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. /. 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^ 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. ECE This book i* 1)1 L — : 9 19G5 9I10|11[1 2IH | NOV 3 1965 JNTERL£]glARY *^W 1965 M ' : 14 £ APR 2 9 19; TERLIBRARY loans MAR 2ST197S c r 10 FOUR Wi/KSOjWNyi DAI W NON.r£**vA^ ^ V WR LU-URu 4JM1RL S£p WTERLTBRARY L0AN thwe wrws P*i NON-REN EWABLF •**** (ac g> 1867 AUG 3 1967 HON-RENEWABLE . OCT 1 1367 Form L9-32w-8,'57(,C8680s4) on the last date stamped below. ■a8K jp^ & APR 2-1 FFC'D I.D-URC N9SEP 1 9 1384 RQGEIFI 1974 L0AI9 1975 ■ B-3W I 02)198? P^ (o CCZ! >^ UC SOUTHERN REGIONAL LIBRARY FACILITY 3 1158 00903 ! 9305 AA 001 161 973 1 University of California SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library from which it was borrowed. l F LP ET1 / Fo: 3 1158 00903 9305 ' AA 001161973 1