A Serious Address To The People Of Pennsylvania On The Present Situation Of Their Affairs
Philip Foner’s introduction:
In December, 1778, Conrad Alexander Gerard, French Minister to the United States, wrote to Vergennes from Pennsylvania: "The established regime has found an able defender in Mr. Paine, author of *A Serious Address to the People of Pennsylvania,' in the newspaper of the first of this month." (John J. Meng, editor, Despatches and Instructions of Conrad Alexander Gerard, IJJ8-IJ8O, p. 413.) Gerard's remark provided the present writer with a clue to the discovery of a forgotten masterpiece by Thomas Paine. Searching through the files of the Pennsylvania Packet for December 1778, the writer came upon a series of articles bearing the above title. Though unsigned, there could be little doubt that these articles had been written by Paine, for whole passages resemble his earlier writing in Common Sense and the American Crisis and his later writing in the Rights of Man. All doubt, however, was dispelled when the writer came upon an article written and signed by Paine in the Pennsylvania Packet of April 7, 1786 in defense of the Bank of North America. In this article Paine refers specifically to the fact that he was the author of "a number of publications, entitled 'A Serious Address to the People of Pennsylvania on the Present State of Their Affairs," observes that he wrote the articles at the request of the friends of the progressive Pennsylvania Constitution of 1776, and adds that "the service was gratis."
The articles represent some of Paine's finest and most progressive writing, and many sentences contained in them will frequently be quoted in the future. Among them the following are outstanding: "Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other States, and the rich will soon supply their places by becoming poor themselves, for where there are none to labor, and but few to consume, land and property is not riches." Labor, in short, is the basis for the production of all wealth! Again: "Property alone cannot defend a country against invading enemies. Houses and lands cannot fight; sheep and oxen cannot be taught the musket; therefore the defence must be personal, and that which equally unites all must be something equally the property of all, viz. an equal share of freedom, independent of the varieties of wealth, and which wealth, or the want of it, can neither give nor take away. To be telling men of their rights when we want their service, and of their poverty when the service is over, is a meanness which cannot be professed by a gentleman."
The following articles appeared originally in the Pennsylvania Packet of December 1, 5, 10, 12, 1778, and are now for the first time reprinted. The series was never concluded, undoubtedly because Paine became involved in the Silas Deane controversy a few days after the last article appeared in the Packet.
Unwilling as I have been to have my attention called from the great object of the Continent, I now find it necessary to pay some regard to the peace and safety of the State I live in. The harmony of the whole is composed of the harmony of its parts; and in proportion as any of them is disordered, the collective force will be weakened, and the general tranquility disturbed. I do not offer this as an apology, but as an additional reason for my address; because as a freeman of Pennsylvania, it is both my right and my duty to render every service in my power for its happiness. Yet that I might at no time narrow the public sphere in which I endeavored to serve the greater cause, I willingly declined the exercise of every privilege in the lesser one. I have never given a vote at any election, or on any provincial question, or attended any meeting for that purpose, since the great question of independence in seventy-six. I contented myself with making my point against the common enemy, and feel concerned that the unnecessary contentions of this State, should call me a moment from that object.
I well know that when men get into parties, and suffer their tempers to become soured by opposition, how tempted they are to assign interested reasons for other people's conduct, and to undermine the force of their reasonings by sapping the reputation of the person who makes them. Therefore, the writer of this, by way of precluding all such insinuation, thinks it proper to declare, that he can boldly look all men in the face, and challenge them to say or to hint, that he ever made profit, place or power his object. He has studied to be useful, and believing that he has been so, feel[s] all that honest kind of civil independent pride which naturally accompanies a willing disinterested mind.
Thus much by way of preface. And I now proceed to a concise and candid enquiry into the rise, reasons and consequences of the present disagreements; for as a great part of the happiness of any people depends on their good temper with each other, so whatever tends to consolidate their minds, remove any misconceived prejudice, or illustrate any controverted point, will have a tendency to establish or restore that happiness. I mean to draw all my conclusions from fair reasonings, and to rest nothing on the arrogance of opinion, or the vanity of assertion. Perfectly cool and unfretted myself, I view the matter rather than the parties, and having no interests, connection with, or personal dislike to either, shall endeavor to serve all.
The present dissensions of this State took their rise in the latter end of the year seventy-six, immediately after the breaking up of the convention which formed the constitution. A principal, if not a greater part of the militia, under the title of associators, was then out of the State. I believe I am within compass, when I say, that the number which marched into the Jersies, first and last, at that time, was not less than fifteen or sixteen thousand men. They were young soldiers it is true, but the ardor with which they turned out, and the circumstance they turned upon, viz. to support the DECLARATION OF INDEPENDENCE, fully proves the disposition of this State to that measure, because there was then nothing compulsive, and every man marched a volunteer. They expected the whole State to be afterwards formed into a legal equal militia, and under that hope put up with the then present inconveniencies. And I cannot help in this place remarking, that the proposals which were afterwards made for continuing the association in preference to the law, however well they might be intended, wore an appearance of being impolitic and unjust; impolitic, because it was disheartening men by service unnecessarily repeated; unjust, because it was riding a free horse to death, to rest, not a tired, but an idle one.
A militia law, is neither more or less, than an undistinguished officiation of the whole, confirmed by legal consent and authority. There are three sorts of men in every State, the willing and able, the willing and not able, and the able and not willing. I extend the idea of ability as well to situation and circumstance, as to health and perfection of body. The law gave relief to the first by a rotation of service; to the second by affording him a legal equivalent, or a legal exemption, as his case might be; and compelled the third to draw .in equal proportion with the former two. But to return —
The manner in which the constitution was formed, is so perfectly clear and regular, that it does not admit of an objection. A deputation from the committee of each county in the state met in Philadelphia, to agree upon the number the convention should consist of, the time they should meet, and the manner in which they should be elected. No person was excluded from voting but those who chose to exclude themselves; and in that case, they either show themselves unworthy of the privilege of an elector, or confiding in the justice and judgment of the rest signified their consent in the election. I happened to be among the latter, for I gave no vote, neither did I know the ticket for the city till it was public.
The particular form of a constitution had not then been made a matter of controversy; so that the members meet unbiased, unprejudiced, and unawed by party influence, and all the advantages of cool deliberation. They had the wisest and ablest man in the State, Dr. Franklin, for their President, whose judgment alone was sufficient to form a constitution, and whose benevolence of heart would never concur in a bad one.
Though by way of narration I have hinted at the authority by which the constitution was formed, yet that which principally concerns us is, whether it is a good one or not; whether it shall be changed, altered or confirmed; whether the defects, if any, are of sufficient importance to justify the expense and trouble of a convention extraordinary; or whether they shall remain as matters to be discussed and remedied in the manner and form which the constitution has provided: And lastly, whether the State will be more unanimous under a change than without it. I conceive that if any of these points can be made clear, that the controversy ceases, and unity takes place from a reasonable impulse.
The cry of slavery and tyranny has been loud and frequent; and the danger ought to be great indeed, when those who never yet drew their swords against the common enemy, should see the necessity of threatening it against the constitution. The constitution has been loaded with the darkest character, and the supporters of it with the most opprobrious names. It is full time to know whether these things are true or not. If true, the multitude will see the necessity of threatening it against the constitution. If not true, it is fit they should be undeceived. In the one case the gentlemen who first promoted the opposition will be thanked; in the other, they will at least deserve the punishment of a public reprimand, for the place of a State is something too sensible to be tortured, or sacred to be trifled with.
Before I enter on the controverted parts of the constitution, I think it necessary to offer a few preliminary observations.
First, That let the constitution have been formed this way or that, objections would have been raised against it. All those who were against independence would have objected against any constitution, because, not daring to attack the declaration of independence itself, they would have attacked the constitution as an outpost, and fought through it under the security of a covert way. Besides which the diversity of opinions and judgments which always takes place on a new measure, the unaccountable proneness of some men to censure every thing not their own, and the fretfulness of others at not being elected, would have sifted off a party, which becoming an asylum to every future discontent, would have vented itself against any form of government that might at first have been instituted.
Secondly, It is the interest of all the States, that the constitutions of each should be somewhat diversified from each other. We are a people upon experiments, and though under one continental government, have the happy opportunity of trying variety in order to discover the best. It does not appear that any form of government yet known in the world has answered the pretences of its institution. The Greeks and Romans became slaves. All forms have failed in producing freedom and security: Therefore to object against the present constitution, because it is a novelty, is to give one of the best indirect reasons for trying it that has yet been given; because as all have been defective, that which shall not be so, must be a novelty, and that which is not a novelty, must be defective. By diversifying the several constitutions, we shall see which State flourish the best, and out of the many posterity may choose a model, and while the diversity lasts all men may be pleased by residing in that which they like best. I could wish that every constitution as it is now formed might be tried for any reasonable number of years. The increase of population under each constitution will determine its goodness, for that which is most liked will be best peopled, and population is the mother of wealth. Form a constitution with such distinctions of rights, as shall expel the poor, or cause them to draw off into other States, and the rich will soon supply their places by becoming poor themselves, for where there are none to labor, and but few to consume, land and property is not riches. An aristocratical government in any of the States of America, would soon become a democratical one. The poor would quit it, and of course the aristocracy would expire in a democracy of owners. Such a State will not only become impoverished, but defenceless, a temptation to its neighbors, and a sure prize to an invader. Men who either do not, or by some fatality cannot penetrate deep enough into consequences, may please themselves with an idea of a distinction of rights in point of fortune, but it is the worst policy they can pursue. They will decay under it. The rental of their lands instead of rising will decline, and their assumed distinction of rights cease to exist, from the want of objects to exercise it over. Greatness is nothing where it is not seen, and a land of Lords would be a land of beggars. Why are the petty Lords and Princes (as they call themselves) of Germany poor, but because they have established governments with such a tyrannical distinction of rights, that the poor being poor for ever, either desert the country, or, remaining in it, can afford to pay but little for the land, and less towards the revenue. And on the contrary, there is a peculiarity in the temper of the present times, that requires to be consulted. The idea of freedom and rights is high, and men who have yet to settle will naturally choose to do it where they can have a vote in the whole government in preference to where they can only have it for a part. The true policy of constructing constitutions in a young country, is to calculate for population. The strength, the riches, the defence of a State rest upon it. We feel a scarcity of laboring hands at this time, on account of the war, and any distinction of rights which should produce the same effect, would continue the evil. I have heard it advanced, by those who have objected against the present constitution, that it was a good one for a poor man. I reply, that for that very reason is it the best government for a rich one, by producing purchasers, tenants, and laborers, to the landed interest, and consumers to the merchants besides which, to live in a country where half the people are deprived of voting, is to live in a land of mutes from whom no honors can be received. As a rich man, I would vote for an open constitution, as the political means not only of continuing me so, but of encreasing my wealth; and as a poor man I would likewise vote for it, for the satisfaction I should enjoy from it, and the chance of rising under it. I am not pleading the cause of the one against the other in either case; for I am clearly convinced that the true interest of one is the real interest of both. Neither am I in this place considering constitutions politically as to government, but naturally as to consequences, and showing the effects that will follow, whether men think of them or not. As a political question it has been hackneyed with a repetition of arguments, but as an interested one, common to all, it has not yet been touched upon. The debaters have been chasing each other these two years like the flyers of a jack, without either enlarging the circle they moved in, or gaining ground in the pursuit.
Riches in a new country, if I may so express it, differ exceedingly from riches in an old one. In the latter it only shifts hands, without either increasing or diminishing; but in the former there is a real addition of riches by population and cultivation.
To digress a little from the point before me I would remark, that there are three distinct ways of obtaining wealth in a new country. Creating it by cultivation; acquiring it by trade; and collecting it by professional employments. The first is the fountain head; the second the streams which distribute it; and the third a kind of ponds which are supplied by drainage; in some instances they may be called pits and swamps, and when they are really useful and beautiful may be styled canals. The two former, that is, cultivation and trade, can neither be too large, too numerous, or too extensive; but the last may be all three. They may multiply till society becomes a bog, and every thing chilled with an ague. Among the latter I reckon authors and lawyers; I put authors first, because their field is larger, and their chance of doing good or hurt is more extensive. Apologizing for the expression, it would be a blessing to mankind if God would never give a genius without principle; and in like manner would be a happiness to society if none but honest men would be suffered to be lawyers. The wretch who will write on any subject for bread, or in any service for pay, and he who will plead in any case for a fee, stands equally in rank with the prostitute who lets out her person.
Thirdly, Having under the second head considered a Constitution as a matter of interest common to all, I shall under this head consider it politically on the same scale of common good.
If we attend to the nature of freedom, we shall see the proper method of treating her; for, to use a new expression, it is the nature of freedom to be free. If the ancients ever possessed her in a civil state, it is a question well worth enquiring into, whether they did not lose her through the bolts, bars, and checks under which they thought to keep her? An injudicious security becomes her prison, and, disgusted with captivity, she becomes an exile. Freedom is the associate of innocence, not the companion of suspicion. She only requires to be cherished, not to be caged, and to be beloved, is, to her, to be protected. Her residence is in the undistinguished multitude of rich and poor, and a partisan to neither is the patroness of all. She connects herself with man as God made him, not as fortune altered him, and continues with him while he continues to be just and civil. To engross her is to affront her, for, liberal herself, she must be liberally dealt with. In absolute countries she is violated into the concubine of a usurper; and in the motley government of Britain she is held a prisoner of state, and once in seven years let out upon parole. At other times her image only is carried about, which the multitude, a stranger to her person, mistakes for herself.
As America is the only country in the world that has learned how to treat religion, so the same wisdom will show how to treat freedom. Never violate her and she will never desert. 'Tis her last residence, and when she quits America she quits the world. Consider her as the rich man's friend and the poor man's comforter, as that which enlivens the prosperity of the one and sweetens the hard fate of the other. And remember, that in all countries where the freedom of the poor has been taken away, in whole or in part, that the freedom of the rich lost its defence. The circle has ever continued to constrict, till lessening to a point it became absolute. Freedom must have all or none, and she must have them equally. As a matter of political interest only, I would defend the freedom of the poor out of policy to the rich. There is the point at which the invasion first enters, the pass which all without distinction ought to defend, and, that being well defended and made secure, all within is at rest. First goes the poor, next the tradesman, then the men of middling fortunes, then those of liberal fortunes, till at last some one without any fortune at all starts up, and laying hold of the popular discontents, tyrannizes over the whole, and under the pretence of relieving them.
This is the natural progress of innovation, whether began by design or mistake. I mean no personal application by these remarks, but there is a leading feature in the opposition which requires to be explained. It is objected by some of them that the Constitution is too free. Do the objectors mean that they are too free? If that is the case, the Constitution out of justice to their children will not suffer them to throw away their portions. But I deny the possibility of a Constitution being too free in point of equality of freedom. It is its equality that makes it safe, and the suspicion of danger therefrom is too illiberal a thought for any man of merit, spirit, education or fortune to avow. The fear has its origin in meanness, not in pride, for pride would scorn it. We often mistake the operation of those two distinct passions upon the mind, and call the one the other. That Constitution which should exclude the poor would be a mean one, and that which should exclude the rich would be a proud one. The former would be a private pilfering, and the latter a bold injustice; for as in either case it is a theft, the difference of the objects attacked would characterize the attempts. Set my wits against a child! No. If I set it at all, it should be against my match.
In a former part of this paper I have used the term a generous Constitution. By a generous Constitution I mean a just one; and by a just one that which considers mankind as they came from their maker's hands — a mere man, before it can be known what shall be his fortune or his state; and freedom being secured in this first and naked state, is forever secured through every possible change of rich or poor. This perhaps would be a novelty, but I will venture to pronounce it that kind of novelty which bids the fairest to secure perpetual freedom and quietude, by justly recognizing the equal right of all, and affording no provocations to a part. Rights are permanent things, fortune is not so; therefore the uncertainty and inequality of the latter cannot become a rule to the certainty and equality of the former. Freedom and fortune have no natural relation. They are as distinct things as rest and motion. To make freedom follow fortune is to suppose her the shadow of an image on a wheel — a shade of passage—an unfixable nothing.
The toleration act in England, which granted liberty of conscience to every man, in religion, was looked upon as the perfection of religious liberty. In America we consider the assumption of such power as a species of tyrannic arrogance, and do not grant liberty of conscience as a favor but confirm it as a right. And in so doing we have in point of justice exceeded every part of the known world. This is the case in the present Constitution of Pennsylvania, and I believe it is nearly the same everywhere else.
The contention about religious freedom has ceased in America by being universally and equally established, and every dispute about civil freedom will likewise cease under the same sovereign cure. 'Tis the inequality of rights that keeps up contention. As in religion, so in civil rights, every man naturally stands upon the same plane, and the inequality of merit and fortune afterwards will point out the propriety of elections. Merit without fortune will be attended with inconvenience, and fortune without merit will be incapable of the duty. The best and safest choice is where they are handsomely united. There is an extent of riches, as well as an extreme of poverty, which, by narrowing the circle of a man's acquaintance, lessens his opportunities of general knowledge. The opinions of the former will be chiefly drawn from books and speculation, and those of the latter from traditionary tales. But the man who by situation is most likely to steer right, is looked for in the practical world. The knowledge necessary for raising and applying a revenue with the greatest ease, is drawn from business. It is self business. And that dignity and benevolence in the spirit of laws, which scorns to invade or be invaded, being the effect of principle refined by education, may be equally sought for in the practical or speculative circle. Two or three lawyers to assist in the technical arrangement of the laws, and prevent clashing in the parts, is highly necessary; but as their future support arises from defects, they require to be looked after, least they should introduce them. Lawyers and a Gentleman are characters but seldom in conjunction. When they meet the union is highly valuable, and the character truly respectable. But the perpetual friction of right or wrong in the common practice of the law, have a natural tendency to rub off those fine feelings which should distinguish the Gentleman.
There are some points so clear and definitive in themselves that they suffer by any attempt to prove them. He who should offer to prove the being of a God, would deserve to be turned out of company for insulting his maker. Therefore what I have or may yet offer on the equality of rights is not by way of proof but illustration.
I consider freedom as personal property. If dangerous in the hands of the poor from ignorance, it is at least equally dangerous in the hands of the rich from influence, and if taken from the former under the pretence of safety, it must be taken from the latter for the same reason, and vested only in those which stand between the two; and the difficulty of doing this shows the dangerous injustice of meddling with it at all, and the necessity of leaving it at large. Wherever I use the words freedoms or rights, I desire to be understood to mean a perfect equality of them. Let the rich man enjoy his riches, and the poor man comfort himself in his poverty. But the floor of Freedom is as level as water. It can be no otherwise of itself and will be no otherwise till ruffled by a storm. It is this broad base, this universal foundation, that gives security to all and every part of society.
With this definition in view, I consider freedom to be inseparable from the man as a man; but it may be finally forfeited in the criminal, or the exercise of the right may cease in the servant for the time he continues so. By servitude I mean all offices or employments in or under the state, voluntarily accepted, and to which there are profits annexed. Likewise all servants in families; because their interest is in their master, and depending upon him in sickness and in health, and voluntarily withdrawing from taxation and public service of all kinds, they stand detached by choice from the common floor; but the instant they reassume their original independent character of a man and encounter the world in their own persons, they repossess the full share of freedom appertaining to the character. The conclusion I mean to draw is, that no involuntary circumstance or situation in life can deprive a man of freedom. The supposition of being influenced through poverty is equally balanced by the supposition of other men being influenced through connection. We have no right to such suppositions; and having none, cannot make them a constitutional ground for division.
N.B. As the writer of this intends to show reasons why the Constitution ought to be confirmed in preference to why it ought to be altered; he therefore leaves every other newspaper open, to admit of any contrary arguments: And he does not intend to get involved in contention, or drawn off his ground, he means steadily to pursue his reasonings till they are concluded.
By a former law of Pennsylvania, prior to the forming the Constitution, it was enjoined, that a man is required, should swear or affirm himself worth fifty .pounds currency before he should be entitled to vote. The only end this answered was, that of tempting men to forswear themselves. Every man with a chest of tools, a few implements of husbandry, a few spare clothes, a bed and a few household utensils, a few articles for sale in a window, or almost any thing else he could call or even think his own, supposed himself within the pale of an oath and made no hesitation of taking it; and to serve the particular purposes of an election day the money has been lent. It is disgraceful that freedom should be made the property of an oath on such trifling things, which, whether they are possessed or not, makes scarce any, or no difference, in the value of the man to the community. Besides which, a merchant who has his property on the seas, or seated in other people's hands, can seldom swear to any worth. He may suppose himself rich today, and at the same time be not equal to his debts. The present Constitution therefore wisely rejected this innovating incumbrance, and fixed on another description, which I shall explain when I come to speak to the parts of the Constitution. Property alone cannot defend a country against invading enemies. Houses and lands cannot fight; sheep and oxen cannot be taught the musket; therefore the defence must be personal, and that which equally unites all must be something equally the property of all, viz. an equal share of freedom, independent of the varieties of wealth, and which wealth, [n]or the want of it, can neither give or take away. To be telling men of their rights when we want their service, and of their poverty when the service is over, is a meanness which cannot be professed by a gentleman. I speak this to the honor of America. She cannot do it. I conclude this paragraph with a remark which requires only to be looked at in order to be understood, which is, that all the former governments on the continent, from Hampshire to Georgia, grew strong and populous in proportion as they were, compared with each other open, free and generous; from which I infer, that the future improvements under the new Constitutions, will arise in the same manner, and from the same causes. Allowance is naturally to be made for extent of territory.
There is but one effectual way to prevent corruption and party influence from operating in elections; which is, by having the number of electors too numerous to be reached, and composed, as they naturally will be, of men of all conditions, from rich to poor. The variety prevents combination, and the number excludes corruption; therefore any distinction of rights which lessens either the number or variety, has a tendency to enslave a State, and no one can tell where slavery is to end when once it begins.
I am as little fond of drawing observations from England as any man, because I know their modes of government are too wretched and ridiculous for imitation, but I would here remark, that the best representation comes from those places where the electors are most numerous and various, and their worst from the contrary places. The cry of being elected by a mob is idle and frivolous. It is a nick name which all parties give to each other. It means no particular class of men, but any class or number of men acting irregularly and against the peace, and cannot be applied in any case to a legal rightful election. I never did, nor never would encourage what may properly be called a mob, when any legal mode of redress can be had, but there are evils which civil government cannot reach, and which the dread of public resentment only can lessen or prevent. Of that kind are the present speculators. But to return to my subject —
Hitherto I have only considered an equality of rights on the scale of common good. I now proceed to examine the inequality of rights as a private evil. It is well worth observing, that all those principles and maxims which are unjust in public life are so in private life. Justice is one uniform attribute, which acting in the man or in the multitude, is always the same, and produce the same consequences.
The man who today proposes to regulate freedom by fortune, being rich himself, little thinks what may be his own state before he dies, or that of his children after his death. His wealth when divided among them, will lose the influence it had when united in his own person. Some of them may do well. Others most probably will be unfortunate, and sinking thereby into the excluded class, become the exiles of a father's pride. The impossibility of knowing into whose hands a distinction of rights may fall, should make men afraid to establish them, lest in the revolution of fortune, common to a trading country, they should get into the hands of those who were intended to be excluded, and severely exercised over those who were designed to inherit them. Who, fifty or sixty years ago, could have predicted who should be the rich and the poor of the present day; and who, looking forward to the same length of time, can do it now? And this reflection applied by every man to himself, will teach him this just and generous motto: Leave Freedom free.
Fourthly, There are two ways of governing mankind.
First, By keeping them ignorant.
Secondly, By making them wise.
The former was and is the custom of the old world. The latter of the new. All the forms of government now in being in the old world bring forward into present view the ignorance and superstition of the times in which they were erected; but the sufferers under them, by constantly looking at them, grow familiar to their absurdities, then reconciled to them, and impose a silence upon themselves which is often construed into consent. It is a decided point with me that Kings will go out of fashion in the same manner as conjurors did, and were governments to be now established in Europe, the form of them would not be monarchical. The decline of superstition, the great encrease and general diffusion of knowledge, and the frequent equalities of merit in individuals, would render it impossible to decorate any one man with the idolatrous honors which are expected to be paid to him under the name of a crowned head. To be kneeling to kiss a man's hand, wrapt up in flannels with the gout, and calling a boy of one and twenty the father of his people, could not now take place as a new custom. We see, know, and feel that those things are debasing absurdities, and could not be made to swallow them or adopt them.
I consider a King in England as something which the military keep to cheat with, in the same manner that wooden gods and conjuror's wands were kept in time of idolatry and superstition; and in proportion as knowledge is circulated through a country, and the minds of the people become cleared of ignorance and rubbish, they will find themselves restless and uneasy under any government so established. This is exactly the case with the people of England. They are not sufficiently ignorant to be governed superstitiously, nor yet wise enough to be governed rationally, so that being complete in neither, and equally defective in both, are for ever discontented and hard to be governed at all. They live in a useless twilight of political knowledge and ignorance, in which they have dawn enough to discover the darkness by, and liberty enough to feel they are not free; constantly slumbering, without an ability to sleep, and waking, without an inclination to rise.
It has been the constant practice of the old world to hold up a government to the people as a mistery, and of consequence to govern them through their ignorance. And on the contrary it is the practice of the new world, America, to make men as wise as possible, so that their knowledge being complete, they may be rationally governed. All the constitutions in America have professedly had this in view, and are constructed to effect this end. The provincial disputes about modes and forms will have no ill consequence, but rather a good one if conducted with temper and supported by proper and just argument. Order and constancy is the natural result of a well informed judgment, whereas, on the other hand, there is no dependence to be put on a man whose consent to a measure is obtained by an imposition on his ignorance. He uniformly agrees with the last that spoke to him, and surrenders to the next that meets him. One thing, likewise, at last is absolutely necessary, and is the true proof of a good citizen, viz. that the sense of the majority is the governing sense.
I now come to the resolution of the Assembly, dated November 28, 1778, for taking the sense of the State on the question for or against a Convention, after which I shall proceed to the matters proposed therein for consideration.
It is to be wished that the question had been a simple one, and not involved with a personal election at the same time. It would then have stood clear and distinct, and been determined entirely on its own merits. The resolution recommends, that on the first of next April, each freeman of the State shall give in a ticket on which shall be written his opinion, those who are for a Convention shall write thereon, "for a Convention," and those who are not for a Convention, shall write on theirs, "against a Convention!' Thus far the resolution is clear, and the business free from embarrassment. But the resolution likewise recommends, that the electors shall at the same time give in other tickets, whereon shall be written the names of persons to serve in Convention, and the reason assigned is to prevent a second trouble, if it should be the sense of the State to have a new Convention.
The first question is on the propriety of a measure; the second the choice of persons. But the connecting and involving the persons with the measure, has an indirect influence to produce the measure. Those who may be for a Convention will act naturally in voting for the persons who are to compose it, their tickets being only component parts of the same plan; but those who may be against having a Convention, must feel an awkwardness in electing one at the same time they vote against having any. Besides which, those who may think a Convention unnecessary, and would have voted so, had the question been simple, may now, from an approbation of the persons proposed as members, grow indifferent on the first question. It also admits of promoting the election of a Convention through the contrary means, because it may be said, that it is proper to have one at any rate, as well to confirm as to alter, which is not the design of the resolution; for a negative vote on a new Convention is an affirmative one on the present Constitution. Therefore the question, as I humbly conceive, would have admitted of an easier and clearer determination had it stood single. I would likewise remark, that it may with some have an effect to prevent a Convention, as the shortest way of getting rid of an involved question, which, by a mixture of persons and measures, look full as much like the beginning of trouble as the end of it.
In my next I shall proceed to the matters proposed in the resolution
The matters proposed for consideration in the resolution of the Assembly of November 28th are arranged under the nine following heads:
Firstly, Whether the legislative power of the State shall be vested, as at present, in a single branch?
Secondly, If the Convention should be for a second branch of legislation, then, how the same and the Executive Powers for the administration of government shall be constructed?
Thirdly, If the Convention shall determine against a second branch of legislature, whether any provision shall be made for the revisal of laws (without any negative) before they receive their final sanction ?
Fourthly, Whether the appointment of Justices and Field Officers of the militia shall be vested in the Executive Powers of government?
Fifthly, Whether the Council of Censors shall be abolished?
Sixthly, Whether the President and Vice-President may not be eligible into Council so as to be capable of said offices after the expiration of three years, if their conduct shall render them worthy?
Seventhly, Whether the Judges should not be made more independent by having their salaries fixed and certain?
Eighthly, Whether, agreeable to the Articles of Confederation of the United States, the Delegates in Congress may not be eligible three years successively?
Ninthly, In case any alterations shall be made by the Convention in the above points, how the several oaths prescribed by the Constitution shall be adopted thereto?
The three first heads are parts of one and the same question. In the fourth, two distinct things are blended together, viz. the appointment of civil Magistrates, and the appointment of militia Field Officers. The order in which I shall take them up is,
First, The appointment of civil Magistrates.
Secondly, The appointment of Militia Officers.
Thirdly, The proposed addition of a second Legislative House.
Fourthly, The Council of Censors.—And the rest as they follow in order in the resolution.
First, On the appointment of civil Magistrates. It is the fault of all the governments in the old world, that they GOVERN TOO MUCH; and this they are naturally enabled to do by affirming, or getting into their hands, the appointment of all officers, civil and military. By the former they engross decisions in their favor, and by the latter are enabled to enforce them; and I mention it to the honor of the gentlemen of the present Executive Council, that neither of those propositions originated with them.
We repose an unwise confidence in any government, or in any men, when we invest them officially with too much, or an unnecessary quantity of, discretionary power; for though we might clearly confide in almost any man of the present age, yet we ought ever to remember that virtue is not hereditary either in the office or in the persons. A return to commerce, and the peaceable stations in civil life, will, in a few years, abate the ardor and activity of the warmest defender of civil rights. When the enemy is gone, the visible necessity will expire, and the wind cease to blow that kindled and yet keeps up the flame. The spirit of freedom will then assume the shape of an unextinguished, and I hope, unextinguishable coal, and unfed by danger or suspicion, will rather silently burn than blaze. Our constitutions therefore, ought to be so constructed and secured, as to afford no opportunities for the future abuse of power in those times of unguarded ease and quiet. And it is far wiser and pleasanter to prevent the existence of such opportunities at first, than to have to encounter them at last, with all the ungracious manners of party and suspicion.
My opinion then, as an individual, is clearly fixed, that the method laid down in the Constitution is far the best, and that not only for the general reasons I have already advanced against surrendering too many rights into the hands of any government, but for the wisdom, precision and delicacy, which visibly appears in the constitutional mode when fairly examined.
The gentlemen of the Convention, whoever they were, seem to have studied mankind, and to have founded the constitution on that knowledge. They have considered a Magistrate as a distinct character from a Legislator, and provided accordingly. It is the office of a Legislator to construct laws for the conduct and government of all, himself being one of them. The State appears before him with an undivided interest; and the several members collected into one body from the several counties, form a whole acting for a whole, themselves being included. Therefore his election is simple and fixed in the first instance, viz. a majority comprehending all the national interests of the minority. But with the civil Magistrate it is otherwise—Individuals appear before him as parties having interests opposed to each other; sometimes one individual against another; sometimes the State against an individual, or an individual against the State, and it is his office to determine between the two. Therefore, the constitutional mode by which he comes into office, is so wisely varied through an ingenuity of turnings, as to make him lose sight of all official dependence on any party, and consequently to set him clear from any personal or governmental obligations, and render his judgment as free and independent as possible. I here subjoin the 13th section of the Constitution, for the electing and appointing Justices, after which I shall continue my remarks.
"Justices of the Peace shall be elected by the freeholders of each city and county respectively, that is to say, two or more persons shall be chosen for each ward, township or district, as the law shall hereafter direct: And their names shall be returned to the President in Council, who shall commissionate one or more of them for each ward, township or district, so returning for SEVEN YEARS, removeable for misconduct by the General Assembly.”
This is the clause, and I will venture to style it a wise and noble one. All the separate interests then can be supposed to appear before him afterwards as parties are happily blended together to produce him. He looks round and knows no client. He comes upon the stage of office without seeing the hand that put him there. Government and the people appear to him, as they ever ought to do, one incorporated body. Elected by the latter, and approved by the former, he is the Magistrate of both, and feeling no partial bias to either, stands free, easy, and sufficiently independent.
There is an incurable weakness in mankind, which, under the idea
of something like gratitude, frequently inclines to favoritism, and it is the operation of this direct upon the Magistrate which the Constitution has taken so much care to prevent, and so extraordinary has been their care, and so ingeniously applied, that I see no amendment or addition that can be made to it.
Had he been elected immediately into office by a majority of votes, he would then have had too close a fight of those who voted for him or against him, which he ought not to have. Therefore the Constitution provides, that two or more shall be elected, out of which the President in Council shall commissionate one or more; and as they may take which, and as many as, they please, the idea of personal obligation in the first election is exceedingly weakened by being removed to a second one; and is at last totally lost, or as much as possibly can be, by his being removeable afterwards for misconduct by the Assembly, with whom, having no prior connections, and as a body annually changing, he is supposed to have no party. The power of removing, as well as the power of judging of misconduct, must be placed somewhere, for until it shall please God to make man over again, which perhaps he never will, the present construction of him does not admit of unlimited confidence, for that would be power absolute.
I now come to consider the proposal for laying aside the constitutional mode, and vesting the appointment of Justices in the Executive Council only; and in order that my arguments may arise from a clear foundation, I take the liberty of introducing them by a few general observations.
It must be naturally supposed, that the reason which first induced men to erect themselves into civil governments, was because they found individual power insufficient to individual protection, and defective in individual convenience; for civil government necessarily implies a surrender of something into a common stock, constituting a common property, and to be used for the mutual good of all the proprietors.
Civil governments being thus consented to generally, the next point was to organize them, that is, to adjust and fit the several parts to each other. In the first stage of division, they are cast into towns, townships, districts and counties, but these being only a larger rank of individuals, and sensible of insecurity in some things, and insufficiency in others, and proceeding on a social principle natural in all men, they again incorporate under a general government of the State. In this stage, civilization would be tolerably complete if we lived in an island remote from every other part of the world. But it is our happiness to have our minds enlarged by situation, and that which the diminutive idea of a man in England would call, a whole, our extended ones style only a part. The erection of States therefore, are individuals of a more gigantic growth, yet the necessity of their harmonizing for mutual advantage is equally as great as if every individual man was a giant, and this last superintending union is in Congress. This being the natural progress and graduation of civil governments, I would infer therefrom, that the collective power in any of the parts is constituted for the sole purpose of doing THAT which the minor parts are not sufficiently competent to. But will the gentlemen of the city or county of Philadelphia, or any other county of the State actually say, they have not sense enough to elect a Magistrate? Do they see that by dealing too much in negatives, they have put a fatal one on their own understanding? This is an humility I never looked for, and must therefore humbly beg to be left out of the confession. Perhaps this inference may appear somewhat jocular, but the proposition they have made, naturally implies it as fully and effectually as if it had been placed before it in the form of a preamble, beginning with, "WHEREAS we have not wit enough to choose Justices of the Peace; therefore, Resolved, That one gentleman from Cumberland, Northumberland, Westmoreland, and every other county in the State shall do it for us, and we, to the best of our power, will appoint theirs." The gentlemen will, I hope, excuse my turning the smile upon them, but really there is something in the proposition which both deserves and warrants it, and shows to what a degree of error and weakness even sensible men can descend when they suffer their tempers to be over-heated by trifles. I now return to a more serious part of the business.
N.B. The remainder of the argument on the appointment of Civil Magistrates will be in our next, as there is not room for it in this paper.
In the former part of my argument I endeavored to show, in a short and concise manner, the wisdom of the constitutional mode, and the security arising therefrom. I now shall show the great inconvenience attending the proposed alteration, and the great danger it will produce when established.
The Executive Council is composed of one gentleman from each
county in the State, and I would ask, by what means are they to become acquainted with the qualifications of the persons they are to appoint for Justices, or to know what reputation they bear in the place for manners and morality, as well as judgment and discretion? The Council must officially and necessarily take them up upon the single recommendation of the Counsellor who represents that county; which mode will unhappily introduce an intrigue of, "If you will serve my friends, I'll serve yours" and the immediate consequence will be, that one man from each county will nominate all the Justices. I think it a great honor to those who are styled whigs of the present day both in government and out, that they, though in power, are the people who most oppose the growth of it even in their own hands. An instance rarely seen and truly noble: For it is not government generally, but civil government which they mean to support.
If it should be said that the Council will take other means to know the qualifications on persons before they appoint them, I ask, what means? For in the matters we must proceed upon something like certainty, not upon supposition. We all know how unsafe and even treacherous private information is in personal characters, and surely no man, who valued the welfare of his country, would wish to see a Magistrate created by a whisper.
But if the Council are to seek other recommendation than that which the Counsellor from the county can give them, then I ask, whether any recommendation can be so safe, as that which comes regularly and publicly before them by a ballot of the freeholders as the Constitution has provided? The choice, as in other elections, may or may not, be the very best, but this I will venture to assert, that it will never be a bad one, and the mode, always the safest one. For in all those matters where no direct certainty can be fixed, that line of conduct, which has the greatest probability of being right at all times, is the line, which for a standing one, ought to be taken. To suppose men capable of electing Members of Assembly and Members of the Executive Council, and to know that the same people have uniformly gone through the great work of raising an original empire, and opposing an enemy at the same time, and are now daily reinforced by new adherents, and to suppose them not capable of electing two or three gentlemen, out of whom the Council is to choose one or two Magistrates is such a feto de se, such a self-murdering argument, that we have a right to question the rationality of those who advance it. It stands upon nothing. It has no foundation; but involves those who proposed it, and those it is proposed to, under one common supposition of idiotism, and to defend it is to confirm both the disgrace and the affront. I make no distinction in this place between the too hackneyed and frequently unmeaning names of whig and tory, for as the change in the mode of appointing Justices, is intended as a standing one, therefore it is designed to operate when those temporary distinctions shall cease, and consequently the censure is universally passed on all, and the public a thousand years hence are supposed to be fools. I would really be as mild as the nature of the argument required, my design being not to defeat, but to convince, yet there is a striking indecency in this paradox that even demands reproof.
Next to the danger of private insinuation, and private connection, in the new proposed mode of appointing Justices, is the still greater danger from them after they are so appointed. Magistrates created by any government, will have a fixed eye on their immediate creators, and be too apt to suppose themselves created for particular purposes, instead of equal justice, and in time be inclined to consider government as a distinct party in the State. Do the gentlemen who brought the new proposals into the Assembly (and to which proposals the constitutional part of the Assembly yielded to for quiet sake, submitting thereby the propriety of them to the sense of the public) do these gentlemen, I say, consider how many questions of right or property, in which government must necessarily appear as a party, will, on the opening of trade, naturally come before the Magistrates? Do they consider how many disputes about revenue, whether of excise, customs or other taxes, will, or may hereafter fall within the jurisdiction of a Court of Justices; and would they be so unwise as to invest the party necessarily interested with the power of appointing the Judge? Surely not. And do those gentlemen likewise see how nicely and wisely the Constitution has provided against those things by placing the Magistrate so that he shall feel at his creation no partial bias, and neither be tempted to favor licentiousness for popular applause, nor to promote an encrease of power from hopes of interest.
We are necessarily obliged to have the Judges of the Supreme Court appointed by the Executive Council, because they being Judges for the whole State, there is no other practicable method, and it is likewise one of those exercises of delegated power, for which the Representative body of Counsellors is chosen. The propriety is founded on necessity, and the right in representation. But neither of these takes place in the case of county Magistrates; for, in the first instance, there is no necessity; and in the second, there is no adequate representation; the Council from each county being but one. Therefore to invest him or them separately or collectively, with more official discretionary power than the convenience of civil government requires, would be to transform them from Representatives into Ministers, and to bastardize a republic by the intrigues of a court. I sometimes think that the gentlemen who opposed the Constitution are not constitutionally in earnest, and feel an inclination to believe, that they started without a thought, and in the passion of the race mistook heat for judgment. That the dispute has been an unfortunate one, is without a doubt; for had half the vigor been exerted to save the city that has been spent to overturn the Constitution, the enemy, I sincerely believe, had never been in it. The people were lost in a wilderness of unserviceable passions, and having confidence in no body, felt no inclination to unite. One gentleman at least made a merit of refusing to serve his distressed country, as a General of the militia, because his fancy in the Constitution, even before the sense of the people could be known, was not immediately gratified, and the excuse afforded to many a convenient shelter from actual service. I am surprised that government struggled through so well as it did, considering how great was the desertion, and how civil the pretence. There were others, and I mention it with respect, who quitting private opinion for public good, continued, and in some instances encreased their service.
Returning from this digression, I take up again the appointment of the civil Magistrate. It is an important point, and that not as a matter of debate (for I am fully persuaded that those who proposed the alteration cannot make their ground good upon it) but it is important in itself, being the channel through which the exercise of the laws circulate upon a country; therefore, every argument which shows the importance of the office to society, proves the danger of the new proposed method of appointment. Here the proposers, and myself, draw to a close line, and they will naturally perceive that my intention is to take their ground from them, and to erect the constitutional mode on the very reasons which they advance against it. They say that the office is important, and therefore the power of selecting fit persons ought to be invested in the government. I likewise say that the office is important, and therefore ought not to be made a government appointment; for it is not its importance only but the nature of its importance which we are mostly to consider. It is not an office which requires a peculiarity of genius or acquired accomplishments to fill, and which the public, considered as a public, may not be supposed to understand; that is, it is not the office of a professor of natural philosophy, or of mathematics, or of any branch of the arts or sciences, or of languages; but it is a civil office, an office of trust and honor, an office of decision, arbitration or compromise, between neighbors differing with each other, and between the claims of the State upon the individual, and the individual upon the State. It is established with a design to prevent frivolous and vexatious lawsuits, by healing disputes in the first instance; to secure property from invasion, and freedom from oppression; to give relief without the terror of expence, and administer justice from a goodness of heart: Therefore it requires those very kind qualifications in which the judgment of the public, as a public, is supposed to be the most complete, and this leads me to consider what the necessary qualifications in a magistrate are.
He ought to be neither proud, passionate [n]or given to drink; easy of access, and serenely affable in his deportment. Patient enough to hear a tale of wretchedness, and wise enough to discover invention from fact. He ought to understand the laws, not for practice like a lawyer, but for advice like a friend, or for decision like a Judge, and to be neither subtile in his refinements, nor obscure in his definitions. He ought to be a man of application as well as knowledge; and of sound, rather than of fine sense. He is to b$ the useful, rather the shining man, and to consider himself more like a physician to recover than the surgeon to cut off. He ought to have fortitude enough to be neither fascinated by splendor, nor womanlishly affected by a melancholy tale, and is always to remember that he is to decide on cases not on persons. Now, there is nothing in this collection that is either intricate or extraordinary, but is composed of those visible materials, which the generality of men are known either to have or to want. Therefore the private character quickly becomes a public one, and is easily known. Three parts of it being made up from the good man, and the rest from the wise one.
I confess myself quite at a loss to discover by what ideas the gentlemen are led who proposed the alteration. That they are unwisely making a rod for themselves and their heirs, is, to me, as clear as light; for surely no man, unless he sought to make a trade of government, would wish to arm it with powers that might be afterwards severely exercised over him as an individual. The experience of all the world is against their policy. Every instance of the kind has proved that government Magistrates will, in the line of their office, become government men. It is necessary that every State, for the convenience of business, should have a law officer of its own, but it would be the height of imprudence to make every Magistrate Attorney General. It is needless to say that the rotation in the Executive Council by frequent elections, makes this suspicion unnecessary. The Magistrate, so appointed, would know no change; the power, though not the persons that made him, would be always in being; he would officially become the humble servant of every succeeding Council, and the Council would in turn, possess him by a kind of heirship; his interest would be to please and their pleasure would become the line of his conduct. Surely no man who wished to live comfortably on his plantation, reputably on his trade, or independently on his fortune, would wish* to see a Magistrate so created and so circumstanced.
If ever we cast our eyes towards England, it ought to be rather to take warning by, than example. Their county Magistrates are created in the same manner which the new method proposes, and the consequence is, that they are, in general, the bears of the country and the spaniels of the government. It is a frequent recommendation to the letting of a farm, that there is neither a Peer nor a Justice in the neighborhood, and this dislike arises from that insufferable insolence which their mode of creation gives them. The most, and almost the only, respectable Magistrate in England is the Lord Mayor of the city of London, and he comes into office very nearly in the same manner which the Constitution has provided in the case of Justices. The Livery, that is the freemen of the city of London, choose two persons, out of which the Court of Aldermen select one, who is afterwards presented to the Executive power at St. James's for approbation; and what I ask, would the Livery of London think, if any party of men should propose to have the choice of their city Magistrate taken out of their hands, and vested solely in him whom they call a King? Good heavens, what would they not think! And what would they not do to prevent it! For to do them justice, they seem to be almost the only spirited body of men in the nation.
I feel ashamed to argue this point any longer. It seems like fighting, not against the wind-mill, but a butterfly; and therefore conclude with remarking on the supposed causes which betrayed the proposers into such an unwise, and unconstitutional a proposal.
How far the present Magistracy may be compared with that under the proprietary government, I will not undertake to be particular in, because I am not fond of investigating personal matters; otherwise I could show instances wherein the former was not only improper, but indecent and scandalous.
Perhaps some of our present Magistrates are not the best qualified, and that will ever be the case in any mode of electing or appointing either them or any other officers; yet we have this relief, that they are removable for misconduct whenever it shall be sufficiently proved. But this supposed deficiency in the choice of the man neither was, nor is, the fault of the Constitution, neither was it the fault of those who voted, but of those who did not vote. If men from indolence, or factiousness of temper, or a temporary fear of electing or being elected, or from any other cause, will neglect the exercise of their own rights, and persuade others into the same omission, they can have no just cause afterwards to quarrel with the consequences but with themselves. Neither do I know any deficiency in the present Magistracy equal to the weakness of judgment shown by the opposition; for admitting that the choice might have been better, yet the remedy which they have recommended is like cutting off a leg to cure a corn, and proposing to see the example themselves. This being the case, we have no right to wonder at the lameness of their judgment, or the slackness of their progress; for who that is found and in his senses, would enlist into a party where the necessary qualification is a defect. If the gentlemen choose to be cripples, and that not in the defence of liberty, but against it, they are welcome to the honor. It is perhaps a new law in heraldry, that those who invented their own arms x should have but one leg.
I here close my arguments for continuing the constitutional mode for electing and appointing Justices, in preference to the proposed scheme of investing that power in the Executive Council, and in so doing, I think it is visible, and with it to be generally understood, that I have not supported a party for the sake of a party, but a public right for a public good.
N.B. My next will be on the appointment of Militia Officers.