a convention of the
states must be called, to ascribe the doubtful power to that
department it shall think best." What is here understood
by the subject of power ? Is it person, or property, or any
matter or thing on which the power may be exercised ? or
is it the purpose or object to be attained, or both ? Taken
in either sense, if there may be a possible, there is certainly
no necessary conflict, arising from the simultaneous exercise
of the same power, by any or all the states and by congress.
Congress has the power to lay and collect taxes through all
the states. Each state has the same power, within the limits
of its jurisdiction. The subjects to be assessed or taxed,
are the same with both. In the case of a direct tax, persons
and property ; of indirect taxes, as an excise, all excisable
articles. The power has been often so exercised by both
without a suspicion of collision. Still, there may arise an
inconvenience. These double exactions may, in their
amount, press too hard on the contributors ; but public
sentiment, under the joint influence of national and state
interests, in consideration of the exigencies on each side,
338 APPENDIX.
and brought to bear alike on both parties, will soon find a
remedy for the inconvenience. One or both will soon be
induced to relax their exactions; or one wholly to remit,
and resort to other sources of revenue. We may adduce
another case, in which the power of both governments may
be brought, and frequently have been brought, to bear on
the same subject, and for an object in many respects the
same, in other respects different, but perfectly concordant.
This is the case of internal improvements ; a power to pro-
mote which has been, and still is, exercised by the general
government, as a constitutional power, and with the appro-
bation of a great majority of the people, and of the states.
As internal improvements in general, such as canals and
railroads, must, for the most part, be made within the limits
of a state, the state power must be first brought to bear on
the subject, as the state alone has the power and the right of
taking private property, for public use, against the will of
the owner, making him a proper compensation, without the
exercise of which no canal or railroad, or indeed any other
road could be made, and carried through, if at all, without
immense sacrifices. The state legislature will make the ne-
cessary provision, as they find it for the interest of the state,
and may direct the road or canal to be made for the use
and at the expense of the state, or they may grant them to
a company or companies, incorporated for that purpose,
always subject to the laws and regulations of the state alone.
Congress may now, if they view the objeel of sufficient na-
tional importance, and to concern the general welfare, bring
their power to bear on the Bubject, by advancing money to
(he state or company, on loan, or by a subscription for
APPENDIX. 339
shares in the company stock. This will be done, however,
only on application to congress by the state, or by the com-
pany. In the first case, that of taxation, each party exer-
cises its power, independent and distinct from the other ; in
the latter case, the state exercises its power, as principal,
the general government as auxiliary. The object of the
state is its own welfare, not excluding the general welfare.
The object of congress is the general welfare, including that
of the state. In none of these cases do we find the shadow
of a coordinate power, or any collision of powers. There
are, indeed, some acts, generally prohibited, which a state
may nevertheless perform, with the consent of congress.
But this consent is a permissive act, of which the state may
avail itself or not. It is not a concurrent act, as in case of
coordinate powers or coordinate departments, in the appro-
priate sense of the term ; nor, in the other sense of the ex-
pression, does it make anything in favor of equal powers.
We will however suppose such conflicting claim to have
arisen between congress and the several state governments.
What does Mr. Jefferson intend by the expression, " if it
cannot be avoided or compromised ?" Should congress exer-
cise the power, or one or more of the states, it becomes a
question of constitutional right — a case arising under the
constitution and laws of the United States, and can be con-
stitutionally decided by the constitutional tribunal, the na-
tional judiciary only. It is not a case for a compromise.
Congress cannot alter the constitution, by surrendering or
abridging any of their legitimate powers ; nor can the several
state governments, of their own accord, surrender any right
reserved to them in that sacred instrument, by the sovereign
340 APPENDIX.
people. Although there is but one mode, thai just referred
to, of settling the present right of the parties, yet is there
another mode provided for settling its exercise for the future,
by an amendment to the constitution, which may assign the
right to one party or the other, with such modifications and
limitations as shall be deemed most conducive to the gene-
ral welfare, or wholly prohibit its exercise. Such provision
is found in the fifth article of the constitution, " The con-
gress, whenever two-thirds of both houses shall deem it ne-
cessary, shall propose amendments to the constitution, or on
the application of the legislatures of two-thirds of the several
states, shall call a convention of the several states, for pro-
posing amendments, which in either case shall be valid to
all intents and purposes, as part of this constitution, when
ratified by the legislatures of three-fourths of the several
states, or by conventions in three-fourths thereof, as the one
or the other mode of ratification may be proposed by the
congress."
Mr. Jefferson had undoubtedly a reference to such con-
vention, a convention to be called, on the application of the
Legislatures of two-thirds of the several states; for we cannot
suppose that he contemplated, in this instance, any innova-
tion of the constitution. Although this convention was to
have the power only of proposing amendments, thereafter to
be referred, for ratification, to the states, in one or other of
the modes which congress mighl propose. On the whole,
we need not hesitate to say, that he lias not given a proper,
or satisfactory answer to the objection he had raised, nor an
answer tending in the leasl to strengthen or to illustrate his
proposition.
APPENDIX. 341
I shall presently attempt to explain the relation actually-
existing between the state and general governments, and the
provisions of the constitution intended to harmonize the
general and particular interest. But, as I have hitherto,
after stating the writer's doctrine of state' rights, confined
myself principally to an examination of his authorities, on
which he places so profound a reliance, and their reasons,
fully expressing, as he tells us, his own, and which he has
considered as unanswerable, I will return to a brief exami-
nation of his own reasoning, the theory on which, according
to him, the constitution rests.
He begins with saying : "It has been said by one of the
most sagacious men of antiquity, that the object of a consti-
tution is to restrain the government, as that of the laws is to
restrain individuals. The remark is correct. Nor is it less
true, where the government is vested in a majority, than
where it is in a single or a few individuals, a republic than a
monarchy or aristocracy. No one can have a higher respect
for the maxim, that the majority ought to govern, than I
have, taken in its proper sense, subject to the restrictions
imposed by the constitution, and confined to subjects in
which every portion of the community have similar interest ;
but it is a great error to suppose, as many do, that the right of
a majority is a natural and not a conventional right, and there-
fore absolute and unlimited. By nature every man has the
right to govern himself; and government, whether founded
on majorities or minorities, must derive their right from the
assent, expressed or implied, of the governed, and be subject
to such limitations ;is theymay impose. Where the interests
are the same, that is, where the same laws that will benefit
43
342 APPENDIX.
one will benefit all, it is just and proper to place them under
the control of the majority ; but where they are dissimilar,
so that the law thai may benefit one portion may be ruinous
to another, it would be unjust and absurd to subject them to
its will ; and such I conceive to be the theory on which our
constitution rests."
The theory exhibited in this passage, is, except in one or
two instances, certainly correct, although, like most of all
theories, it may be misapplied, as I think it has been in this
case. The exception is, to the distinction taken for granted
between natural and conventional rights, as though the for-
mer were absolute and unlimited, the latter not. There is in
fact, no such thing among human beings as an absolute and
unlimited right, whether it be called natural or conventional.
All rights are relative ; they are suggested by existing social
relations, and are consummated, modified, and limited by
convention ; that is, by the general, but for the most part
tacit consent of the society. An isolated individual, ex-
cluded from all possible relation to society, all knowledge of
social relations, could have no right, nor even the conception
of a right, in any proper sense of the term. He would have
the power of uncontrolled action within the limits assigned
by his nature, the power of doing what he pleased. This
is not the exercise of a right, but of a faculty. The right of
self-governmenl, which it is said every man has from nature,
is, therefore, not absolute and unlimited. It is by that very
assenl which is necessary to its existence, subjected to modi-
fications and limitations. The actions of the individual are.
in thai respect, subject to prohibitions and even compulsion*
It is the right and duty of the community, in any existing
APPENDIX. 343
state of things, to prohibit all those actions of the individual
that have a direct tendency to injure the society, and to
compel him to make those proportionate contributions that
are found necessary to support and advance the general
interest — the good of the whole. As all rights are social,
so are they also conventional ; but they are not therefore
opposed to natural rights. Nothing more can with pro-
priety be meant by natural rights than that they are approved
by the laws of nature. Nor can anything more be under-
stood by the laws of nature, than those rules of human or
social conduct, which reason and experience have discovered
to be generally beneficial to man, in the relations which he
sustains agreeably to his constitution, as established by his
Creator. It is not true in any practical sense, that any rule
of the law of nature is absolute and unlimited — that it is
binding, under all circumstances, admitting no exceptions.
That which the law of nature approves and enjoins in cer-
tain circumstances and relations of society, it disapproves
and prohibits in others. Were it not so, all social improve-
ments must have been prohibited to mankind, by the laws of
his nature.
The rule, that the majority shall govern, was considered
by those who formed and by those who ratified the consti-
tution, as a rule already established. It had the sanction of
immemorial usage ; it was the established rule in every legis-
lative, in every public body through the country. But they
considered it to be capable of exceptions ; and they intro-
duced exceptions, in all the cases where they thought a
greater degree of unanimity ought to be required. Thus in
the senate, it is made necessary that two-thirds of the mem-
344 APPENDIX.
bers present should give their assent to a treaty — and the
same majority of two-thirds is necessary to conviction on
impeachment. It is also provided, that a bill objected to by
the president, shall not become a law unless it shall be re-
passed by a majority of two-thirds of both houses. That
the majority of two-thirds of both houses shall agree in
making proposals of amendments of the constitution by con-
gress. In the application to congress, it is required thai two-
thirds, and in the ratification of amendments three-fourths
of the states should concur. These are the only exceptions
expressed, and being expressed, every exception by infer-
ence merely is excluded. The assertion, that where the
interests are dissimilar, so that the law that will benefit one
portion, may be ruinous to another, it would be unjust and
absurd to subject them to the will of a majority, is too
unqualified, and moreover implies an extreme case, which
proves nothing. In every community, Avhere the members
are intelligent and enterprising, there must necessarily be
a great diversity or dissimilarity of interests, arising from
different pursuits, but all contributing more or less to the
same end, and the sum total of which will constitute the
general interest ; that is, the interest of the majority. If
there be found an interest that contributes nothing to the
general interest, it can demand no more than common pro-
tection ; but if it be detrimental, if hostile i<> the general
interest, it would be unjust and absurd to encourage it; nay,
justice to the community would require thai proper nieas-
ures should be adopted to discourage it, and put an end to
its pursuit. Indeed, in a well regulated society, very few,
I believe I may venture to say none, will be found to engage
APPENDIX. 345
in, or certainly, long to pursue an interest that in its nature,
or the nature of the means necessary to support it, is so
inflexible that it cannot be brought to accord with the public
interest, and even to promote it.
The writer having, as he assumes, established by the au-
thorities adduced, as well as by his own reasoning, the right
of a state, by its legislature, to nullify or suspend Avithin the
limits of its jurisdiction, any law of the general govern-
ment, which they shall judge to be unconstitutional, or
what he considers the same thing, to come in conflict with
some great interest of the state, proceeds to give us the rea-
son why such provision should be made in a government
like ours, and its absolute necessity to the preservation of
the union. We are told a similar provision was found in
all the most famous governments of antiquity, particularly
of Sparta and of Rome ; that it was with them the great
preservative principle of liberty, and to which is justly attri-
buted their stability, their long endurance and prosperity ;
that in modern times we have a conspicuous example in the
British government, in the three coordinate departments of
that government, constituted of the monarch, the aristocracy
or lords, and the commons or representatives of the people.
The different interests of these orders are of rank, and con-
sist of powers, prerogative privileges and rights claimed by
each, and often coming in conflict with each other. When
these orders are deemed necessary to the continuance of the
government, each order must necessarily be vested with a
power to protect its own rights and privileges, and this can
be done in no other way than by vesting them with coordi-
nate powers, rendering the concurrence of all and oath,
346 APPENDIX.
necessary to the validity of every law or general measure of
the government ; so that any one of the orders can, by a
simple non-concurrence, protect itself against any law or
measure, which may be supposed injuriously to affect its
interests. " Happy for us," he says, " we have no artificial
and separate classes of society. We have wisely exploded
all such distinctions, but we are not on that account exempt
from all contrariety of interests, as the present distracted
and dangerous situation of our country, unfortunately, but
too clearly proves. With us they are almost exclusively
geographical, resulting mainly from difference of climate,
soil industry and productions, but are not therefore less
necessary to be protected by an adequate constitutional pro-
vision, than where the distinct interests rest in different
classes. The necessity is, in truth, greater, as such separate
and dissimilar geographical interests are more liable to
come into conflict, and arc more dangerous, in that state
than those of any other description." One prominent error
of the writer, and which affects all his reasonings on the
subject, is, that he considers all different and dissimilar inter-
ests as coming into conflict or opposition with each other,
while I believe, that under our institutions, no two or more
interests, the pursuit of which can lawfully be permitted,
considered in a political, civil or moral view, are ever neces-
sarily opposed, or have any necessary tendency to opposi-
tion. On the contrary, when rightly understood, (and men,
nnless under some lh^h excitemenl or temporary delusion,
will readily understand whal is for their benefit, 5 ) it may, with
the utmost confidence, be asserted thai there is a general
harmony of -all such interests. As for instance, between
APPENDIX. 347
the agriculturist and the manufacturer. The agriculturist,
whether his products consist of raw material, as cotton, flax,
hemp or wool, or of articles of subsistence, as beef, pork,
butter, cheese and bread stuffs, is deeply interested in the
success and prosperity of the manufacturer, the greater his
demand on the agriculturist for the materials of his manu-
facture and the means of subsistence, a demand for those
articles which must mostly perish on hand, or cease to be
produced ; and the more ready, cheap and abundant will be
his supply of the articles and implements necessary to any
advantageous pursuit of his business, or that contribute to
the necessities, comforts and conveniencies of life. Nor is
the manufacturer less deeply interested in the success of the
agriculturist, which secures to him a more cheap and abun-
dant supply of the necessary means of subsistence, and the
materials of his manufacture, while the success of both
unite in the public prosperity. Nor can it affect the real
mutuality of the interests, whether they reside in the same
or in different geographical divisions of the country, be-
tween which there is a free commercial intercourse. It is
thus that the cotton manufacturers of the north, including all
the manufacturers and agriculturists of that region, have a
steady interest in the success of the cotton planters of the
south, from whom alone they can expect a supply of cot-
ton, the important material in their manufacture, the duty
of three cents per pound on foreign cotton imported, amount-
ing to a prohibition. And surely the cotton planter is equally
interested in extending his market, by furnishing a steady
supply to the increasing demand of the manufacturers. In-
deed, it is nothing short of a paradox to assert, that the dif-
348 APPENDIX.
ference of climate, soil, industry and productions in the
different states, or geographical divisions of the country,
should create differenl and dissimilar interests in the sense
of the writer. As to the proof of a contrariety of interests
to be found, as he tells us, in the present distracted and
dangerous state of the country, it is a proof of a contrariety
of opinion, which on the part the writer has espoused, ap-
pear to me, as they do to a majority of two-thirds, if not
three-fourths of the states, as baseless as are his opinions
which have been examined on the great constitutional
question.
To proceed with his system of self- protection, to be vested
in the several states, and his reasons why there ought to
be such a provision : He tells us that a constitutional pro-
vision of the right of self-protection,- in the case of separate
and dissimilar geographical interests, is more necessary than
in the case of difference of ranks, as such interests, accord-
ing to his assertion, arc more liable to come into conflict,
and are more dangerous in that state, than those of any
other description. We are told, " So numerous and diver-
sified are the interests of our country, that they could not
be represented in a single government, organized so as to
give each great and leading interest a separate and distinct
voice, as in the governments to which 1 have referred. A
plan was then adopted, better suited to our situation, but
perfectly novel in its character. Tin powers of govern-
ment were divided, not as heretofore, in reference to classes,
but geographically. One general governmenl was formed
for the whole, to which was delegated all the powers, sup-
posed to be necessary to regulate the interests common to
APPENDIX. 349
all the states, leaving others subject to the separate control
of the states, being, from their local and peculiar character,
such that they could not be subject to the will of the whole
Union, without the certain hazard of injustice and oppres-
sion. It was thus that the interests of the whole were sub-
jected, as they ought to be, to the will of the whole, while
the peculiar and local interests were left under the care of
the states separately, to whose custody only they could be
safely confided. This distribution, to which all the states are
parties, constitutes the peculiar character and excellence of
our political system ; it is truly and emphatically American,
without example or parallel." The intention of the writer, in
this paragraph, is to show, that the framers of the federal
constitution had, at the time, a clear view of his separate,
dissimilar, and unavoidable conflicting interests, arising from
the geographical causes he has assigned, and the necessity
of providing for each geographical division, or, which is
the same thing, each state, the separate interests of which
might be, as it was then supposed, injuriously affected by
any law of the general government, the power and right of
self-protection. He has not asserted, though his manner of
expression seems to imply it, that the division was made
with a view to the present government. It existed in the
several colonies, long before they became independent states,
before any conception of a national union. Nor does he
assert, nor will he venture to assert, that any such express
provision is to be found in the constitution. But that it is
to be inferred from the supposed views and intention of the
framers, and from what he considers the necessity of the
case. And where are we to find the proof of this inten-
44
350 APPENDIX.
lion ? Not a hint is to be found in any expression of the
constitution ; not a hint in the journals and debates of the
general convention, nor in the debates of the several state
conventions, who ratified the constitution, as far as they have-
been published ; not a hint in any of the amendments that
have since been adopted. On the contrary, it Mas the gene-
ral complaint of the opponents, that the constitution left the
several states powerless ; it left them neither the power nor
the right of protecting themselves agaiiwi any stretch of
power by the general government. It was not only said
that the states were degraded from their sovereignty, but, in
a strain of exaggeration, they were declared to be reduced to
the humble grade of corporations, existing at the pleasure of
the general government, and soon to be swallowed up in the
vortex of its power ; and although these complaints and the
objections they conlaincd were fully answered on the other
side, yet was there not an attempt to obviate them by a hint
of a provision for this self-protecting power, either express
or implied, in the general constitution, or in the modified
constitution of the several stales. Of all this Mr. Calhoun
could not have been ignorant, although he might not have
called it to mind while writing. With respeel to some further
observations which he has made, on the division of powers,
I shall have further occasion to speak. I think we have
given Bufficienl specimens of his reason for the introduction
of this system of self-protection. Let us now attend to the
system itself; the manner in which it is to be exercised, for
tlir attainmenl of its object, and iis final consequences to the
government. It will be recollected thai the right of self-
protection is supposed io be derived t<> each state from its
APPENDIX. 351
independent sovereignty, which it is asserted still remained,
and is reserved to the several states, or at least a portion of
that sovereignty sufficient for the purpose, notwithstanding
the delegation to the general government of all those powers,
in which national sovereignty consists, and the prohibition
to the several states of the exercise not only of those powers,
but of such other powers of domestic, or, as it may be pro-
perly denominated, municipal sovereignty, as, it was be-
lieved, might, under the influence of sectional prejudices, or
an undue preponderance of sectional interests, prove detri-
mental to the interests of the whole, interrupt the national
harmony, and the reciprocal enjoyment of national privi-
leges among the citizens of the several states, in their inter-
course with each other.
The consequence of this supposed reservation of power is,
that, as all sovereign and independent states are equal among
themselves, in power and rights, each state must have a
power coordinate with that of the general government, and
with the several co-states. These powers, however, are not as
in the several departments of the British government, to be
coordinate in their exercise. No state is permitted a voice
in the passage of an act by the general government. When
the act has been passed, and has become the supreme law
of the land, then, and not till then, the protective power
may be interposed. If any one of the states shall judge
the law to be injurious to its separate interests, or a danger-
ous infraction of the national compact, which, according to
the doctrine laid down, as the state is to be its oavii sove-
reign judge, or, which will always be the same thing, it has
the right of interposing its veto, to suspend the operation,
352 APPENDIX.
or, in more modern phrase, to nullify the obnoxious law
•within the limits of its jurisdiction, the limits of the state ; so
that the state may be said to have a recusant rather than a
concurrent voice ; and this act of the state is a constitu-
tional, and therefore a peaceable act — an appeal to the co-
states, instead of an appeal to force, the usual resort of sove-
reigns. He says, " The states themselves may be appealed
to, three fourths of which, in fact, form a power, whose de-
crees are the constitution itself, and whose voice can silence
all discontent. The utmost extent then is, that a state acting
in its sovereign capacity, as one of the parties to the consti-
tutional compact, may compel the government, created by
that compact, to submit a question, touching its infraction,
to the parties who created it."
We are not here told, by what authority, or in what man-
ner the general government are to submit the question to the
parties, that is to the states, for a decision ; but as to the
manner we must suppose from several expressions, and from
the approbation with which he has introduced the authority
of Mr. Jefferson on a similar subject, it is to be by calling a
general convention of the states. But no single state, with
all its sovereignty, has any right, any power, to compel con-
gress to assume a power not delegated by the constitution.
That instrument has conferred on congress no power to sub-
mit any question touching its infractions, either to a conven-
tion or to the states themselves. So far from this, it has, as
has been already shown, very explicitly referred all questions
of this kind to the constituted tribunal, the judiciary of the
United States. If any power, delegated or reserved, shall
be found to be oppressive or unequal in its operation, or
APPENDIX. 353
liable to abuse, a remedy is provided by an amendment of
the constitution, limiting, modifying, or wholly expunging
such power. But such amendment must be proposed and
ratified in the mode and manner prescribed by the constitu-
tion, and no other. For the sovereign people have pre-
scribed modes and limitations to the exercise of their own
power, as well as that of their rulers ; the manner in which,
by whom, and for what purposes, it shall be called into
action. Whether they are to exercise it by themselves, by
their representatives in convention, or in their legislative as-
semblies. The mode of exercising the power of amending
the constitution, and the authorities of the several acting par-
ties, from the inception to the final ratification of the amend-
ments proposed, are definitively pointed out and limited ;
particularly the power of the general convention, the convo-
cation of which is authorized alone by the fifth article of the
constitution, as already recited, is limited to the sole object
of proposing amendments. And surely the writer will not
venture to assert, that there is in this article, or in any other
article of that instrument, any provision or hint of a provision
for the calling of a general convention for any other purpose
or object. Will it then be contended that necessity makes a
law for itself ? That the state power exists from necessity,
that hence from necessity is derived the state right of self-
protection — the right of suspending an obnoxious law of the
general government, in the nature of an appeal to the states,
the original parties to the constitution, that the same neces-
sity will legitimate the calling of a general convention to de-
cide on the appeal, and authorize the convention to make
the decision and furnish the means of compelling the parties,
354 APPENDIX.
in which the general government is included to abide the
decision ? Certainly not, by Mr. Calhoun. He would in-
stantly perceive that such a doctrine would insure a speedy
dissolution of all civfl. institutions ; although he does not per-
ceive that the doctrines which he is advocating would
equally insure a dissolution of the union.
We will, however, suppose all difficulties surmounted,
and a convention of the states meet to decide the appeal,
could an impartial decision be expected ? Public opinion
continuing the same, the same majority would be found in
the convention in support of the law, which had prevailed,
in its passage by congress — and the final decree, instead of
being a dove to silence discontent, would serve only to
cherish discord, and administer food to party discontent.
And yet we are very gravely and zealously assured, that
such are the only means that have been, or can be devised
for the preservation of the union of the states. On a candid
review of the whole subject, it is extremely clear that, if the
power and the right contended for, remained on the adoption
of the constitution, and was reserved to the several states, it
was something that wholly escaped the discernment of those
who framed, or those who ratified that instrument, as well
as those who prepared, and those who ratified the subsequent
amendments — and it is clear that the doctrine of state rights
so zealously advocated by Mr. Calhoun, has no foundation
in the constitution, in reason or common sense.
Before I proceed to examine .Mr. Calhoun's opinion on the
constitutionality and the effects <>l' the tariff, in which 1 shall
be very brief, I will endeavor to define, or rather to delineate
the relations as they exist between the general and the state
APPENDIX. 355
governments. There is, as before observed, a want of ap-
propriate terms, that renders it less easy to express, than to
conceive those relations. In developing these relations we
shall make the constitution our guide, but to a correct un-
derstanding of all the provisions of that instrument, and their
several bearings, it will be necessary to take a concise view
of the constitution that preceded it, the old confederation, its
prominent defects, the causes of failure, the evils intended to
be remedied and the great end to be attained. On the de-
claration of independence in July, 1776, the colonies, now
states, assumed, severally, the powers and character of inde-
pendent sovereignties, independent states. They had, from
the commencement of the revolutionary contest, acted in
concert in the common cause, under the direction of a con-
gress, consisting of delegates from the several colonies, whose
authority was merely that of influence, supported by the
necessity of united efforts against their common and pow-
erful enemy. In this situation it was clearly perceived by
all, that in order to their success in the struggle, and to place
them on a respectable footing with the nations of the earth,
among whom they were taking a station, a closer and lasting
union must be formed, and a general government estab-
lished, with sufficient power and authority to act, and to
transact the common concerns of the Avhole as a nation.
Accordingly the old confederation was formed, approved
and ratified by the several states, acting respectively in
their characters of independent sovereigns. The first article
merely declares the style of the confederacy to be " The
United States of America." The second article declares
that " each state retains its sovereignty, freedom and hide-
356 APPENDIX.
pendence, and every power, jurisdiction and right which is
not by this confederation expressly delegated to the United
States in congress assembled." Article 3d. " The several
states hereby enter into a firm league of friendship with each
other for their common defence, the security of their liberties,
and their mutual and general welfare." In determining
questions in congress, as all independent sovereigns are equal
in dignity, however unequal in other respects, each state was
to have one vote. For the more convenient management of
the general affairs of the United States, delegates were to be
annually appointed in such manner as the legislature of each
state should direct, to meet in congress on a certain day in
every year. The power stipulated in this league to be con-
ferred on congress, were, in many respects, the same as
were afterwards delegated to the general government by the
constitution of the United States, and gave the confederation,
on paper, the semblance of a government ; withholding,
however, those powers, without which all other powers are
merely nominal ; and the grant of these essential powers
was withheld, because they could not consist with the inde-
pendent sovereignty of the several states. Congress was not
provided with a judiciary or an executive. All their acts, as
well as the articles of confederation, were subject to the in-
terpretation of the Legislatures, and judicial tribunals of thir-
teen independent slates ; and for carrying their measures
into effect, they were dependent on the good pleasure of the
legislatures, and executives of these same sovereign states.
They had the power of making treaties, but not the power
of fulfilling any stipulations on their part. They had power
of declaring war, bul had the command of no resources to
APPENDIX. 357
maintain a war. They had no power to raise a revenue, the
power of laying or collecting taxes of any kind, direct or in-
direct. Their power went no farther than to ascertain the
amount necessary to be raised for the public service, and ap-
portion it among the several states according to a rule pre-
scribed, with a request that each should raise its respective
quota, which each, as an independent sovereignty, might
choose or refuse at pleasure ; and which was in fact often
refused or neglected with impunity. It is true, congress
were empowered to borrow money, and emit bills on the
credit of the United States, but without the command of
funds to pay the one or redeem the other. They issued
their acts which they denominated ordinances ; they never
ventured to give them the name of laws ; for what property
of a law has an act that all and every of the parties may
obey or not, at its sovereign will and pleasure. It. is true,
that the pressure of the war and the patriotic zeal of the citi-
zens in a common cause, in which their all — life, liberty,
and property was at stake, supplied, in some degree, the
want of power in congress. In addition to this, a fortunate
concurrence of circumstances in the political world, enabled
congress to engage in the cause of the country some of the
most powerful nations of Europe, to triumph in the event of
the contest, and to obtain from Great Britain a full acknow-
ledgment of the sovereignty and independence of the United
States. But no sooner was the war ended, and peace re-
stored to the country, than the evils of this imbecile system
of confederation were fully developed, to the astonishment
of many and the regret of all. The credit of the United
States was sunk to the lowest ebb, and with it that of the in-
45
358 APPENDIX.
dividual states, involving in the same ruin all credit, all con-
fidence, both public and private. The scenes of perplexity
and distress that followed throughout the country, pressing
on the very verge of anarchy, are remembered by many still
surviving, and are well known to all conversant in the his-
tory of those times.
The experience acquired from observation of the failure
of the system of federal union, the causes of the failure, and
the consequences that followed, disclosed the necessity and
suggested the plan of an energetic national government.
The plan thus suggested was afterwards matured and suc-
cessfully adopted in forming the constitution of the United
States. At the time of forming the constitution, each of the
states was possessed of the full and complete sovereignty,
embracing both the national and the domestic, or, with
more propriety, the municipal sovereignty, within its limits.
It was deemed desirable or indispensable, that the separate
states should still retain and exercise, under their respective
constitutions, the municipal or local sovereignty, subject to
no interference or control of the general government, except
in some few instances, in which such exercise might endan-
ger a conflict with the general interest. And it was deemed
equally indispensable to any practical national union under
a general government, that all the powers which constitute
independent national sovereignty, should be transferred from
the several states and vested in such government ; without
which it must prove equally inefficient with the nominal
government under the confederation. There is no reserva-
tion to the states of that sovereignty and independence, nor
is it expressly denied to them ; indeed, the expression
APPENDIX. 359
" sovereignty and independence," or even the word " sove-
reign," or "sovereignty," is not to be found in that instru-
ment. The term seems to have been purposely avoided ;
perhaps because it was thought not to be applicable, under
our institutions, to the internal relations of cither the general
or state governments, in the absolute sense in which it is used
by English statesmen and jurists. They define it to be an
absolute, uncontrolled, and uncontrollable, arbitrary, and de-
spotic power, which must necessarily exist in every govern-
ment, wherever it may be lodged. And in that government
they placed it in their parliament, the three estates of the
realm. This, however, is not true of that government in
practice, whatever may be the theory. It is there, by the
forms of the constitution, placed under the constant and
powerful control of public sentiment. With us it is ex-
pressly limited by our constitution, which subjects it not
only to the tribunal of public sentiment, but to the legal
control of an independent judicial tribunal, whose interpre-
tations of the constitution, and their decisions on the consti-
tutionality of the laws are final and conclusive. It was,
therefore, probably deemed safer to enumerate the powers
delegated to the general government, and the powers with-
held or limited on the one hand, and the powers limited,
modified, or prohibited 1o the several states, on the other,
without expressing the result in either case, by a term or
terms which might lead to a doubtful or erroneous construc-
tion.
The United States, as a nation, are sovereign and inde-
pendent. This sovereignty is, by the constitution, vested in
the general government. Tn their relations with foreign
360 APPENDIX.
powers, in their intercourse with independent nations, the
sovereignty is absolute and independent, in the sense of the
law of nations, which places all sovereign states on the same
footing ; but in its relations to the people, and to the local or
state governments, it is a limited sovereignty ; and although
its laws are declared to be supreme, they are supreme within
the limits only prescribed by the constitution. In this view
of the subject, the several states may be said to be sove-
reign, but not independent. Each is still in possession of
sovereign power, but it is a limited sovereignty, adapted to
the superior sovereignty of the national government. The
sovereignty of the several states is local, confined in each
within its local limits. It is wholly municipal in its charac-
ter, and embraces those local concerns and interests only,
which were considered as not having a national character,
or not to affect the general interest of all, as forming a na-
tional whole. Thus, while the general government is vested
with supreme authority, in all matters that involve the gene-
ral welfare of the Union, considered in a national view, the
state governments, within the limits of their respective juris-
diction, retain as sovereign all those powers, which, in their
due administration, must endear the social state to mankind.
To them, among their own citizens respectively, it belongs
to regulate the mode of acquiring, and to secure the acqui-
sition of property ; to cherish and protect all the social rela-
tions ; to provide for an equal administration of justice ; to
promote the means of education, and facilitate the diffusion
of useful knowledge through all classes ; to animadvert upon
morals, and punish those crimes which attack private pro-
perty, violate personal security, or in any manner disturb
APPENDIX. 361
the peace of the community. Each of the several states
may be said to be independent, in the exercise of the muni-
cipal sovereignty, in one sense, that no power external to
the state has a right of interference, or to control it while
exercised within the limits as prescribed ; but not in the
usual and appropriate sense of sovereign and independent ;
because, among other things, certain limits are set to that
sovereignty, as it relates to the general government, which
the state governments are forbidden to exceed, and of which
the constitution of the United States has made the former
government the sole guardian, and the sole judge of the
excess. What is conclusive on this subject, if anything can
be so, is, that the right of final decision, in all cases arising
under the constitution and laws of the United States, and
treaties made under its authority, in all cases to which the
United States shall be a party, either with a state or its citi-
zens, in all controversies between two or more states, or in
which a state shall be a party, is vested in the general gov-
ernment, through the proper department, the judiciary of the
United States. Nor is there a single instance, in Avhich a
state is, by the constitution, permitted to judge for itself, in
any question relating to the powers or acts of the general
government — a right necessarily incident to the sovereignty
and independence of a state, and without which no such in-
dependence can exist. As has before been observed, the
constitution and laws of the United States are declared to
be the supreme law of the land, and binding on all the
judges in every state, notwithstanding anything to the con-
trary in the constitution or laws of any state ; and all the
functionaries, all the officers of the several states, legisla-
362 APPENDIX.
tive, executive, and judicial, are required to be bound by
solemn oath to support the constitution of the United States,
that is, to support the government in all its constitutional
acts, in all its departments. Each and every state, with
their several governments, is therefore bound by the same
solemn obligation. A state or a government without func-
tionaries, by whom it may be administered, is a mere ab-
stract entity, incapable of energy, incapable of action. It is
a self-evident truth, that the obligation of the state or govern-
ment is identical with that of its functionaries. The several
states are therefore bound by all the constitutional acts of
the general government, but that government is not bound
by the laws of any state, or of every state, should each with
all solemnity enact the same thing. I am here speaking of
the ordinary powers of legislation, which belong to the state
governments, not of the extraordinary powers of legislation,
which belong to the sovereign people only ; and which is
employed solely in enacting, altering, or amending the con-
stitution of the state governments, and has no bearing on
the present subject. I say, the general government is not
bound by a state law ; they are indeed bound to respect the
laws of the several states, not transcending the bounds of
their municipal sovereignty, as it respects the constitution of
the United States, so far as not to interpose any control ;
but this is totally different from an obligation to obey the
law. The general government is bound, on application of
the legislature, or the executive of a Btate, as the case may
be, to assist in suppressing any insurrection against its au-
thority ; bul this is the obligation of an auxiliary, which sup-
poses no superiority on the one side or the other. Somewhat
APPENDIX. 363
different is the case, where a state cannot act without the
permission of the general government. It indicates a supe-
riority in that government. It is true the permission is not
compulsory on the state, but it is compulsory on the state
not to act without the permission.
On the closest scrutiny we may then repeat the assertion,
that the power of the national government, constitutionally
administered, has, whenever it comes in contact with the
acts of the state governments, a declared superiority. We
nowhere find those relations of equality which Mr. Jefferson
has in effect asserted in denominating them coordinate de-
partments. It is true, the general and the state governments
were intended to include the whole government of the coun-
try, and to each was assigned its part. The former consti-
tuted the national government, vested with the national
sovereignty, and charged with the national interest of the
whole. The latter, the state governments, were local, vested
severally with the municipal sovereignty within their respec-
tive limits, and all united under one national government.
The state governments were, as we have seen, placed in due
subordination to the general government in all those matters
and those only which Avere deemed to be of general concern,
and to embrace the interest of the whole as one nation.
This was not left to the arbitrary discretion of either. The
powers and rights of each are limited and adjusted by the
constitution itself. Without all this the general government
would certainly have a strong resemblance to a joint com-
mission, to which it is compared by Mr. Calhoun ; but a
commission of a peculiar kind, in which any of the parlies
should have a right reserved to disavow any act of the com-
364 APPENDIX.
missioners, and withdraw himself, or to dissolve the com-
pact at his pleasure. There is, however, one provision in
the constitution, on which Mr. Jefferson seems to have
mainly relied, as the foundation of his two coordinate de-
partments, although according to his construction, if it proves
anything, it proves the superiority of one of the depart-
ments — that consisting of the several states — but it is very
clear that it proves nothing to the purpose ; for the question
is, not what may be at some future period, but what at pre-
sent are the existing relations between his departments, not
what the constitution may be, but what it is. Mr. Jefferson
seems to have caught his idea on the subject from the recol-
lection of a general convention, to be called, without any
distinct recollection of the purpose for which alone its call is
authorized. It is not, as before observed, to decide what
are the constitutional powers of the general government, or
the right of the several states as subsisting at the time ; bul
to recommend what they should be at a future period by
proposing amendments of the constitution to this effect. If
any amendments are so proposed, they are to be referred
for ratification to the sovereign people, acting either by their
representatives in convention, to be called in the several
states, or by their representatives in the several state legisla-
tures, and in the latter case the representatives act not in the
character of ordinary legislators, but in the character, and
exercising the extraordinary powers of the people, which
they have reserved to themselves over the constitution, from
whom it originated. And if the amendments proposed are
finally ratified, the ratification is the voice of the sovereign
people of each state, in concurrence with the voice of the
APPENDIX. 365
people of all the states, or at least of three-fourths of all the
states. When the people have thus ratified, or shall have
rejected the proposed amendments, the power is executed,
and becomes dormant. No portion of it remains to the
several states, or any of them. All that remains is the right
of again calling it into exercise in the mode and in the man-
ner prescribed. It is evident, therefore, that this reservation
of power to the people, not to the states or state govern-
ments, as such, is wholly misapplied by Mr. Jefferson as
well as by Mr. Calhoun and his party in favor of state
rights.
There are too objections, deemed by the advocates for
state sovereignty and independence, which ought at least to
be briefly noticed. 1st, That to give the general govern-
ment, through whatever department, the sole right to judge
of its own powers, is to reduce the several states from inde-
pendent governments to the subordinate grade of corpora-
tions, existing at the will and pleasure only of that govern-
ment. 2d, That to make the powers of the general govern-
ment, for any purposes or within any limits, superior to the
state governments, is to make the creature greater than the
creator. As to the first objection, it has often either been
thrown out ad captandum vulgus, or has been taken up and
maintained without due consideration. A corporation is the
mere creature of the superior government, from which it de-
rives its existence, and is dependent for its powers, and for
its continuance, on the laws of the government. Not so the
state governments, even admitting all the powers vindicated
for the general government. In no sense do they derive
their existence or their powers from that government ; nor
40
366 APPENDIX.
are they dependent on its laws for their continuance, or the
exercise of their rightful powers within the limits of their
several jurisdictions. The general government and the seve-
ral stale governments derive their existence and all their
powers from the same legitimate source of power, the sove-
reign people. The government of each state derives its
powers from the act of the people, within its local limits, and
the general government from the concurrent act of the peo-
ple of all the states ; and the people still retain, in the same
sovereign capacity, the right to change and limit the powers
of both or either, and so to adjust them, as shall be deemed
most conducive to the general good. One thing which gives
the greatest security to the state governments, and to state
rights is, that the members of congress are elected, in a cer-
tain ratio, by the people of each state from their own citi-
zens, and for short periods, so that they are held constantly
accountable for then public conduct to their constituents.
As to the second objection, it is held as a general truth, that,
the creature cannot be made greater than the creator. In
what sense does this apply to government ? The sovereign
people create the government, for the very end thai it should
rule over them : the people instituting the government. But
is the sovereignty of the people natural or conventional ? It
is so far natural, as it has its origin in the social nature of
man. But in the order of nature individuals arc first : they
are the constituent parts of society. Being ever so many
persons together, from different parts of the world, so long
as each individual or each family, shall continue to live sepa-
rately and independent of each other, they cannot be said to
constitute a people : that they may constitute a people, it is
APPENDIX. 367
necessary they should become associated, cither by express
or by tacit consent. Then, and not till then, they become a
people, and capable of acting as such. But in that state
they cannot act without some point of union, without some
power instituted or assumed to concentrate their actions —
otherwise, there will be but a chaos of individual actions,
discordant as the individual wills ; in this way only can the
people be brought to act efficiently.
It has been shown, that society is the necessary, and even
the natural state of man ; and that civil government is neces-
sary to man in society. In that sense civil government is a
dictate of nature, and is agreeable to the laws of nature ;
but the institution is left to man in his social state. In that
state every people have the sole right of choosing and form-
ing their own institutions of government, of varying, chang-
ing and adopting them to their different situations, in the
progress of social and civil improvements. How these insti-
tutions have been introduced by tacit consent in the early
stages of society, and become binding by the force of cus-
tom, need not be here repeated. We will advance at once
to that state of social and civil improvements, in which the
people have entered into an express civil compact, or writ-
ten constitution, forming and organizing a government for
themselves, instituting, limiting and directing its necessary
powers to the end intended ; providing for the selection and
appointment of the functionaries to administer those powers
in the several departments, and the manner in which they
shall be held accountable for their conduct in the adminis-
tration. In thus forming and establishing their government,
the people act in their sovereign capacity, and in that capa-
368 APPENDIX.
city are the source of all power in government. But they
have provided, that this their sovereign power shall there-
after remain dormant, until again called into action upon
the same subject, the constitution, and that only on the oc-
casions, and in the manner which they have prescribed. In
the mean time it is, as it were, non-existent. The govern-
ment thus instituted and administered, agreeably to the pro-
visions of the constitution, is made supreme over the people,
who now no longer act as such, but as individuals, sub-
ordinate to the government by their own consent. There
is, therefore, no absurdity in the case, that the people should,
one and all, become subject in their individual capacity to the
government, which they have instituted or created in their
united and aggregate capacity. Indeed, if we reject this
reasoning, we must necessarily resort to the doctrine of the
divine right of sovereignty ; nothing short of this can establish
the authority of any government. This reasoning applies as
well to the several states under the government as to people
under a government of a more simple form ; for let the
several states be considered as parties to the compact, form-
ing the constitution of the general government, each state
was undeniably made a party by the act of the sovereign
people of the state, the government of which is the crea-
ture of that people, and the act of the government or state,
if so empowered to act, is in effect the act of the people
and binding only as such. If, then, the people of the several
states have, themselves, or through the agency of their sev-
eral governments, by concurrenl acl created another govern-
ment, that government is the creature of the whole, as the
government of each state is the creature of its separate and
APPENDIX. 369
distinct people ; and each people have the poAver over the
creature they have made, and the right to place it in such
relation to the creature, made by the whole as they may
please, and in such degree of subordination, and for such
purposes as they shall deem most conducive to their inter-
ests, and the interests of all the parties. Surely this is not
to make the creature greater than the Creator, but directly the
contrary. I will add, that the subordination of the several
states to the national government is only quoad hoc, within
the limits of the powers given to that government, and to the
end for which those powers were given. If I could find
another word in the language less offensive to state pride
than the word subordinate, thus qualified, to express the re-
lation in which the state governments stand as it respects
the general government, I should readily have adopted it ;
but I can find none that will so correctly express that rela-
tion as it is determined by the constitution ; and I consider it
as a matter of great consequence to form a correct opinion
upon the subject.
In respect to the constitutional question, Mr. Calhoun
says, " In order to understand more fully the difficulty of
adjusting this unhappy contest on any other ground, it may
not be improper to present a general view of the constitu-
tional objections, that it may be clearly seen, how hopeless
it is to expect that it can be yielded by those who have cm-
braced it. They believe that all the powers vested by the
constitution in congress, are not only restricted by the limi-
tation imposed, but also by the nature and object of the
powers themselves. Thus, though the power to impose
duties and imposts be granted in general terms without any
370 APPENDIX.
other express limitation, but that they shall be equal, and no
preference shall be given (by any regulation of commerce
or revenue) to the ports of one state over those of another,
yet as being a portion of the taxing power, given with the
view of raising revenue, it is, from its nature, restricted to
that object, as much so, as if the constitution had expressly
so limited it, and that to use it to effect any other purpose,
not specified in the constitution, is an infraction of the instru-
ment, in its most dangerous form, an infraction by perver-
sion, more easily made and more difficult to resist than any
other. The same view is believed to be applicable to the
power of regulating commerce as well as all the other
powers." This does not differ materially from the rule of
construction adopted by the supreme court, as laid down in
Sergeant's Constitutional Law : "In the constitution of the
United States, the powers of government are restricted to
certain objects, and the incidental powers restricted to such
as are necessary, (that is, expedient) to the powers ex-
pressed." This is certainly correct as a general rule ; the
principal difficulty is found in making a correct application
of the rule in specific cases.
In the present case it becomes an important question, what
is the nature and object of the taxing power, and the power
to regulate commerce ? What was intended to be compre-
hended in the terms and expressions used, in the grant of
tlio-:' powers, by the framcrs of the constitution ? For it
will, and must be conceded, that these articles ought now to
be understood as they were then understood, and construed,
to embrace the objects then supposed and intended to be
embraced in them as they are expressed. Mr. Calhoun's
APPENDIX. 371
objection seems to be this, that a power given by the consti-
tution is restricted in all cases solely to the object of that
power. If the object be not expressed, we must look for it
in the nature of the power. If we mean by the nature of the
power its fitness for a certain purpose, or for the attainment
of a certain object, then the nature of the taxing power con-
sists in that fitness — its fitness for raising a revenue. This
is the principal and substantive object ; but is it necessarily
confined to this object ? Suppose there is found in it also a
fitness to become an auxiliary to some other principal powers,
to afford the necessary and proper means for attaining the
object of that power, does the former belong to its nature,
the latter not ? These observations apply forcibly to the two
powers of which we have been speaking. The power to
regulate commerce it is conceded contains a grant, although
not expressed of all the incidental powers necessary and
proper to carry the principal powers into effect — a com-
mand of the means necessary and proper to the attainment
of its object. These means have been found in the power
of taxation granted as a principal power for the purpose of
revenue. The government have constantly used these means
in regulating commerce, by imposing duties for the purpose
of retaliating or counterruling restrictions, on our trade by
foreign nations. I will mention but one instance — the duty
on foreign tonnage. But let us examine the subject a little
more closely, and in detail. As before suggested, in order
to ascertain correctly the extent of the powers granted, we
must ascertain how the terms and expressions used in the
grant, were understood by the Cramers of the constitution.
For in that sense and no other, ought they now to be under-
312 APPENDIX.
stood. At the time of forming and adopting the constitu-
tion, the regulation of commerce by duties and imposts, or
in other words, by means of a tariff, had become familiar to
the people of this country. It had been in use for ages in
the English nation, from whom we are descended, and from
whom we have derived our language, our legal, civil, politi-
cal and commercial vocabulary. With them the numerous
duties laid for the protection of trade, the encouragement of
manufacture, and of every branch of domestic industry, have
been in the language of parliament, of all their statesmen and
writers on political economy, ever denominated regulations
of commerce. The disputes between the colonies and the
mother country, Avho claimed the right of regulating their
commerce, and of imposing taxes and duties, not only as the
means of enforcing such regulations, but for the purpose of
raising a revenue, rendered the terms " regulation of com-
merce" and to regulate commerce, familiar to the people of
this country, and that in connection with the imposition of
duties as the necessary means. And this connection had
become settled and fixed in the general mind by the frequent
and repeated agitation of the subject in the public papers of
the times, and in all public bodies throughout the colonies ;
and the more so, as the colonists took a distinction between
duties imposed upon them, for the purpose of regulating
their commerce with the mother country, including the pro-
tection and encouragement of her manufactures, and those
duties that were imposed merely for the purpose of revenue.
The former they allowed to be constitutional, as the neces-
sary concomitant of a constitutional power, the power to
regulate commerce ; the latter they denied. In this con-
APPENDIX. 373
nection the term was understood and used by the framers of
the constitution of the United States, as Ave are assured by
Mr. Madison, who was a member, and one of the most
efficient members of the general convention. And certainly
his personal knowledge on the subject, his general informa-
tion on whatever relates to our government, render him the
most competent judge ; and his reputation for integrity the
highest authority now living. By him we are informed, that
the power to regulate commerce was then understood by all
to unite with it a pow T er to protect and encourage domestic
manufactures, by a tariff of duties, and was one prominent
view with which it was inserted in the constitution. "We
further find by unquestionable documents, that such was the
view taken of it in the state conventions, as appears from
their debates, as far as they have been made public. It was
a powerful argument in favor of adopting the present consti-
tution, by which was given up that power before vested in
the several states, which, from a want of concert, had been
found wdiolly ineffectual ; so that if they were deceived in
this, if the power was not transferred to the general govern-
ment, it no longer existed anywhere in the union — an in-
stance not to be found in any other nation on earth. Such
also was the understanding of the first congress under the
present constitution, and which was composed of many who
had been members of the general and the state conventions,
that formed and adopted the constitution. Among the first
which they passed was one in execution of this power, an
act imposing duties, and reciting in the preamble that those
duties were laid, among other things, for the purpose of pro-
tecting manufactures. Nor docs it appear, from the journals
47
374 APPENDIX.
or debates published at the time, that there arose even the
surmise of an objection to the prominent assertion of the
power, so made, in its fust exercise by congress. Not a ses-
sion has since passed without some question being agitated
upon the subject. Various objections have, from time to
time, been urged against the policy or expediency of par-
ticular duties, or of the protection to be afforded to certain
branches of manufactures — and in some instances to the
general policy. But I cannot find that any objection was
ever made to the right until 1820, more than thirty years
from the commencement of its exercise, when, for the first
time, on a tariff question then under discussion, the constitu-
tional power and right of congress on this subject was de-
nied, though but feebly supported. The strong opposition
that has since continued, was not formed until 1824. It is
worthy of remark, that the members in congress from the
southern states, particularly from South Carolina, were, al-
most to a man, zealous supporters of the tariff of 1816 — and
none more prominent, or who brought to the subject more
talents than the present writer, Mr. Calhoun. The act which
was then passed, and principally through that influence, was
the entering wedge of the present tariff system. But he now
excuses himself by saying, that the constitutional question
was not raised or discussed at that time. This is undoubt-
edly true. But it is strange, passing strange, that, to a
statesman of his comprehensive mind and acknowledged
talents, the unconstitutionality of this power in exercise,
which now appears to him so prominent, should never have
occurred before.
To enlarge further on this point is unnecessary. It does
APPENDIX. 375
appear to me that the reasons 'here exhibited have esta-
blished, in its fullest extent, the constitutional power of con-
gress on this subject, and, to use a language equally strong,
with that of the writer, if it be possible for reason to settle
a question where the passions and interests of men are en-
gaged, it has forever settled the point, and placed it beyond
the reach of controversy.
Extracts from the journals of the first session of the first con-
gress, and selections from the debates on the first tariff act,
passed on the fourth of July, 1789.
DUTY ON STEEL.
" Mr. Lee moved to strike out this duty ; observing that
the consumption of steel was very great, and essentially
necessary to agricultural improvements. He did not be-
lieve any gentleman would contend, that enough of this
article, to answer consumption, could be manufactured in any
part of the union ; hence it would operate as an oppress-
ive, though an indirect, tax upon agriculture ; and any tax,
whether direct or indirect, upon this interest, at this junc-
ture, would be unwise and impolitic."
" Mr. Tucker joined the gentleman in his opinion, ob-
serving, that it was impossible for some states to get it but
by importation from foreign countries. He conceived it
more deserving a bounty to increase the quantity, than an
impost which would lessen the consumption and make it
dearer also."
" Mr. Clymer replied, that the manufacture of steel, in
America, was rather in its infancy ; but as all the materials
necessary to make it were the produce of almost every state
376 APPENDIX.
in the union, and as the manufacture was already established
and attended with considerable success, he deemed it prudent
to emancipate our country from the manacles in which she
was held by foreign manufacturers. A furnace in Phila-
delphia, with a very small aid from the legislature of Penn-
sylvania, made three hundred tons in two years, and now
makes at the rate of two hundred and thirty tons annually,
and with a little further encouragement, would supply enough
for the consumption of the union. He hoped, therefore,
gentlemen would be disposed, under these considerations, to
extend a degree of patronage to a manufacture which, a mo-
ment's reflection would convince them was highly deserving
protection."
" Mr. Madison, thought the object of selecting this article
to be solely the encouragement of the manufacturer, and not
revenue ; for on any other consideration, it would be more
proper, as observed by the gentleman from Carolina, (Mr,
Tucker,) to give a bounty on the importation. It was so
materially connected with the improvement of agriculture
and other manufactures, that he questioned its propriety
even on thai score. A duty would tend to depress many
mechanic arts in the proportion that it protected this ; he
thought it best to reserve this article to the non-enumerated
ones, where it would be subject to a five per ccnl ad valo-
rem."
" Mr, Fitsimons. Some states were, from local circum-
stances, better situated to carry on the manufacture than
others, and would derive some little advantage <>u this ac-
count in the commencement, of the business. But laying
aside local distinctions, whal operates to the benefit of one
APPENDIX. 377
part, in establishing useful institutions, will eventually ope-
rate to the advantage of the whole."
" Suppose five shillings per hundred weight was imposed,
it might be, as stated, a partial duty, but would not the evil
be soon overbalanced by the establishment of such an important
manufacture ? — a great and principal manufacture for every
agricultural country, but particularly useful in the United
States."
ON BEER, ALE AND PORTER.
;i Mr. Fitzsimpns meant to make an alteration in this arti-
cle, by distinguishing beer, ale and porter, imported in casks,
from what was imported in bottles. He thought this manu-
facture was highly deserving of encouragement. If the
morals of the people were to be improved by what entered
into their diet, it would be prudent in the national legisla-
ture to encourage the manufacture of malt liquors. The
small protecting duties laid in Pennsylvania had a great
effect towards the establishment of breweries ; they no longer
imported this article, but, on the contrary, exported con-
siderable quantities, and, in two or three years, with the fos-
tering aid of government, would be able to furnish enough
for the whole consumption of the United States. He moved
nine cents per gallon."
" Mr. Lawrence seconded the motion. He would have
this duty so high as to give a decided preference to Ameri-
can beer ; it would tend also to encourage agriculture, be-
cause the malt and hops consumed in the manufacture were
the produce of our own grounds."
" Mr. Sinnickson declared himself a friend to this manu-
facture, and thought if the duty was laid high enough to
378 APPENDIX.
effect a prohibition, the manufacture would increase, and of
consequence the price be lessened. He considered it of im-
portance, inasmuch as the materials were produced in the
country, and tended to advance the agricultural interest."
" Mr. Madison moved to lay an impost of eight cents on
all beer imported. He did not think this sum would give a
monopoly, but hoped it would be such an encouragement as to
induce the manufacture to take deep root in every state in
the union ; in this case, it would produce the collateral good
hinted at by the gentleman from New Jersey, which, in
his opinion, was an object well worthy of being attended
to."
ON CANDLES.
" Mr. Fitzsimons moved to lay a duty of two cents on all
candles of tallow, per pound."
" Mr. Tucker observed, that some states were under the
necessity of importing considerable quantities of this article,
while others had enough, and more than enough, for their
own consumption ; therefore the burden would be prac-
tically borne by such states."
" Mr. Fitzsimons. The manufacture of candles is an im-
portant manufacture, and far advanced towards perfection.
I have no doubt but, in a few years, we shall be able to fur-
nish sufficient to supply the consumption for every part of
the continent. In Pennsylvania we have a duty of two
pence per pound ; and under the operation of this small
encouragement the manufacture h;is gained considerable
strength. We no longer import candles from Ireland or
England, of whom, a few years ago, we took considerable
quantities; the necessity of continuing those encouragements
APPENDIX. 379
which the state legislatures have deemed proper, exists in a
considerable degree ; therefore it will be politic in the gov-
ernment of the United States to continue such duties till their
object is accomplished."
" Mr. Boudinot apprehended, that most states imported
considerable quantities of this article from Russia and Ire-
land ; he expected they would be made cheaper than they
could be imported, if a small encouragement was held out
by the government, as the materials were to be had in abun-
dance in our country."
" Mr. Lawrence thought that if candles were an object of
considerable importation, they ought to be taxed for the sake
of obtaining revenue ; and if they were not imported in
considerable quantities, the burden upon the consumer would
be small, while it tended to cherish a valuable manufac-
ture."
ox COAL.
" Mr. Bland, of Virginia, informed the committee that
there were mines opened in Virginia, capable of supplying
the whole of the United States ; and if some restraint was
laid on the importation of foreign coal, these mines might
be worked to advantage. He thought it needless to insist
upon the advantages resulting from a colliery, as a supply
for culinary and mechanical purposes, and as a nursery
to train up seamen for a navy. He moved three cents a
bushel."
OX HEMP.
" Mr. Moore declared the southern states were well calcu-
lated for the cultivation of hemp, and, from certain circum-
stances, well inclined thereto. He conceived it the duty of
380 APPENDIX.
the committee to pay as much respect to the encouragement
and protection of husbandry, (the most important of all in-
terests in the United States,) as they did to manufactures."
" Mr. Scott stated a fact or two ; being, perhaps, as well
acquainted with the western country as any member of the
committee. The lands along the frontiers, he could assure
the committee, were well calculated for the cultivation of
this plant ; it is a production that will bear carriage by land
better than any other, tobacco not excepted. He believed
an encouragement of the kind now moved for, would bring,
in a year or two, vast quantities from that country, at little
expense, to Philadelphia, even from the waters of the Ohio;
the inhabitants expect^ some encouragement, and will be
grateful for it."
"Mr. White. — If the legislature take no notice of this
article, the people will be led to believe it is not an object
worthy of encouragement, and the spirit of cultivation will
be damped ; whereas, if a small duty only was laid, it might
point out to them that it was desirable, and would induce an
increase of the quantity."
" Mr. Moore. — By the encouragement given to manufac-
tures, you raise them in price, while a competition is de-
stroyed, which tended to the advantage of agriculture. He
thought the manufacturing interest ought not to stand in the
way of the other ; but, as the committee had agreed to give
it encouragement, he hoped the other would receive its
share of legislative support."
<: Mr. Burke thought it proper to suggest to the com-
mittee, what might be the probable effect of the proposed
measure, in the state he represented, (South Carolina,) and
APPENDIX. 381
the adjoining one, (Georgia.) The staple products of that
part of the Union were hardly worth cultivation, on account
of then fall in price ; the planters are therefore disposed to
pursue some other. The lands are certainly well adapted to
the growth of hemp, and he had no doubt but its culture
would be practised with attention. Cotton is likewise in
contemplation among them, and, if good seed could be pro-
cured, he hoped it might succeed. But the low, strong rice
lands would produce hemp in abundance ; many thousand
tons, even this year, if it was not so late in the season. He
liked the idea of laying a low duty now, and encouraging it
against the time when a supply might be had from our own
cultivation."
ON GLASS.
" Mr. Carroll moved to insert window and other glass.
A manufacture of this article Avas begun in Maryland, and
attended with considerable success ; if the legislature were
to grant a small encouragement, it would be permanently
established. The materials were to be found in the country
in sufficient quantities to answer the most extensive de-
mands."
ON PAPER.
" Mr. Clymer informed the house, that the manufacture of
paper was an important one ; and, having grown up under
legislative encouragement, it will be wise to continue it"
ON WOOL CARDS.
" Mr. Ames introduced wool cards, with observing that
they were manufactured to the eastward, as good and as
cheap as the imported ones."
" Mr. Clymer mentioned that, in the state of Pennsyl-
18
382 APPENDIX.
vania, llic manufacture "was carried to great perfection, and
enough could be furnished to supply the demand. A duty
of fifty cents per dozen was imposed on wool cards."
" Mr. Bland, of Virginia, thought that very little revenue
was likely to be collected on the article of beef, let the duty
be more or less ; and, as it was to be had in sufficient quan-
tities within the United States, perhaps a tax, amounting to a
proJtibition, would be proper" It was rejected, as totally
unnecessary, " nothing being to be apprehended from rival-
ship."
ON MANUFACTURED TOBACCO.
" Mr. Sherman moved six cents, as he thought the duly
ought to amount to a prohibition. This was agreed to."
No. VII.
LETTER
FROM GOV. CHITTENDEN TO GEN. WASHINGTON,
UPON THE
POLICY AND COURSE OF VERMONT
IN THE
REVOLUTIONARY WAR.
LETTER.
STATE OF VERMONT.
Arlington, Nov. 14, 1781.
Sir, — The peculiar situation and circumstances with
which this state, for several years last past, has been at-
tended, induces me to address your Excellency, on a subject
which nearly concerns her interests, and may have its influ-
ence on the common cause of the states of America. Plac-
ing the highest confidence in your Excellency's patriotism
in the cause of liberty, and disposition to do right and justice
to every part of America, (who have by arms supported their
rights against the knvless power of Great Britain,) I herein
transmit the measures by which this state has conducted her
policy, for the security of its frontiers ; and, as the design
and end of it was set on foot, and has ever since been pro-
secuted on an honorable principle, (as the consequences will
fully evince,) I do it with full confidence that your Excel-
lency will not improve it to the disadvantage of this truly
patriotic, suffering state ; although the substance has already
been communicated by Capt. Ezra Hicock, employed by
Major General Lincoln, by your Excellency's particular
38G APPENDIX.
direction, and who arrived here with the resolutions of con-
gress of the seventh day of August last, which appeared in
some measure favorable to this state. I then disclosed to
him the measures this state had adopted for her security,
which I make no doubt has by him been delivered your
Excellency. And though I do not hesitate that you arc well
satisfied of tile real attachment of the government of this
state to the common cause, I esteem it, nevertheless, my
duty to this state, and the common cause at large, to lay
before your Excellency, in writing, the heretofore critical
situation of this state, and the management of its policy,
that it may operate in your Excellency's mind, as a barrier
against clamorous aspersions of its numerous (and, in many
instances, potent) adversaries. It is the misfortune of this
state to join on the frontier of Quebec, and the waters of
the Lake Champlain, which affords an easy passage for the
enemy to make a descent with a formidable army on its
frontiers, and into the neighborhood of the several states of
New York, New Hampshire, and Massachusetts, who have
severally laid claims, in part or in whole, to this state, and
who have used every art which they could devise to divide
her citizens, to set congress against her, and, finally, to
overturn the government, and share its territory among
them. The repeated applications of this state to the con-
gress of the United States, to be admitted into the federal
union with them, upon the liberal principles of paying a just
proportion of the expenses of the war with Great Britain,
have been rejected, and resolutions passed, ex parte, tending
to create schisms in the state, and thereby embarrass its
efforts in raising men and money for the defence of lur
APPENDIX. ' 387
frontiers, and discountenancing the very existence of the
state. Every article belonging to the United States, even
to pickaxes and spades, has been by the commissioners or-
dered out of this state, at a time when she was erecting a
line of forts on her frontiers. At the same time the state of
New York evacuated the post of Sheensborough, for the
avowed purpose of exposing this state to the ravages of the
common enemy.
The British officers in New York, being acquainted with
the public disputes between this and the claiming states, and
between congress and this state, made overtures to Gen.
Allen, in a letter, projecting that Vermont should be a
colony under the crown of Great Britain, endeavoring, at
the same time, to draw the people of Vermont into their in-
terest. The same day Gen. Allen received this letter,
(which was in August, 1780,) he laid it before me and my
council, who, under the critical circumstances of the state,
advised that no answer, either oral or written, should be
returned, and that the letter be safely deposited till further
consideration : to which Gen. Allen consented. A few
months after, he received a second letter from the enemy,
and the same council advised that Gen. Allen should send
both letters to congress, (inclosed in a letter under his signa-
ture,) which he did, in hopes that congress would admit
Vermont into union ; but they had not. the desired effect.
In the fall of the year 1780, the British made a descent up
the Lake Champlain, and captured the forts George and
Ann, and appeared in force on the lake. This occasioned
the militia of this state, most generally, to go forth to de-
fend it. Thus the militia wire encamped against the enemy
388
APPENDIX.
near six weeks, when Gen. Allen received a flag from them,
with an answer to my letter, dated the preceding July, to
Gen'. Haldemand, on the subject of an exchange of prisoners.
This flag was delivered to Gen. Allen, from the command-
ing officer of the enemy, who were then at Crown Point,
with proposals for a truce with the state of Vermont, dur-
ing the negotiating the exchange of prisoners. Gen. Allen
sent back a flag of his to the commanding officer of the
British, agreeing to the truce, provided he would extend
the same to the frontier parts of the state of New York,
which was complied with, and a truce took place, which
lasted about three weeks. It Avas chiefly owing to the mili-
tary prowess of the militia of this state, and the including
the state of New York in the truce, that Albany and Sche-
nectady had not fell a sacrifice to the ambition of the enemy
that campaign.
Previous to the retreating of the enemy into winter quar-
ters, Col. Allen and Maj. Fay were commissioned to nego-
tiate the proposed exchange of prisoners. They proceeded
so far as to treat with the British commissioners on the sub-
ject of their mission, during which time they were inter-
changeably entertained with politics, which they treated in
an affable manner, as I have been told, but no cartel was
settled ; and the campaign ended without the effusion of
blood.
The cabinet council, in the course of the succeeding
winter, finding that the enemy in Canada were about
seven thousand strong, and thai Vermont must needs be
their object the ensuing campaign, circular letters were
therefore sent from the supreme executive authority of
APPENDIX. 389
this state to the claiming states before-mentioned, demand-
ing of them to relinquish their claims to this state, and
inviting them to join in a solid union and confederation
against the common enemy. Letters were also sent to
your Excellency and to the states of Connecticut and Rhode
Island ; any [one] of these letters stated the extreme cir-
cumstances of this state, and implored their aid and alli-
ance, giving them withal to understand, that it was out of
the power of this state to lay in magazines and support a
body of men sufficient to defend this state against the force
of the enemy. But to those letters there has been no man-
ner of answer returned.
From all which it appeared that this state was devoted to
destruction by the sword of the common enemy. It ap-
peared to be the more unjustifiable that the state of Ver-
mont should be thus forsaken, inasmuch as her citizens
struck the first offensive blow against British usurpation by
putting the continent in possession of Ticonderoga, and
more than two hundred pieces of cannon, with Crown
Point, St. John's, and all Lake Champlain ; their exertions
in defeating General Carleton in his attempts to raise the
siege of St. Johns ; their assisting in penetrating Canada ;
their valor in the battle at Hubbenton, Bennington, and the
landing near Ticonderoga ; assisting in the capture of Gen-
eral Burgoyne, and by being the principal barrier against
the power of the enemy in Canada ever since.
That the citizens of this state have, by nature, an equal
right to liberty and independency with the citizens of Amer-
ica in general cannot be disputed, and that they have merited
it from the United States, by their exertions with them, in
49
390 APPENDIX.
bringing about the present glorious revolution, is as evident
a truth as any other •which respects the acquired right of any
community. Generosity, merit and gratitude, all conspire
in vindicating the independence of Vermont ; but notwith-
standing the arguments which have been exhibited in sundry
pamphlets in favor of Vermont, which have been abundantly
satisfactory to the impartial part of mankind, it has been in
the power of her external enemies to deprive her of union,
confederation, or any equal advantage in defending them-
selves against the common enemy. The winter being thus
spent in fruitless attempts to form alliances, and no advan-
tages were procured in favor of this state, except that Mas-
sachusetts withdrew her claim on condition that the United
States would concede to the independence of Vermont ; but
that if they would not, they would have their smack at the
south end of its territory ; still New York and New Hamp-
shire were strenuously opposed to the independence of Ver-
mont, and every stratagem in their power to divide and sub-
divide her citizens were exerted, imagining that their influ-
ence in congress, and the certain destruction (as they sup-
posed) of the inhabitants of this state by the common enemy,
could not fail of finally accomplishing their wishes.
In this juncture of affairs, the cabinet of Vermont pro-
jected the extension of their claim of jurisdiction upon the
stale of New Hampshire and New York, as well to quiet
their own internal divisions occasioned by the machinations
of those two governments, as to make them experience tin-
evils of intestine broils, and strengthen this stale against
insult. The legislature accordingly extended their jurisdic-
tion to the eastward of Connecticut River to the old Mason
APPENDIX. 391
line, and to the westward to Hudson River. But in the
articles of union referred the determination of the boundary
lines of Vermont and the respective claiming states, to the
final decision of congress, or such other tribunal as might
be mutually agreed on by the contending governments.
These were the principal political movements of the last
winter. The last campaign opening with a gloomy aspect
to the discerning citizens of this state, being destitute of ade-
quate resources, and without any alliance, and that from its
local situation to Canada, obliged to encounter the whole
force of that province, or give up its claim to independence
and run away.
Vermont being thus drove to desperation by the injus-
tice of those who should have been her friends, was obliged
to adopt policy in the room of power ; and, on the first day
of May last, Colonel Ira Allen was sent to Canada, to fur-
ther negotiate the business of the exchange of prisoners,
who agreed on a time and place, and other particulars re-
lating to the exchange. While he was transacting that busi-
ness, he was treated with great politeness, and entertained
with political matters, which necessity obliged him to humor
in that easy manner that might serve the interests of this state
in its extreme critical situation, and that its consequences
might not be injurious to the United States. The plan suc-
ceeded. The frontiers of this state were not invaded, and
Lord George Germain's letter wrought upon congress and
procured that from them which the public virtue of this
people could not.
In the month of July lasl, Major Joseph Fay was sent to
the British shipping on Lake Champlain, who completed
392 APPENDIX.
an exchange of a number of prisoners who were delivered
at Sheensborough in September last, at which time and place
Colonel Ira Allen and Major Fay had a conference with the
British commissioners, and no damage as yet had occurred
to this or the United States from this quarter. And in the
month of October last, the enemy appeared in force at
Crown Point and Ticonderoga, but were manoeuvred out of
their expedition, and were returned into winter quarters in
Canada with great safety ; that it might be fulfilled which
was spoken by the prophet : — "I will put my hook in their
nose, and turn them back by the way which they came, and
they shall not come into this city " (alias Vermont) " saith
the Lord."
It remains that I congratulate your Excellency, and par-
ticipate with you in the joy of your capturing the haughty
Cornwallis and his army, and assure your Excellency that
there arc no gentlemen in America who enjoy the glorious
victory more than the gentlemen of this state, and him who
has the honor to subscribe himself your Excellency's devoted
and most obedient, humble servant,
Thomas Cjiittendk.v.
His Excellency General Washing ton.
No. VIII.
LETTER
NATHANIEL CHIPMAN TO ALEXANDER HAMILTON,
OCCASIONED BY
CERTAIN PROCEEDINGS OE THE DEMOCRATIC SOCIETY
COUNTY OF CHITTENDEN.
The proceedings of the Democratic Society of the county of Chitten-
den, which occasioned the following letter, form a document of consid-
erable length, which is not here republished, as its contents would be of
little interest to readers of the present generation. They are a strong
expression of the democratic doctrines of the time. As some of the posi-
tions laid down in it were enforced by quotations from the writings of Judge
Chipman, he felt it his duty to address the following explanatory letter to
Mr. Hamilton.
LETTER,
Rutland, Vt. January 9, 1794.
Dear Sir, — You have, undoubtedly, noticed the proceed-
ings of the Democratic Society in the county of Chittenden,
in this state. I find they have been published with great
avidity in New York and Philadelphia. The founder of that
society, and sole author of their late proceedings, perhaps
you are apprized, is not an inhabitant of this state, but re-
sides, generally in the city of New York. What could have
induced that gentleman to call in the aid of my name or my
writings, hi support of such proceedings, is best known to
himself. If you have not read the work from which the
quotations are made, you might be led, from the detached
sentences there cited, to believe that it contains the princi-
ples of anarchy instead of the principles of government —
principles wholly subversive of a representative democracy.
If you give yourself the trouble of reading the passages
there cited, in their connection, you will find that they have
been brought in by the head and shoulders, and with the
strength of a Hercules, as a comic writer observes on a like
occasion. I have, indeed, in treating of a representative
396 APPENDIX.
democracy, asserted that " an interest in the approbation of
the people, and a strong sense of accountability to them, in
all ollicial conduct is the greatest, or rather the only effect-
ual security against abuses in those who exercise the powers
of government."
I have farther said, that " to render the public sentiment a
more rational and more powerful check upon every depart-
ment, it is essentially necessary that there be in the consti-
tution of every free state an effectual provision for the dis-
semination of useful knowledge." That " in a republic, by
which is intended a representative democracy, the powers of
government are supported, not by force, but by the senti-
ments of the people ; " that "it is necessary to cultivate a
sentiment of attachment to the government."
I still believe these sentiments to be just, not in theory
only but in practice. Yet I cannot discover that they ex-
press, or even remotely imply an approbation of self-created
societies and clubs, formed for the purpose of censuring the
proceedings of governments in transitu, of anticipating the
deliberations of constitutional bodies, or dictating the meas-
ures which those bodies ought to pursue.
If, sir, you will have the patience to read so long a letter,
I will give you my reasons for believing such societies to be
not only useless, but dangerous. Simple democracies, iu
which the people assemble in a body to enact laws, and de-
( Lde upon public measures, have, from the earliest ages, ex-
hibited scenes of turbulence, violence and fluctuation, be-
yond any other kind of government. No government has
been able to e\i>t under this form for any length of time.
Experience has evinced that the people, collected in a body
APPENDIX. 397
are impatient of discussion, and incapable of reasoning, but
they are highly susceptible of passions. To these the more
artful direct their whole attention ; by these every decision in
the numerous and heterogeneous assemblies of the people at
large is irresistibly influenced. In a simple democracy there
can be no fixed constitution, everything is liable to be
changed by the frenzy of the moment, or the influence
of a popular faction. In such a government, when all are
immediate actors, no accountability can exist ; consequently
in no government have there been instances of a more fla-
grant violation of rights, or a tyranny more cruel and reme-
diless than those which have been frequently exercised over
a minority of the citizens or against an unpopular indi-
vidual.
Such is not the government under which we live. Our
national government and the governments of the several
states are representative democracies. This kind of govern-
ment is calculated to give a permanent security to all the
essential rights of man, life, liberty and property, the equal
right of acquisition and enjoyment in a just compromise with
the rights of all which a simple democracy does not. It is
designed in its constitution to provide equally against the
tyranny of the few and the tyranny of the many.
The people have endeavored to place their delegated
rulers in a constant state of accountability. This is the
hinge on which American liberty turns. That the most
perfect freedom of deliberation might be secured, the mem-
bers of the legislature arc, in their public conduct, made
accountable only to the sentiments of the people by the
interest which they have in Ihe approbation of their con-
50
398 APPENDIX.
stitucnts. The executive is made accountable to the public
sentiment, and is further amenable to a constitutional tribu-
nal for every violation of trust.
The powers and duties of the several departments are, in
many instances, limited by the laws of the constitution,
by which the people have said, thus far shall ye go and
no farther. Many things are left to their integrity and dis-
cretion to act for the best good of the nation.
Congress are, from their situation, furnished with the ne-
cessary information relative to the present state of things as
they may affect the nation, whether internally or externally.
All this is in their debates, handed out and circulated among
the people, together with all the reasons for and against any
measure that could be suggested by the most mature delibe-
ration. By these means the people have in their power suffi-
cient information to judge calmly and rationally of the
measures which have from time to time been adopted. Pro-
ceeding in this way, I am persuaded that a representative
democracy may secure the most civil and political happiness
of any of the kinds of government which have yet existed.
Such is the state of things, that knowledge in the compli-
cated affairs of civil society comes not by intuition. The
means of information, and frequently diligent investigations,
arc necessary. The knowledge of the people will follow,
but can rarely precede a public discussion. They will gene-
rally approve or disapprove with judgment, but, in debating,
arc exposed to all the rashness of ignorance, passion and
prejudice.
Our self-created societies and clubs, as it appears to me,
have a tendency, directly or indirectly, to introduce into the
APPENDIX. 399
measures of government all the precipitation, all the heat
and ungovernable passions of a simple democracy.
Have we reason to believe that these self-pronounced dic-
tators have a freer access to the means of information, that
they have been able, more fully, to comprehend the present
circumstances, the principles, and reasons which ought to
direct public measures, than those to whom the people have
confided that task, or even than their more peaceable and
quiet fellow-citizens ? Certainly they have given us no un-
equivocal proof of either. Their professed design has been
to promote political knowledge, but whenever they have
established themselves, they have assumed a dictatorial style
in their resolves. When any man or body of men have
refused their dictates, or presumed to differ from their
opinion r no length of meritorious services, no virtue or in-
tegrity of character, have been proof against their bold pro-
scriptions. Like the demagogues of simple democracy,
they have appealed wholly to the passions and jealousies of
the people. They have assumed to speak the sentiments of
the people, though, in point of numbers, they are certainly
a very inconsiderable minority. If their assertions have so
far imposed on the national government, as to direct their
measures, it is worse than the evils of a simple democracy.
It is an engine to govern the majority by a minor faction.
Nothing of this kind can happen in an assembly of the
people at large. Is it, sir, supposed that the measures of
congress have, in their present session, been influenced by
means of these societies ? I should be very unwilling to
believe that the American government, which I had sup-
posed to be an improvement upon the wisdom of ages, had
400 APPENDIX.
so soon submitted to the control of a few self-authorized
oligarchs.
If, however, these societies are unable to dictate meas-
ures to the national government, they will still have a very
pernicious effect. When once, though under the thickest
clouds of ignorance, they have prejudged a measure, and
assumed to dictate it, unless they have more candor than
most men, their prejudices will rarely come to any light of
conviction. This, as far as their influence extends, will,
in a great degree, prevent the happy effect of the wisest and
best measures. It is, perhaps, of as much importance, in
general, that the people should see and acknowledge the
measures ef government to be wise and good, as that they
should be really wise and good. If there is a failure in
either respect, they will not secure the happiness of the
people.
It is of great consequence that the people, with the means
of information, should cultivate a disposition to judge with
coolness and impartiality, and that legislators should en-
deavor to render the reason of their measures plain and
intelligible to the common sense of mankind.
I know it is frequently said that, in a republic, it is neces-
sary to the maintenance of liberty, that the people should be
jealous of their rulers. But I have never been able to per-
suade myself, that, to be a good republican, a man must
imbibe prejudices which is the necessary consequence of
jealousy. That, certainly, is an unfortunate situation, which
renders candor dangerous, or jealousy a species of virtue.
In no government are rulers held more strictly and generally
accountable, than in one representative democracy. Their
APPENDIX. 401
continuance in place depends constantly on a faithful dis-
charge of their trust.
Ought we not, then, for a suspicious jealousy to substitute
a manly and rational confidence ? This, by no means, im-
plies a supine inattention to public men or measures, but it
admits candor in the examination. If jealousy be a repub-
lican virtue, if it be necessary to excite suspicions among the
people, to render them watchful of their liberties, it must be
acknowledged that the democratic societies have, in this
respect, great merit. They will not, surely, think that the
people ought to exempt them from suspicions and jealousies
because they are self-existent. Until their time shall come,
they may, on these principles, justify any of the most violent
and ill-grounded invectives against the members of the
federal government, as purely intended to keep alive among
the people a necessary jealousy, a wholesome distrust of
rulers. If, by these means, the people should be deprived
of all the present blessings of government, and the nation
plunged into a long series of calamities, they have only to
say, all this is the glorious price of liberty. They need not
blush for their virulent censures of the executive of the
federal government, for an opposition to the measures of a
foreign minister — those measures which were disapproved
by his nation, and for which he was recalled with pointed
marks of disgrace. Notwithstanding what has been ob-
served, I do not mean to insinuate that such associations as
our democratic societies are to be animadverted upon by
laws, or restrained by the constitution : the exercise of such
a power would be more dangerous to liberty than the asso-
ciations themselves. They must be left to rise or fall solely
402 APPENDIX.
by the good sense of the people. Nor would I insinuate
that it can never be expedient for the people to assemble to
petition for a redress of grievances, whether constitutional
or legislative. But it Avould be well if the petitions and rep-
resentations of the people, unless when they come from
known corporate bodies, were always to be signed individ-
ually, that it might be known how far they are expressive of
the public sentiment. When they come forward from vol-
untary societies, there is often a deception. It is not known
whether they embrace ten or ten thousand individuals.
From these observations you will be convinced that I am
no friend to such societies, and that my name ought not to
have been brought forward, as one who favored their prin-
ciples,
I am, Sir, yours, &c,
N. Chipman.
Alexander Hamilton, Esq.
THE END.
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