Candid and Critical Remarks on a Letter Signed Ludlow
The following article appeared originally in the Pennsylvania Journal of June 4, 1777, and has never before been reprinted. Ludlow's letter appeared in the Journal of May 21, 1777.
Some of Paine's arguments in the article are rather vague and definitely dated, but it is interesting to observe two points he raises. He emphasizes, for example, that "a man may be religiously happy without modes," thus revealing a trend of thought that he was to develop fully in the Age of Reason. Again, he reminds the people that more important than the details of this or that clause in a constitution, was "whether we should have one of our own forming or of the enemy's. This, to say the least, was a realistic approach to the problem.
EVERY subject for discussion may be treated two several ways, generally or particularly. In a general review exactness is not expected; but when a writer undertakes to examine and lay down the parts of his subject separately and systematically, the greatest possible degree of exactness is necessary, and a failure in this part would be fatal to him.
The writer of the letter in question has attempted the latter, and in the course of his reasonings, says, "the present Constitution is deficient in point of perspecuity and method." I am not considering whether he is writing for or against the Constitution, but how far he appears to be master of "perspecuity and method" himself; as, by that only, we can judge of his abilities to reform the errors of others.
Many pieces, by being distributed into parts of 1, 2, 3, etc. have much the appearance of order to the eye, but unless the matter be first justly arranged in the mind of the author, and transmitted in the same order into writing, his numbers 1, 2, 3 etc. will make no impression on the understanding of the reader; and this gentleman, whom I shall be very candid with, will, I fear, stand convicted on the same charge he has brought against the Constitution.
He sets out with giving, first, a sort of general description of "a Free Government." Secondly, a particular description of the parts thereof; each of which he has endeavored to illustrate by a simile; consequently, the same correspondence must exist between the similies as between the parts which they are supposed to represent: but if there be a want of harmony, the fault is, that either the similes are unnatural, the parts defective, or both. Thirdly, he proposes to "apply those principles (which ought rather to be called description) to the Bill of Rights, Constitution and Laws of Pennsylvania," against, he means, or for the purpose of detecting their imperfections.
"Every Free Government," he says, "should consist of three parts, viz. 1st, A Bill of Rights. 2dly, A Constitution. 3dly Laws."
Remark. As freedom depends as much on the Execution as on the Constitution, I conceive there to be something wanting to make the description complete.
"1st, The Bill of Rights should contain the great principles of natural and civil liberty. It should be to a community what the eternal laws and obligations of morality are to the conscience. It should be unalterable by any human power."
Remark. "The Bill of Rights should contain the great principles of natural and civil liberty." This is a huge metaphysical expression, and I conceive an erroneous one. This gentleman frequently confounds rights with principles, and uses them synonymously. I conceive a Bill of Rights should be a plain positive declaration of the rights themselves: and, instead of saying it should "contain the great principles of natural and civil liberty," that it should retain such natural rights as are either consistent with, or absolutely necessary toward our happiness in a state of civil government; for were all the great natural rights, or principles, as this writer calls them, to be admitted, it would be impossible that any government could be formed thereon, and instead of being a Bill of Rights fitted to a state of civil government, it would be a Bill of Rights fitted to man in a state of nature without any government at all. It would be an Indian Bill of Rights.
If a Bill of Rights, as this writer says, is to contain both natural and civil rights, then I cannot see how his following expression can be admitted, viz. "that it shall be unalterable by any human power." If we will have a Bill of Rights to be unalterable, it must be confined to natural rights only, for it is impossible to say what improvements may be made on civil ones; and as a matter of opinion for myself, I think it would be best so to do, and to comprehend all civil rights in that part which we call the Constitution; because, that is the part in which we are supposed to emerge from a state of nature, and erect ourselves into civil community for the mutual good and support of each other.
But here a matter arises, which this gentleman, in his description of a Bill of Rights, ought particularly to have attended to, but has wholly omitted, viz. What are natural rights and what are civil ones? I answer, A natural right is an animal right; and the power to act it, is supposed, either fully or in part, to be mechanically contained within ourselves as individuals. Civil rights are derived from the assistance or agency of other persons; they form a sort of common stock, which, by the consent of all, may be occasionally used for the benefit of any. They are substituted in the room of some natural rights, either defective in power or dangerous in practice, and are contrived to fit the members of the community with greater ease to themselves and safety to others, than what the natural ones could the individual in a state of nature: for instance, a man has a natural right to redress himself whenever he is injured, but the full exercise of this, as a natural right, would be dangerous to society, because it admits him a judge in his own cause; on the other hand, he may not be able, and must either submit to the injury or expose himself to greater: Therefore, the civil right of redressing himself by an appeal to public justice, which is the substitute, makes him stronger than the natural one, and less dangerous. Either party likewise, has a natural right to plead his own cause; this right is consistent with safety, therefore it is retained; but the parties may not be able, nay, they may be dumb, therefore the civil right of pleading by proxy, that is, by a council, is an appendage to the natural right and the trial by jury, is perfectly a civil right common to both parties.
I come now to the simile which this gentleman uses to illustrate his Bill of Rights by: "It should be," says he, "to a community what the eternal laws and obligations of morality are to the conscience." How "rights" which always imply inherent liberty can be compared with the laws of conscience, which always imply inherent restraint, I cannot conceive; they do not of their own natures admit of comparison. But this gentleman has unfortunately applied his comparison to the wrong part, for if a Bill of Rights be binding and restraining in the manner he expresses it, it is so not on the "community" because it is to them a prerogative, but on the Legislative and Executive powers, that they invade it not.
II. "A CONSTITUTION," says our author, "is the executive part of the Bill of Rights. It should contain the division and distribution of the power of the people. The modes and forms of making laws, of executing justice, and of transacting business: Also the limitation of power, as to time and jurisdiction. It is to a community what modes of worship are in religion. It should be unalterable by the legislature, and should be changed only by a representation of the people, chosen for that purpose." The last period is fully admitted.
Remark. How the "Constitution" can be called the "Executive part of the Bill of Rights," I am quite at a loss to conceive. The Constitution must be considered as a dead letter till put into execution by some external object; it has not the power of action in itself, therefore cannot be regarded as the executive of any thing. It should contain, says he, "the division and distribution of the power of the people," the modes and forms "of transacting business": These expressions are obscure. The Constitution does not "contain the division and distribution of the power of the people," but describes the portions of power with which the people invest the legislative and executive bodies, and the portions which they retain for themselves. His description, as I conceive, is partly unjust and partly perplexed; and the simile, by which he means to illustrate it, wholly unnatural. A Constitution, says he, "is to a community what modes of worship are in religion." I think it is a great deal more; a man may be religiously happy without modes, but he cannot be civilly happy without a Constitution. But taking this gentleman on his own plan it will follow, that, if a constitution "'contains the divisions and distributions of the power of the people," then must "modes of worship" contain the division and distribution of the power of religion. Again, if the Constitution be the "executive part of the Bill of Rights," then must "modes of worship be the executive part of the eternal laws and obligations of morality."
The fault of this gentleman is, that he writes straight forward without regard to consistency.
III. "Laws are the executive part of a constitution. They cease to be binding whenever they transgress the principles of Liberty, as laid down in the Constitution and Bill of Rights. They are to a community what the practice of morality is in religion."
Remark. There is the same confusion of ideas in this description as in the former two. Laws should be made consistent with and agreeable to the Constitution and the Bill of Rights. They naturally cease to be binding when they oppose them, and when they vary from them, must be amended, and this is all that can be said. But to suppose "LAWS executive" is a false conception: And how is it possible to compare "Laws" which are in themselves motionless and have no capacity of action, with the practice of morality, which not only implies motion, but the power of continuing it, and even of generating it, is, to me, and, I believe, to all others, incomprehensible. But to take this gentleman again on his own grounds; if the "laws" be, as he says, "the executive part of the Constitution," then must "the practice of morality" be the "executive part of modes of worship," which no man, not even the writer of it, can give his consent to.
Having laid down these three paragraphs, he proceeds to "apply them," but what he means by applying them I cannot conceive, as all that follows might as well stand without them as with them.
Whatever faults or defects the Constitution has, and no doubt it has some (for I suppose nothing is perfect, nor ever will), it ought to be every man's wish to have them pointed out, and every man's duty to have them amended; but I see no use can arise from this loose unconnected way of writing, but the propagation of further errors.
Several very scurrilous pieces under different signatures have appeared in the papers on both sides the question. In Dunlap's paper of the 18th of March is a piece signed "Common Sense" which is the only one that is mine since the dispute first began. The design of that piece is to keep men in temper with each other, and to show the impropriety of having our minds taken up about a form of government (which we can reconsider at any time) till we knew whether we should have one of our own forming or of the enemy's. And, as a man ought to be ashamed to publish any thing which he is ashamed to own, I have therefore put a signature to this by which I shall be known; and have likewise left my real name with the Printer, which he is welcome to give to any one that requires it.