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“The Structure of the Government Must Furnish the Proper Checks and Balances between the Different Departments” 

(Federalist Paper no. 51)

By James Madison or Alexander Hamilton

February 8, 1788. 

[Madison, James and Alexander Hamilton. “Number 51.” The Federalist Papers. Originally published in the New York Packet. Friday, February 8, 1788. The Avalon Project. Yale Law School Lillian Goldman Law Library. http://avalon.law.yale.edu/18th_century/fed51.asp. Accessed 31 March 2017. In the Public Domain.]


To the People of the State of New York:

TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention.

In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them.

It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices. Were the executive magistrate, or the judges, not independent of the legislature in this particular, their independence in every other would be merely nominal. But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State. But it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit. It may even be necessary to guard against dangerous encroachments by still further precautions. As the weight of the legislative authority requires that it should be thus divided, the weakness of the executive may require, on the other hand, that it should be fortified.

An absolute negative on the legislature appears, at first view, to be the natural defense with which the executive magistrate should be armed. But perhaps it would be neither altogether safe nor alone sufficient. On ordinary occasions it might not be exerted with the requisite firmness, and on extraordinary occasions it might be perfidiously abused. May not this defect of an absolute negative be supplied by some qualified connection between this weaker department and the weaker branch of the stronger department, by which the latter may be led to support the constitutional rights of the former, without being too much detached from the rights of its own department? If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several State constitutions, and to the federal Constitution it will be found that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.

There are, moreover, two considerations particularly applicable to the federal system of America, which place that system in a very interesting point of view. First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.

There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable. The first method prevails in all governments possessing an hereditary or self-appointed authority. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties. The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government. This view of the subject must particularly recommend a proper federal system to all the sincere and considerate friends of republican government, since it shows that in exact proportion as the territory of the Union may be formed into more circumscribed Confederacies, or States oppressive combinations of a majority will be facilitated: the best security, under the republican forms, for the rights of every class of citizens, will be diminished: and consequently the stability and independence of some member of the government, the only other security, must be proportionately increased. Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

It can be little doubted that if the State of Rhode Island was separated from the Confederacy and left to itself, the insecurity of rights under the popular form of government within such narrow limits would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it. In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good; whilst there being thus less danger to a minor from the will of a major party, there must be less pretext, also, to provide for the security of the former, by introducing into the government a will not dependent on the latter, or, in other words, a will independent of the society itself. It is no less certain than it is important, notwithstanding the contrary opinions which have been entertained, that the larger the society, provided it lie within a practical sphere, the more duly capable it will be of self-government. And happily for the REPUBLICAN CAUSE, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the FEDERAL PRINCIPLE.

PUBLIUS.

Lectures on Law, Chapters 1–4, 7, 9

1790

By James Wilson

[James Wilson. "Lectures on Law." Collected Works of James Wilson. Volume 1. Edited by Mark David Hall and Kermit L. Hall. Indianapolis, Ind.: The Liberty Fund. 2007. Chapters 1–4, 7, 9. Online Library of Liberty. Used with permission of the Liberty Fund.]


CONTENTS:

Chapter I: Introduction
Chapter II: Of the General Principles of Law and Obligation
Chapter III: Of the Law of Nature
Chapter IV: Of the Law of Nations
Chapter V: Of Municipal Law [OMITTED]
Chapter VI: Of Man, As an Individual [OMITTED]
Chapter VII: Of Man, As a Member of Society
Chapter VIII: Of Man, As a Member of a Confederation [OMITTED]
Chapter IX: Of Man, As a Member of the Great Commonwealth of Nations (Excerpt)
Chapter X: Of Government [OMITTED]
Chapter XI: Comparison of the Constitution of the United States with That of Great Britain [OMITTED]

 

IN THE YEARS ONE THOUSAND SEVEN HUNDRED AND NINETY, AND ONE THOUSAND SEVEN HUNDRED AND NINETY ONE

PART I

CHAPTER I

Introductory Lecture. Of the Study of the Law in the United States.

. . .

Were I called upon for my reasons why I deem so highly of the American character, I would assign them in a very few words—That character has been eminently distinguished by the love of liberty, and the love of law.

. . .

. . . But law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge. The same course of study, properly directed, will lead us to the knowledge of both. Indeed, neither of them can be known, because neither of them can exist, without the other. Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness. In denominating, therefore, that science, by which the knowledge of both is acquired, it is unnecessary to preserve, in terms, the distinction between them. That science may be named, as it has been named, the science of law.

The science of law should, in some measure, and in some degree, be the study of every free citizen, and of every free man. Every free citizen and every free man has duties to perform and rights to claim. Unless, in some measure, and in some degree, he knows those duties and those rights, he can never act a just and an independent part.

. . .

PLAN

. . .

I begin with the general principles of law and obligation. These I shall investigate fully and minutely; because they are the basis of every legal system; and because they have been much misrepresented, or much misunderstood.

Next, I shall proceed to give you a concise and very general view of the law of nature, of the law of nations, and of municipal law.

I shall then consider man, who is the subject of all, and is the author as well as the subject of the last, and part of the second of these species of law. This great title of my plan, dignified and interesting as it is, must be treated in a very cursory manner in this course. I will, however, select some of the great truths which seem best adapted to a system of law. I will view man as an individual, as a member of society, as a member of a confederation, and as a part of the great commonwealth of nations.

. . .

CHAPTER II

Of the General Principles of Law and Obligation

Order, proportion, and fitness pervade the universe. Around us, we see; within us, we feel; above us, we admire a rule, from which a deviation cannot, or should not, or will not be made. On the inanimate part of the creation, are impressed the continued energies of motion and of attraction, and other energies, varied and yet uniform, all designated and ascertained. Animated nature is under a government suited to every genus, to every species, and to every individual, of which it consists. Man, the nexus utriusque mundi [“the joining point of the two worlds,” that is, of the material and the immaterial worlds], composed of a body and a soul, possessed of faculties intellectual and moral, finds or makes a system of regulations, by which his various and important nature, in every period of his existence, and in every situation, in which he can be placed, may be preserved, improved, and perfected. The celestial as well as the terrestrial world knows its exalted but prescribed course. This angels and the spirits of the just, made perfect, do “clearly behold, and without any swerving observe.” Let humble reverence attend us as we proceed. The great and incomprehensible Author, and Preserver, and Ruler of all things—he himself works not without an eternal decree.

Such—and so universal is law. “Her seat,” to use the sublime language of the excellent Hooker, “is the bosom of God; her voice, the harmony of the world; all things in heaven and earth do her homage; the very least as feeling her care, and the greatest as not exempted from her power. Angels and men, creatures of every condition, though each in different sort and manner, yet all with uniform consent, admiring her as the mother of their peace and joy.” Before we descend to the consideration of the several kinds and parts of this science, so dignified and so diversified, it will be proper, and it will be useful, to contemplate it in one general and comprehensive view; and to select some of its leading and luminous properties, which will serve to guide and enlighten us in that long and arduous journey, which we now undertake.

. . .

. . . I hesitate, at present, to give a definition of law. My hesitation is increased by the fate of the far greatest number of those, who have hitherto attempted it. Many, as it is natural to suppose, and labored have been the efforts to infold law within this scientific circle; but little satisfaction—little instruction has been the result. Almost every writer, sensible of the defects, the inaccuracies, or the improprieties of the definitions that have gone before him, has endeavored to supply their place with something, in his own opinion, more proper, more accurate, and more complete. He has been treated by his successors, as his predecessors have been treated by him: and his definition has had only the effect of adding one more to the lengthy languid list. . . .

Some of them, indeed, have a claim to attention: one, in particular, will demand it, for reasons striking and powerful—I mean that given by the Commentator [Sir William Blackstone] on the laws of England.

. . .

“Law,” says he, “in its most general and comprehensive sense, signifies a rule of action.”[1] In its proper signification, a rule is an instrument; by which a [straight] line—the shortest and truest of all—may be drawn from one point to another. In its moral or figurative sense, it denotes a principle or power, that directs a man surely and concisely to attain the end, which he proposes.

Law is called a rule, in order to distinguish it from a sudden, a transient, or a particular order: uniformity, permanency, stability, characterize a law. Again; law is called a rule, to denote that it carries along with it a power and principle of obligation. Concerning the nature and the cause of obligation, much ingenious disputation has been held by philosophers and writers on jurisprudence. . . .

This interesting subject will claim and obtain our attention, next after what we have to say concerning law in general.

When we speak of a rule with regard to human conduct, we imply two things. 1. That we are susceptible of direction. 2. That, in our conduct, we propose an end. The brute creation act not from design. They eat, they drink, they retreat from the inclemencies of the weather, without considering what their actions will ultimately produce. But we have faculties, which enable us to trace the connection between actions and their effects; and our actions are nothing else but the steps which we take, or the means which we employ, to carry into execution the effects which we intend.

Hooker, I think, conveys a fuller and stronger conception of law, when he tells us, that “it assigns unto each thing the kind, that it moderates the force and power, that it appoints the form and measure of working.”[2] Not the direction merely, but the kind also, the energy; and the proportion of actions is suggested in this description.

Some are of opinion, that law should be defined “a rule of acting or not acting;”[3] because actions may be forbidden as well as commanded. But the same excellent writer, whom I have just now cited, gives a very proper answer to this opinion, and shows the addition to be unnecessary, by finely pursuing the metaphor, which we have already mentioned. “We must not suppose that there needeth one rule to know the good, and another to know the evil by. For he that knoweth what is straight, doth even thereby discern what is crooked. Goodness in actions is like unto straightness; wherefore that which is well done, we term right.”[4]

. . .

. . . Law is a rule “prescribed.” A simple resolution, confined within the bosom of the legislator, without being notified, in some fit manner, to those for whose conduct it is to form a rule, can never, with propriety, be termed a law.

There are many ways by which laws may be made sufficiently known. They may be printed and published. Written copies of them may be deposited in publick libraries, or other places, where every one interested may have an opportunity of perusing them. They may be proclaimed in general meetings of the people. The knowledge of them may be disseminated by long and universal practice. “Confirmed custom,” says a writer on Roman jurisprudence, “is deservedly considered as a law. For since written laws bind us for no other reason than because they are received by the judgment of the people; those laws, which the people have approved, without writing, are also justly obligatory on all. For where is the difference, whether the people declare their will by their suffrage, or by their conduct? This kind of law is said to be established by manners.”

Of all yet suggested, the mode for the promulgation of human laws by custom seems the most significant, and the most effectual. It involves in it internal evidence, of the strongest kind, that the law has been introduced by common consent; and that this consent rests upon the most solid basis—experience as well as opinion. This mode of promulgation points to the strongest characteristic of liberty, as well as of law. For a consent thus practically given, must have been given in the freest and most unbiased manner.

. . .

Laws may be promulgated by reason and conscience, the divine monitors within us. They are thus known as effectually, as by words or by writing: indeed they are thus known in a manner more noble and exalted. For, in this manner, they may be said to be engraven by God on the hearts of men: in this manner, he is the promulgator as well as the author of natural law. If a simple resolution cannot have the force of a law before it be promulgated; we may certainly hazard the position—that it cannot have the force of a law, before it be made: in other words, that ex post facto instruments, claiming the title and character of laws, are impostors.

. . .

The definition of law in the Commentaries proceeds in this manner. “Law is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.”[5] A superior! Let us make a solemn pause—Can there be no law without a superior? Is it essential to law, that inferiority should be involved in the obligation to obey it? Are these distinctions at the root of all legislation?

There is a law, indeed, which flows from the Supreme of being—a law, more distinguished by the goodness, than by the power of its allgracious Author. But there are laws also that are human; and does it follow, that, in these, a character of superiority is inseparably attached to him, who makes them; and that a character of inferiority is, in the same manner, inseparably attached to him, for whom they are made? What is this superiority? Who is this superior? By whom is he constituted? Whence is his superiority derived? Does it flow from a source that is human? Or does it flow from a source that is divine? From a human source it cannot flow; for no stream issuing from thence can rise higher than the fountain.

If the prince, who makes laws for a people, is superior, in the terms of the definition, to the people, who are to obey; how comes he to be vested with the superiority over them?

If I mistake not, this notion of superiority, which is introduced as an essential part in the definition of a law—for we are told that a law always[6] supposes some superior, who is to make it—this notion of superiority contains the germ of the divine right—a prerogative impiously attempted to be established—of princes, arbitrarily to rule; and of the corresponding obligation—a servitude tyrannically attempted to be imposed—on the people, implicitly to obey. Despotism, by an artful use of “superiority” in politics; and skepticism, by an artful use of “ideas” in metaphysics, have endeavored—and their endeavors have frequently been attended with too much success—to destroy all true liberty and sound philosophy. By their baneful effects, the science of man and the science of government have been poisoned to their very fountains. But those destroyers of others have met, or must meet, with their own destruction.

. . .

. . . [L]et us receive instruction from a well informed and a well experienced master— . . . from the late [King] Frederick of Prussia:

. . .

“Here is the error of the greatest part of princes. They believe that God has expressly, and from a particular attention to their grandeur, their happiness, and their pride, formed their subjects for no other purpose, than to be the ministers and instruments of their unbridled passions. As the principle, from which they set out, is false; the consequences cannot be otherwise than infinitely pernicious. Hence the unregulated passion for false glory—hence the inflamed desire of conquest—hence the oppressions laid upon the people—hence the indolence and dissipation of princes—hence their ambition, their injustice, their inhumanity, their tyranny—hence, in short, all those vices, which degrade the nature of man.

“If they would disrobe themselves of these erroneous opinions; if they would ascend to the true origin of their appointment; they would see, that their elevation and rank, of which they are so jealous, are, indeed, nothing else than the work of the people; they would see, that the myriads of men, placed under their care, have not made themselves the slaves of one single man, with a view to render him more powerful and more formidable; have not submitted themselves to a fellow citizen, in order to become the sport of his fancies, and the martyrs of his caprice; but have chosen, from among themselves, the man, whom they believed to be the most just, that he might govern them; the best, that he might supply the place of a father; the most humane, that he might compassionate and relieve their misfortunes; the most valiant, that he might defend them against their enemies; the most wise, that he might not engage them inconsiderately in ruinous and destructive wars; in one word, the man the most proper to represent the body of the state, and in whom the sovereign power might become a bulwark to justice and to the laws, and not an engine, by the force of which tyranny might be exercised, and crimes might be committed with impunity.

This principle being once established, princes would avoid the two rocks, which, in all ages, have produced the ruin of empires, and distraction in the political world—“ungoverned ambition, and a listless inattention to affairs.”[7] “They would often reflect that they are men, as well as the least of their subjects—that if they are the first judges, the first generals, the first financiers, the first ministers of society; they are so, for the purpose of fulfilling the duties, which those names import. They will reflect, that they are only the first servants of the state, bound to act with the same integrity, the same caution, and the same entire disinterestedness, as if, at every moment, they were to render an account of their administration to the citizens.”[8]

. . .

Now that the will of a superiour is discarded, as an improper principle of obligation in human laws, it is natural to ask—What principle shall be introduced in its place? In its place I introduce—the consent of those whose obedience the law requires. This I conceive to be the true origin of the obligation of human laws. . . .

Of law there are different kinds. All, however, may be arranged in two different classes. 1. Divine. 2. Human laws. The descriptive epithets employed denote, that the former have God, the latter, man, for their author.

The laws of God may be divided into the following species.

I. That law, the book of which we are neither able nor worthy to open. Of this law, the author and observer is God. He is a law to himself, as well as to all created things. This law we may name the “law eternal.”

II. That law, which is made for angels and the spirits of the just made perfect. This may be called the “law celestial.” This law, and the glorious state for which it is adapted, we see, at present, but darkly and as through a glass: but hereafter we shall see even as we are seen; and shall know even as we are known. From the wisdom and the goodness of the adorable Author and Preserver of the universe, we are justified in concluding, that the celestial and perfect state is governed, as all other things are, by his established laws. What those laws are, it is not yet given us to know; but on one truth we may rely with sure and certain confidence—those laws are wise and good. For another truth we have infallible authority—those laws are strictly obeyed: “In heaven his will is done.”

III. That law, by which the irrational and inanimate parts of the creation are governed. The great Creator of all things has established general and fixed rules, according to which all the phenomena of the material universe are produced and regulated. These rules are usually denominated laws of nature. The science, which has those laws for its object, is distinguished by the name of natural philosophy. It is sometimes called, the philosophy of body. Of this science, there are numerous branches.

IV. That law, which God has made for man in his present state; that law, which is communicated to us by reason and conscience, the divine monitors within us, and by the sacred oracles, the divine monitors without us. This law has undergone several subdivisions, and has been known by distinct appellations, according to the different ways in which it has been promulgated, and the different objects which it respects.

As promulgated by reason and the moral sense, it has been called natural; as promulgated by the holy scriptures, it has been called revealed law.

As addressed to men, it has been denominated the law of nature; as addressed to political societies, it has been denominated the law of nations.b

But it should always be remembered, that this law, natural or revealed, made for men or for nations, flows from the same divine source: it is the law of God.

Nature, or, to speak more properly, the Author of nature, has done much for us; but it is his gracious appointment and will, that we should also do much for ourselves. What we do, indeed, must be founded on what he has done; and the deficiencies of our laws must be supplied by the perfections of his. Human law must rest its authority, ultimately, upon the authority of that law, which is divine.

Of that law, the following are maxims—that no injury should be done—that a lawful engagement, voluntarily made, should be faithfully fulfilled. We now see the deep and the solid foundations of human law.

It is of two species. 1. That which a political society makes for itself. This is municipal law. 2. That which two or more political societies make for themselves. This is the voluntary law of nations.

In all these species of law—the law eternal—the law celestial—the law natural—the divine law, as it respects men and nations—the human law, as it also respects men and nations—man is deeply and intimately concerned. Of all these species of law, therefore, the knowledge must be most important to man.

Those parts of natural philosophy, which more immediately relate to the human body, are appropriated to the profession of [medicine].

The law eternal, the law celestial, and the law divine, as they are disclosed by that revelation, which has brought life and immortality to light, are the more peculiar objects of the profession of divinity.

The law of nature, the law of nations, and the municipal law form the objects of the profession of law.

From this short, but plain and, I hope, just statement of things, we perceive a principle of connection between all the learned professions; but especially between the two last mentioned. Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other. The divine law, as discovered by reason and the moral sense, forms an essential part of both.

From this statement of things, we also perceive how important and dignified the profession of the law is, when traced to its sources, and viewed in its just extent. The immediate objects of our attention are, the law of nature, the law of nations, and the municipal law of the United States, and of the several states which compose the Union. It will not be forgotten, that the constitutions of the United States, and of the individual states, form a capital part of their municipal law. On the two first of these three great heads, I shall be very general. On the last, especially on those parts of it, which comprehend the constitutions and publick law, I shall be more particular and minute.

CHAPTER III

Of the Law of Nature

In every period of our existence, in every situation, in which we can be placed, much is to be known, much is to be done, much is to be enjoyed. But all that is to be known, all that is to be done, all that is to be enjoyed, depends upon the proper exertion and direction of our numerous powers. In this immense ocean of intelligence and action, are we left without a compass and without a chart? Is there no pole star, by which we may regulate our course? Has the all-gracious and all-wise Author of our existence formed us for such great and such good ends; and has he left us without a conductor to lead us in the way, by which those ends may be attained? Has he made us capable of observing a rule, and has he furnished us with no rule, which we ought to observe? Let us examine these questions—for they are important ones—with patience and with attention. Our labors will, in all probability, be amply repaid. We shall probably find that, to direct the more important parts of our conduct, the bountiful Governor of the universe has been graciously pleased to provide us with a law; and that, to direct the less important parts of it, he has made us capable of providing a law for ourselves.

That our Creator has a supreme right to prescribe a law for our conduct, and that we are under the most perfect obligation to obey that law, are truths established on the clearest and most solid principles.

In the course of our remarks on that part of Sir William Blackstone’s definition of law, which includes the idea of a superior as essential to it, we remarked, with particular care, that it was only with regard to human laws that we controverted the justness or propriety of that idea. It was incumbent on us to mark this distinction particularly; for with regard to laws which are divine, they truly come from a superior—from Him who is supreme.

Between beings, who, in their nature, powers, and situation, are so perfectly equal, that nothing can be ascribed to one, which is not applicable to the other, there can be neither superiority nor dependence. With regard to such beings, no reason can be assigned, why anyone should assume authority over others, which may not, with equal propriety, be assigned, why each of those others should assume authority over that one. To constitute superiority and dependence, there must be an essential difference of qualities, on which those relations may be founded.[9]

Some allege, that the sole superiority of strength, or, as they express it, an irresistible power, is the true foundation of the right of prescribing laws. “This superiority of power gives,” say they, “a right of reigning, by the impossibility, in which it places others, of resisting him, who has so great an advantage over them.”[10]

Others derive the right of prescribing laws and imposing obligations from superiour excellence of nature. “This,” say they, “not only renders a being independent of those, who are of a nature inferiour to it; but leads us to believe, that the latter were made for the sake of the former.” For a proof of this, they appeal to the constitution of man. “Here,” they tell us, “the soul governs, as being the noblest part.” “On the same foundation,” they add, “the empire of man over the brute creation is built.”[11]

Others, again, say, that “properly speaking, there is only one general source of superiority and obligation. God is our creator: in him we live, and move, and have our being: from him we have received our intellectual and our moral powers: he, as master of his own work, can prescribe to it whatever rules to him shall seem meet. Hence our dependence on our Creator: hence his absolute power over us. This is the true source of all authority.”[12]

With regard to the first hypothesis, it is totally insufficient; nay, it is absolutely false. Because I cannot resist, am I obliged to obey? Because another is possessed of superiour force, am I bound to acknowledge his will as the rule of my conduct? Every obligation supposes motives that influence the conscience and determine the will, so that we should think it wrong not to obey, even if resistance was in our power. But a person, who alleges only the law of the strongest, proposes no motive to influence the conscience, or to determine the will. Superiour force may reside with predominant malevolence. Has force, exerted for the purposes of malevolence, a right to command? Can it impose an obligation to obey? No. Resistance to such force is a right; and, if resistance can prove effectual, it is a duty also. On some occasions, all our efforts may, indeed, be useless; and an attempt to resist would frustrate its own aim: but, on such occasions, the exercise of resistance only is suspended; the right of resistance is not extinguished: we may continue, for a time, under a constraint; but we come not under an obligation: we may suffer all the external effects of superiour force; but we feel not the internal influence of superiour authority?[13]

The second hypothesis has in it something plausible; but, on examination, it will not be found to be accurate. Wherever a being of superiour excellence is found, his excellence, as well as every other truth, ought, on proper occasions, to be acknowledged; we will go farther; it ought, as every thing excellent ought, to be esteemed. But must we go farther still? Is obedience the necessary consequence of honest acknowledgment and just esteem? Here we must make a pause: we must make some inquiries before we go forward. In what manner is this being of superiour excellence connected with us? What are his dispositions with regard to us? By what effects, if by any, will his superiour excellence be displayed? Will it be exerted for our happiness; or, as to us, will it not be exerted at all? We acknowledge—we esteem excellence; but till these questions are answered, we feel not ourselves under an obligation to obey it.[14] If the opinion of Epicurus concerning his divinities—that they were absolutely indifferent to the happiness and interests of men—was admitted for a moment;g the inference would unquestionably be—that they were not entitled to human obedience.

The third hypothesis contains a solemn truth, which ought to be examined with reverence and awe. It resolves the supreme right of prescribing laws for our conduct, and our indispensable duty of obeying those laws, into the omnipotence of the Divinity. This omnipotence let us humbly adore. Were we to suppose—but the supposition cannot be made—that infinite goodness could be disjoined from almighty power—but we cannot—must not proceed to the inference. No, it never can be drawn; for from almighty power infinite goodness can never be disjoined. Let us join, in our weak conceptions, what are inseparable in their incomprehensible Archetype—infinite power—infinite wisdom—infinite goodness; and then we shall see, in its resplendent glory, the supreme right to rule: we shall feel the conscious sense of the perfect obligation to obey.

His infinite power enforces his laws, and carries them into full and effectual execution. His infinite wisdom knows and chooses the fittest means for accomplishing the ends which he proposes. His infinite goodness proposes such ends only as promote our felicity. By his power, he is able to remove whatever may possibly injure us, and to provide whatever is conducive to our happiness. By his wisdom, he knows our nature, our faculties, and our interests: he cannot be mistaken in the designs, which he proposes, nor in the means, which he employs to accomplish them. By his goodness, he proposes our happiness: and to that end directs the operations of his power and wisdom. Indeed, to his goodness alone we may trace the principle of his laws. Being infinitely and eternally happy in himself, his goodness alone could move him to create us, and give us the means of happiness. The same principle, that moved his creating, moves his governing power. The rule of his government we shall find to be reduced to this one paternal command—Let man pursue his own perfection and happiness.

What an enrapturing view of the moral government of the universe! Over all, goodness infinite reigns, guided by unerring wisdom, and supported by almighty power. What an instructive lesson to those who think, and are encouraged by their flatterers to think, that a portion of divine right is communicated to their rule. If this really was the case; their power ought to be subservient to their goodness, and their goodness should be employed in promoting the happiness of those, who are intrusted to their care. But princes, and the flatterers of princes, are guilty, in two respects, of the grossest errour and presumption. They claim to govern by divine institution and right. The principles of their government are repugnant to the principles of that government, which is divine. The principle of the divine government is goodness: they plume themselves with the gaudy insignia of power.

. . .

Where a supreme right to give laws exists, on one side, and a perfect obligation to obey them exists, on the other side; this relation, of itself, suggests the probability that laws will be made.

When we view the inanimate and irrational creation around and above us, and contemplate the beautiful order observed in all its motions and appearances; is not the supposition unnatural and improbable—that the rational and moral world should be abandoned to the frolicks of chance, or to the ravage of disorder? What would be the fate of man and of society, was every one at full liberty to do as he listed, without any fixed rule or principle of conduct, without a helm to steer him—a sport of the fierce gusts of passion, and the fluctuating billows of caprice?

To be without law is not agreeable to our nature; because, if we were without law, we should find many of our talents and powers hanging upon us like useless incumbrances. Why should we be illuminated by reason, were we only made to obey the impulse of irrational instinct? Why should we have the power of deliberating, and of balancing our determinations, if we were made to yield implicitly and unavoidably to the influence of the first impressions? Of what service to us would reflection be, if, after reflection, we were to be carried away irresistibly by the force of blind and impetuous appetites?

Without laws, what would be the state of society? The more ingenious and artful the twolegged animal, man, is, the more dangerous he would become to his equals: his ingenuity would degenerate into cunning; and his art would be employed for the purposes of malice. He would be deprived of all the benefits and pleasures of peaceful and social life: he would become a prey to all the distractions of licentiousness and war.

Is it probable—we repeat the question—is it probable that the Creator, infinitely wise and good, would leave his moral world in this chaos and disorder?

If we enter into ourselves, and view with attention what passes in our own breasts, we shall find, that what, at first, appeared probable, is proved, on closer examination, to be certain; we shall find, that God has not left himself without a witness, nor us without a guide.

We have already observed, that, concerning the nature and cause of obligation, many different opinions have been entertained, and much ingenious disputation has been held, by philosophers and writers on jurisprudence. It will not be improper to take a summary view of those opinions.

Some philosophers maintain, that all obligation arises from the relations of things;[15] from a certain proportion or disproportion, a certain fitness or unfitness, between objects and actions, which give a beauty to some, and a deformity to others. They say, that the rules of morality are founded on the nature of things; and are agreeable to the order necessary for the beauty of the universe.[16]

Others allege, that every rule whatever of human actions carries with it a moral necessity of conforming to it; and consequently produces a sort of obligation. Every rule, say they, implies a design, and the will of attaining a certain end. He, therefore, who proposes a particular end, and knows the rule by which alone he can accomplish it, finds himself under a moral necessity of observing that rule. If he did not observe it, he would act a contradictory part; he would propose the end, and neglect the only means, by which he could obtain it. There is a reasonable necessity, therefore, to prefer one manner of acting before another; and every reasonable man finds himself engaged to this, and prevented from acting in a contrary manner. In other words, he is obliged: for obligation is nothing more than a restriction of liberty produced by reason. Reason, then, independent of law, is sufficient to impose some obligation on man, and to establish a system of morality and duty.[17]

But, according to others, the idea of obligation necessarily implies a being, who obliges, and must be distinct from him, who is obliged. If the person, on whom the obligation is imposed, is the same as he who imposes it; he can disengage himself from it whenever he pleases: or, rather, there is no obligation. Obligation and duty depend on the intervention of a superiour, whose will is manifested by law. If we abstract from all law, and consequently from a legislator; we shall have no such thing as right, obligation, duty, or morality.[18]

Others, again, think it necessary to join the last two principles together, in order to render the obligation perfect.[19] Reason, say they, is the first rule of man, the first principle of morality, and the immediate cause of all primitive obligation. But man being necessarily dependent on his Creator, who has formed him with wisdom and design, and who, in creating him, has proposed some particular ends; the will of God is another rule of human actions, another principle of morality, obligation, and duty. On this distinction, the kinds of obligation, external and internal, are founded. These two principles must be united, in order to form a complete system of morality, really founded on the nature and state of man. As a rational being, he is subject to reason: as a creature of God, to his supreme will. Thus, reason and the divine will are perfectly reconciled, are naturally connected, and are strengthened by their junction.[20]

The cause of obligation is laid, by some philosophers, in utility.[21] Actions, they tell us, are to be estimated by their tendency to promote happiness. Whatever is expedient, is right. It is the utility, alone, of any moral rule, which constitutes its obligation.

Congenial with this principle, is another, which has received the sanction of some writers—that sociability, or the care of maintaining society properly, is the fountain of obligation and right: for to every right, there must be a corresponding obligation. From this principle the inference is drawn, that every one is born, not for himself alone, but for the whole human kind.[22]

Further&emdash;many philosophers derive our obligation to observe the law of nature from instinctive affections, or an innate moral sense.[23] This is the sense, they tell us, by which we perceive the qualities of right and wrong, and the other moral qualities in actions.

With regard, then, both to the meaning and the cause of obligation, much diversity of sentiment, much ambiguity, and much obscurity have, it appears, prevailed. It is a subject of inquiry, however, that well deserves to be investigated, explained, illustrated, and placed in its native splendour and dignity. In order to do this, it will be proper to ascertain the precise state of the question before us. It is this—what is the efficient cause of moral obligation—of the eminent distinction between right and wrong? This has been often and injudiciously blended with another question, connected indeed with it, but from which it ought to be preserved separate and distinct. That other question is—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the eminent distinction, which we have just now mentioned? The first question points to the principle of obligation: the second points to the means by which our obligation to perform a specified action, or a series of specified actions, may be deduced. The first has been called by philosophers—principium essendi—the principle of existence; the principle which constitutes obligation. The second has been called by them—principium cognoscendi—the principle of knowing it; the principle by which it may be proved or perceived. In a commonwealth, the distinction between these two questions is familiar and easy. If the question is put—what is the efficient cause of the obligation upon the citizens to obey the laws of the state?—the answer is ready—the will of those, by whose authority the laws are made. If the other question is put—how shall we, in a particular instance, or in a series of particular instances, ascertain the laws, which the citizens ought to obey?—reference is immediately made to the code of laws.

Having thus stated the question—what is the efficient cause of moral obligation?—I give it this answer—the will of God. This is the supreme law.[24] His just and full right of imposing laws, and our duty in obeying them, are the sources of our moral obligations. If I am asked—why do you obey the will of God? I answer—because it is my duty so to do. If I am asked again—how do you know this to be your duty? I answer again—because I am told so by my moral sense or conscience. If I am asked a third time—how do you know that you ought to do that, of which your conscience enjoins the performance? I can only say, I feel that such is my duty. Here investigation must stop; reasoning can go no farther. The science of morals, as well as other sciences, is founded on truths, that cannot be discovered or proved by reasoning. Reason is confined to the investigation of unknown truths by the means of such as are known. We cannot, therefore, begin to reason, till we are furnished, otherwise than by reason, with some truths, on which we can found our arguments. Even in mathematicks, we must be provided with axioms perceived intuitively to be true, before our demonstrations can commence. Morality, like mathematicks, has its intuitive truths, without which we cannot make a single step in our reasonings upon the subject.[25] Such an intuitive truth is that, with which we just now closed our investigation. If a person was not possessed of the feeling before mentioned; it would not be in the power of arguments, to give him any conception of the distinction between right and wrong. These terms would be to him equally unintelligible, as the term colour to one who was born and has continued blind. But that there is, in human nature, such a moral principle, has been felt and acknowledged in all ages and nations.

Now that we have stated and answered the first question; let us proceed to the consideration of the second—how shall we, in particular instances, learn the dictates of our duty, and make, with accuracy, the proper distinction between right and wrong; in other words, how shall we, in particular cases, discover the will of God? We discover it by our conscience, by our reason, and by the Holy Scriptures. The law of nature and the law of revelation are both divine: they flow, though in different channels, from the same adorable source. It is, indeed, preposterous to separate them from each other. The object of both is—to discover the will of God—and both are necessary for the accomplishment of that end.

I. The power of moral perception is, indeed, a most important part of our constitution. It is an original power—a power of its own kind; and totally distinct from the ideas of utility and agreeableness. By that power, we have conceptions of merit and demerit, of duty and moral obligation. By that power, we perceive some things in human conduct to be right, and others to be wrong. We have the same reason to rely on the dictates of this faculty, as upon the determinations of our senses, or of our other natural powers. When an action is represented to us, flowing from love, humanity, gratitude, an ultimate desire of the good of others; though it happened in a country far distant, or in an age long past, we admire the lovely exhibition, and praise its author. The contrary conduct, when represented to us, raises our abhorrence and aversion. But whence this secret chain betwixt each person and mankind? If there is no moral sense, which makes benevolence appear beautiful; if all approbation be from the interest of the approver;

     “What’s Hecuba to us, or we to Hecuba?” (Hamlet, paraphrase)

The mind, which reflects on itself, and is a spectator of other minds, sees and feels the soft and the harsh, the agreeable and the disagreeable, the foul and the fair, the harmonious and the dissonant, as really and truly in the affections and actions, as in any musical numbers, or the outward forms or representations of sensible things. It cannot withhold its approbation or aversion in what relates to the former, any more than in what relates to the latter, of those subjects. To deny the sense of a sublime and beautiful and of their contraries in actions and things, will appear an affectation merely to one who duly considers and traces the subject. Even he who indulges this affectation cannot avoid the discovery of those very sentiments, which he pretends not to feel. A Lucretius[26] or a Hobbes cannot discard the sentiments of praise and admiration respecting some moral forms, nor the sentiments of censure and detestation concerning others. Has a man gratitude, or resentment, or pride, or shame? If he has and avows it; he must have and acknowledge a sense of something benevolent, of something unjust, of something worthy, and of something mean. Thus, so long as we find men pleased or angry, proud or ashamed; we may appeal to the reality of the moral sense. A right and a wrong, an honourable and a dishonourable is plainly conceived. About these there may be mistakes; but this destroys not the inference, that the things are, and are universally acknowledged—that they are of nature’s impression, and by no art can be obliterated.

This sense or apprehension of right and wrong appears early, and exists in different degrees. The qualities of love, gratitude, sympathy unfold themselves, in the first stages of life, and the approbation of those qualities accompanies the first dawn of reflection. Young people, who think the least about the distant influences of actions, are, more than others, moved with moral forms. Hence that strong inclination in children to hear such stories as paint the characters and fortunes of men. Hence that joy in the prosperity of the kind and faithful, and that sorrow upon the success of the treacherous and cruel, with which we often see infant minds strongly agitated.

There is a natural beauty in figures; and is there not a beauty as natural in actions? When the eye opens upon forms, and the ear to sounds; the beautiful is seen, and harmony is heard and acknowledged. When actions are viewed and affections are discerned, the inward eye distinguishes the beautiful, the amiable, the admirable, from the despicable, the odious, and the deformed. How is it possible not to own, that as these distinctions have their foundation in nature, so this power of discerning them is natural also?

The universality of an opinion or sentiment may be evinced by the structure of languages. Languages were not invented by philosophers, to countenance or support any artificial system. They were contrived by men in general, to express common sentiments and perceptions. The inference is satisfactory, that where all languages make a distinction, there must be a similar distinction in universal opinion or sentiment. For language is the picture of human thoughts; and, from this faithful picture, we may draw certain conclusions concerning the original. Now, a universal effect must have a universal cause. No universal cause can, with propriety, be assigned for this universal opinion, except that intuitive perception of things, which is distinguished by the name of common sense.

All languages speak of a beautiful and a deformed, a right and a wrong, an agreeable and disagreeable, a good and ill, in actions, affections, and characters. All languages, therefore, suppose a moral sense, by which those qualities are perceived and distinguished.

The whole circle of the arts of imitation proves the reality of the moral sense. They suppose, in human conduct, a sublimity, a beauty, a greatness, an excellence, independent of advantage or disadvantage, profit or loss. On him, whose heart is indelicate or hard; on him, who has no admiration of what is truly noble; on him, who has no sympathetick sense of what is melting and tender, the highest beauty of the mimick arts must make indeed, but a very faint and transient impression. If we were void of a relish for moral excellence, how frigid and uninteresting would the finest descriptions of life and manners appear! How indifferent are the finest strains of harmony, to him who has not a musical ear!

The force of the moral sense is diffused through every part of life. The luxury of the table derives its principal charms from some mixture of moral enjoyments, from communicating pleasures, and from sentiments honourable and just as well as elegant— “The feast of reason, and the flow of soul.”

The chief pleasures of history, and poetry, and eloquence, and musick, and sculpture, and painting are derived from the same source. Beside the pleasures they afford by imitation, they receive a stronger charm from something moral insinuated into the performances. The principal beauties of behaviour, and even of countenance, arise from the indication of affections or qualities morally estimable.

Never was there any of the human species above the condition of an idiot, to whom all actions appeared indifferent. All feel that a certain temper, certain affections, and certain actions produce a sentiment of approbation; and that a sentiment of disapprobation is produced by the contrary temper, affections, and actions. This power is capable of culture and improvement by habit, and by frequent and extensive exercise. A high sense of moral excellence is approved above all other intellectual talents. This high sense of excellence is accompanied with a strong desire after it, and a keen relish for it. This desire and this relish are approved as the most amiable affections, and the highest virtues.

This moral sense, from its very nature, is intended to regulate and control all our other powers. It governs our passions as well as our actions. Other principles may solicit and allure; but the conscience assumes authority, it must be obeyed. Of this dignity and commanding nature we are immediately conscious, as we are of the power itself. It estimates what it enjoins, not merely as superiour in degree, but as superiour likewise in kind, to what is recommended by our other perceptive powers. Without this controlling faculty, endowed as we are with such a variety of senses and interfering desires, we should appear a fabrick destitute of order: but possessed of it, all our powers may be harmonious and consistent; they may all combine in one uniform and regular direction.

In short; if we had not the faculty of perceiving certain things in conduct to be right, and others to be wrong; and of perceiving our obligation to do what is right, and not to do what is wrong; we should not be moral and accountable beings. If we be, as, I hope, I have shown we are, endowed with this faculty; there must be some things, which are immediately discerned by it to be right, and others to be wrong. There must, consequently, be in morals, as in other sciences, first principles, which derive not their evidence from any antecedent principles, but which may be said to be intuitively discerned.

Moral truths may be divided into two classes; such as are selfevident, and such as, from the selfevident ones, are deduced by reasoning. If the first be not discerned without reasoning, reasoning can never discern the last. The cases that require reasoning are few, compared with those that require none; and a man may be very honest and virtuous, who cannot reason, and who knows not what demonstration means. If the rules of virtue were left to be discovered by reasoning, even by demonstrative reasoning, unhappy would be the condition of the far greater part of men, who have not the means of cultivating the power of reasoning to any high degree. As virtue is the business of all men, the first principles of it are written on their hearts, in characters so legible, that no man can pretend ignorance of them, or of his obligation to practise them. Reason, even with experience, is too often overpowered by passion; to restrain whose impetuosity, nothing less is requisite than the vigorous and commanding principle of duty.

II. The first principles of morals, into which all moral argumentation may be resolved, are discovered in a manner more analogous to the perceptions of sense than to the conclusions of reasoning. In morality, however, as well as in other sciences, reason is usefully introduced, and performs many important services. In many instances she regulates our belief; and in many instances she regulates our conduct. She determines the proper means to any end; and she decides the preference of one end over another. She may exhibit an object to the mind, though the perception which the mind has, when once the object is exhibited, may properly belong to a sense. She may be necessary to ascertain the circumstances and determine the motives to an action; though it be the moral sense that perceives the action to be either virtuous or vicious, after its motive and its circumstances have been discovered. She discerns the tendencies of the several senses, affections, and actions, and the comparative value of objects and gratifications. She judges concerning subordinate ends; but concerning ultimate ends she is not employed. These we prosecute by some immediate determination of the mind, which, in the order of action, is prior to all reasoning; for no opinion or judgment can move to action, where there is not a previous desire of some end.—This power of comparing the several enjoyments, of which our nature is susceptible, in order to discover which are most important to our happiness, is of the highest consequence and necessity to corroborate our moral faculty, and to preserve our affections in just rank and regular order.

A magistrate knows that it is his duty to promote the good of the commonwealth, which has intrusted him with authority. But whether one particular plan or another particular plan of conduct in office, may best promote the good of the commonwealth, may, in many cases, be doubtful. His conscience or moral sense determines the end, which he ought to pursue; and he has intuitive evidence that his end is good: but the means of attaining this end must be determined by reason. To select and ascertain those means, is often a matter of very considerable difficulty. Doubts may arise; opposite interests may occur; and a preference must be given to one side from a small over-balance, and from very nice views. This is particularly the case in questions with regard to justice. If every single instance of justice, like every single instance of benevolence, were pleasing and useful to society, the case would be more simple, and would be seldom liable to great controversy. But as single instances of justice are often pernicious in their first and immediate tendency; and as the advantage to society results only from the observance of the general rule, and from the concurrence and combination of several persons in the same equitable conduct; the case here becomes more intricate and involved. The various circumstances of society, the various consequences of any practice, the various interests which may be proposed, are all, on many occasions, doubtful, and subject to much discussion and inquiry. The design of municipal law (for let us still, from every direction, open a view to our principal object) the design of municipal law is to fix all the questions which regard justice. A very accurate reason or judgment is often requisite, to give the true determination amidst intricate doubts, arising from obscure or opposite utilities. Thus, though good and ill, right and wrong are ultimately perceived by the moral sense, yet reason assists its operations, and, in many instances, strengthens and extends its influence. We may argue concerning propriety of conduct: just reasonings on the subject will establish principles for judging of what deserves praise: but, at the same time, these reasonings must always, in the last resort, appeal to the moral sense.

Farther; reason serves to illustrate, to prove, to extend, to apply what our moral sense has already suggested to us, concerning just and unjust, proper and improper, right and wrong. A father feels that paternal tenderness is refined and confirmed, by reflecting how consonant that feeling is to the relation between a parent and his child; how conducive it is to the happiness, not only of a single family, but, in its extension, to that of all mankind. We feel the beauty and excellence of virtue; but this sense is strengthened and improved by the lessons, which reason gives us concerning the foundations, the motives, the relations, the particular and the universal advantages flowing from this virtue, which, at first sight, appeared so beautiful.

Taste is a faculty, common, in some degree, to all men. But study, attention, comparison operate most powerfully towards its refinement. In the same manner, reason contributes to ascertain the exactness, and to discover and correct the mistakes, of the moral sense. A prejudice of education may be misapprehended for a determination of morality. ’Tis reason’s province to compare and discriminate.

Reason performs an excellent service to the moral sense in another respect. It considers the relations of actions, and traces them to the remotest consequences. We often see men, with the most honest hearts and most pure intentions, embarrassed and puzzled, when a case, delicate and complicated, comes before them. They feel what is right; they are unshaken in their general principles; but they are unaccustomed to pursue them through their different ramifications, to make the necessary distinctions and exceptions, or to modify them according to the circumstances of time and place. ’Tis the business of reason to discharge this duty; and it will discharge it the better in proportion to the care which has been employed in exercising and improving it.

The existence of the moral sense has been denied by some philosophers of high fame: its authority has been attacked by others: the certainty and uniformity of its decisions have been arraigned by a third class.[27] We are told, that, without education, we should have been in a state of perfect indifference as to virtue and vice; that an education, opposite to that which we have received, would have taught us to regard as virtue that which we now dislike as vice, and to despise as vice that which we now esteem as virtue. In support of these observations, it is farther said, that moral sentiment is different in different countries, in different ages, and under different forms of government and religion; in a word, that it is as much the effect of custom, fashion, and artifice, as our taste in dress, furniture, and the modes of conversation. Facts and narratives have been assembled and accumulated, to evince the great diversity and even contrariety that subsists concerning moral opinions. And it has been gravely asked, whether the wild boy, who was caught in the woods of Hanover, would feel a sentiment of disapprobation upon being told of the conduct of a parricide. An investigation of those facts and narratives cannot find a place in these lectures; though the time bestowed on it might be well employed. It may, however, be proper to observe, that it is but candid to consider human nature in her improved, and not in her most rude or depraved forms. “The good experienced man,” says Aristotle, “is the last measure of all things.”[28] To ascertain moral principles, we appeal not to the common sense of savages, but of men in their most perfect state.

Epicurus, as well as some modern advocates of the same philosophy, seem to have taken their estimates of human nature from its meanest and most degrading exhibitions; but the noblest and most respectable philosophers of antiquity have chosen, for a much wiser and better purpose, to view it on the brightest and most advantageous side. “It is impossible,” says the incomparable Addison,[29] “to read a passage in Plato or Tully, and a thousand other ancient moralists, without being a greater and a better man for it. On the contrary, I could never read some modish modern authors, without being, for some time, out of humour with myself, and at every thing about me. Their business is to depreciate human nature, and consider it under its worst appearances. They give mean interpretation and base motives to the worthiest actions—in short, they endeavour to make no distinction between man and man, or between the species of men and that of brutes.” True it is, that some men and some nations are savage and brutish; but is that a reason why their manners and their practices should be generally and reproachfully charged to the account of human nature? It may, perhaps, be somewhat to our purpose to observe, that in many of these representations, the picture, if compared with the original, will be found to be overcharged. For, in truth, between mankind, considered even in their rudest state, and the mutum et turpe pecus (dumb and base herd), a very wide difference will be easily discovered. In the most uninformed savages, we find the communes notitiae, the common notions and practical principles of virtue, though the application of them is often extremely unnatural and absurd. These same savages have in them the seeds of the logician, the man of taste, the orator, the statesman, the man of virtue, and the saint. These seeds are planted in their minds by nature, though, for want of culture and exercise, they lie unnoticed, and are hardly perceived by themselves or by others. Besides, some nations that have been supposed stupid and barbarous by nature, have, upon fuller acquaintance with their history, been found to have been rendered barbarous and depraved by institution. When, by the power of some leading members, erroneous laws are once established, and it has become the interest of subordinate tyrants to support a corrupt system; errour and iniquity become sacred. Under such a system, the multitude are fettered by the prejudices of education, and awed by the dread of power, from the free exercise of their reason. These principles will account for the many absurd and execrable tenets and practices with regard to government, morals, and religion, which have been invented and established in opposition to the unbiassed sentiments, and in derogation of the natural rights of mankind. But, after making all the exceptions and abatements, of which these facts and narratives, if admitted in their fullest extent, would justify the claim, still it cannot be denied, but is even acknowledged, that some sorts of actions command and receive the esteem of mankind more than others; and that the approbation of them is general, though not universal. It will certainly be sufficient for our purpose to observe, that the dictates of reason are neither more general, nor more uniform, nor more certain, nor more commanding, than the dictates of the moral sense. Nay, farther; perhaps, upon inquiry, we shall find, that those obliquities, extravagancies, and inconsistencies of conduct, that are produced as proofs of the nonexistence or inutility of the moral sense, are, in fact, chargeable to that faculty, which is meant to be substituted in its place. We shall find that men always approve upon an opinion—true or false, but still an opinion—that the actions approved have the qualities and tendencies, which are the proper objects of approbation. They suppose that such actions will promote their own interest; or will be conducive to the publick good; or are required by the Deity; when, in truth, they have all the contrary properties—may be forbidden by the Deity, and may be detrimental both to publick and to private good. But when all this happens, to what cause is it to be traced? Does it prove the nonexistence of a moral sense, or does it prove, in such instances, the weakness or perversion of reason? The just solution is, that, in such instances, it is our reason, which presents false appearances to our moral sense.

It is with much reluctance, that the power of our instinctive or intuitive faculties is acknowledged by some philosophers. That the brutes are governed by instinct, but that man is governed by reason, is their favourite position. But fortunately for man, this position is not founded on truth. Our instincts, as well as our rational powers, are far superiour, both in number and in dignity, to those, which the brutes enjoy; and it were well for us, on many occasions, if we laid our reasoning systems aside, and were more attentive in observing the genuine impulses of nature. In this enlarged and elevated meaning, the sentiment of Pope receives a double portion of force and sublimity.

      “And reason raise o’er instinct as you can,
     In this, ’tis God directs, in that, ’tis man.”[30]

This sentiment is not dictated merely in the fervid glow of enraptured poetry; it is affirmed by the deliberate judgment of calm, sedate philosophy. Our instincts are no other than the oracles of eternal wisdom; our conscience, in particular, is the voice of God within us: it teaches, it commands, it punishes, it rewards. The testimony of a good conscience is the purest and the noblest of human enjoyments.

It will be proper to examine a little more minutely the opinions of those, who allege reason to be the sole directress of human conduct. Reason may, indeed, instruct us in the pernicious or useful tendency of qualities and actions: but reason alone is not sufficient to produce any moral approbation or blame. Utility is only a tendency to a certain end; and if the end be totally indifferent to us, we shall feel the same indifference towards the means. It is requisite that sentiment should intervene, in order to give a preference to the useful above the pernicious tendencies.

Reason judges either of relations or of matters of fact. Let us consider some particular virtue or vice under both views. Let us take the instance of ingratitude. This has place, when good will is expressed and good offices are performed on one side, and ill will or indifference is shown on the other. The first question is—what is that matter of fact, which is here called a vice? Indifference or ill will. But ill will is not always, nor in all circumstances a crime: and indifference may, on some occasions, be the result of the most philosophick fortitude. The vice of ingratitude, then, consists not in matter of fact.

Let us next inquire into the relations, which reason can discover, among the materials, of which ingratitude is composed. She discovers good will and good offices on one side, and ill will or indifference on the other. This is the relation of contrariety. Does ingratitude consist in this? To which side of the contrary relation is it to be placed? For this relation of contrariety is formed as much by good will and good offices, as by ill will or indifference. And yet the former deserves praise as much as the latter deserves blame.

If it shall be said, that the morality of an action does not consist in the relation of its different parts to one another, but in the relation of the whole actions to the rule; and that actions are denominated good or ill, as they agree or disagree with that rule; another question occurs—What is this rule of right? by what is it discovered or determined? By reason, it is said. How does reason discover or determine this rule? It must be by examining facts or the relations of things. But by the analysis which has been given of the particular instance under our consideration, it has appeared that the vice of ingratitude consists neither in the matter of fact, nor in the relation of the parts, of which the fact is composed. Objects in the animal world, nay inanimate objects, may have to each other all the same relations, which we observe in moral agents; but such objects are never supposed to be susceptible of merit or demerit, of virtue or vice.

The ultimate ends of human actions, can never, in any case, be accounted for by reason. They recommend themselves entirely to the sentiments and affections of men, without dependence on the intellectual faculties. Why do you take exercise? Because you desire health. Why do you desire health? Because sickness is painful. Why do you hate pain? No answer is heard. Can one be given? No. This is an ultimate end, and is not referred to any farther object.

To the second question, you may, perhaps, answer, that you desire health, because it is necessary for your improvement in your profession. Why are you anxious to make this improvement? You may, perhaps, answer again, because you wish to get money by it. Why do you wish to get money? Because, among other reasons, it is the instrument of pleasure. But why do you love pleasure? Can a reason be given for loving pleasure, any more than for hating pain? They are both ultimate objects. ’Tis impossible there can be a progress in infinitum; and that one thing can always be a reason, why another is hated or desired. Something must be hateful or desirable on its own account, and because of its immediate agreement or disagreement with human sentiment and affection. Virtue and vice are ends; and are hateful or desirable on their own account. It is requisite, therefore, that, there should be some sentiment, which they touch—some internal taste or sense, which distinguishes moral good and evil, and which embraces one, and rejects the other. Thus are the offices of reason and of the moral sense at last ascertained. The former conveys the knowledge of truth and falsehood: the latter, the sentiment of beauty and deformity, of vice and virtue. The standard of one, founded on the nature of things, is eternal and inflexible. The standard of the other is ultimately derived from that supreme will, which bestowed on us our peculiar nature, and arranged the several classes and orders of existence. In this manner, we return to the great principle, from which we set out. It is necessary that reason should be fortified by the moral sense: without the moral sense, a man may be prudent, but he cannot be virtuous.

Philosophers have degraded our senses below their real importance. They represent them as powers, by which we have sensations and ideas only. But this is not the whole of their office; they judge as well as inform. Not confined to the mere office of conveying impressions, they are exalted to the function of judging of the nature and evidence of the impressions they convey. If this be admitted, our moral faculty may, without impropriety, be called the moral sense. Its testimony, like that of the external senses, is the immediate testimony of nature, and on it we have the same reason to rely. In its dignity, it is, without doubt, far superiour to every other power of the mind.

The moral sense, like all our other powers, comes to maturity by insensible degrees. It is peculiar to human nature. It is both intellectual and active. It is evidently intended, by nature, to be the immediate guide and director of our conduct, after we arrive at the years of understanding.

III. Reason and conscience can do much; but still they stand in need of support and assistance. They are useful and excellent monitors; but, at some times, their admonitions are not sufficiently clear; at other times, they are not sufficiently powerful; at all times, their influence is not sufficiently extensive. Great and sublime truths, indeed, would appear to a few; but the world, at large, would be dark and ignorant. The mass of mankind would resemble a chaos, in which a few sparks, that would diffuse a glimmering light, would serve only to show, in a more striking manner, the thick darkness with which they are surrounded. Their weakness is strengthened, their darkness is illuminated, their influence is enlarged by that heaven-descended science, which has brought life and immortality to light. In compassion to the imperfection of our internal powers, our all-gracious Creator, Preserver, and Ruler has been pleased to discover and enforce his laws, by a revelation given to us immediately and directly from himself. This revelation is contained in the holy scriptures. The moral precepts delivered in the sacred oracles form a part of the law of nature, are of the same origin, and of the same obligation, operating universally and perpetually.

On some important subjects, those in particular, which relate to the Deity, to Providence, and to a future state, our natural knowledge is greatly improved, refined, and exalted by that which is revealed. On these subjects, one who has had the advantage of a common education in a christian country, knows more, and with more certainty, than was known by the wisest of the ancient philosophers.

One superiour advantage the precepts delivered in the sacred oracles clearly possess. They are, of all, the most explicit and the most certain. A publick minister, judging from what he knows of the interests, views, and designs of the state, which he represents, may take his resolutions and measures, in many cases, with confidence and safety; and may presume, with great probability, how the state itself would act. But if, besides this general knowledge, and these presumptions highly probable, he was furnished also with particular instructions for the regulation of his conduct; would he not naturally observe and govern himself by both rules? In cases, where his instructions are clear and positive, there would be an end of all farther deliberation. In other cases, where his instructions are silent, he would supply them by his general knowledge, and by the information, which he could collect from other quarters, concerning the counsels and systems of the commonwealth. Thus it is with regard to reason, conscience, and the holy scriptures. Where the latter give instructions, those instructions are supereminently authentick. But whoever expects to find, in them, particular directions for every moral doubt which arises, expects more than he will find. They generally presuppose a knowledge of the principles of morality; and are employed not so much in teaching new rules on this subject, as in enforcing the practice of those already known, by a greater certainty, and by new sanctions. They present the warmest recommendations and the strongest inducements in favour of virtue: they exhibit the most powerful dissuasives from vice. But the origin, the nature, and the extent of the several rights and duties they do not explain; nor do they specify in what instances one right or duty is entitled to preference over another. They are addressed to rational and moral agents, capable of previously knowing the rights of men, and the tendencies of actions; of approving what is good, and of disapproving what is evil.

These considerations show, that the scriptures support, confirm, and corroborate, but do not supercede the operations of reason and the moral sense. The information with regard to our duties and obligations, drawn from these different sources, ought not to run in unconnected and diminished channels: it should flow in one united stream, which, by its combined force and just direction, will impel us uniformly and effectually towards our greatest good.

We have traced, with some minuteness, the efficient principle of obligation, and the several means, by which our duty may be known. It will be proper to turn our attention back to the opinions that have been held, in philosophy and jurisprudence, concerning this subject. On a review of them, we shall now find that, in general, they are defective rather than erroneous; that they have fallen short of the mark, rather than deviated from the proper course.

The fitness of things denotes their fitness to produce our happiness: their nature means that actual constitution of the world, by which some things produce happiness, and others misery. Reason is one of the means, by which we discern between those things, which produce the former, and those things, which produce the latter. The moral sense feels and operates to promote the same essential discriminations. Whatever promotes the greatest happiness of the whole, is congenial to the principles of utility and sociability: and whatever unites in it all the foregoing properties, must be agreeable to the will of God: for, as has been said once, and as ought to be said again, his will is graciously comprised in this one paternal precept—Let man pursue his happiness and perfection.

The law of nature is immutable; not by the effect of an arbitrary disposition, but because it has its foundation in the nature, constitution, and mutual relations of men and things. While these continue to be the same, it must continue to be the same also. This immutability of nature’s laws has nothing in it repugnant to the supreme power of an all-perfect Being. Since he himself is the author of our constitution; he cannot but command or forbid such things as are necessarily agreeable or disagreeable to this very constitution. He is under the glorious necessity of not contradicting himself. This necessity, far from limiting or diminishing his perfections, adds to their external character, and points out their excellency.

The law of nature is universal. For it is true, not only that all men are equally subject to the command of their Maker; but it is true also, that the law of nature, having its foundation in the constitution and state of man, has an essential fitness for all mankind, and binds them without distinction.

This law, or right reason, as Cicero calls it, is thus beautifully described by that eloquent philosopher. “It is, indeed,” says he, “a true law, conformable to nature, diffused among all men, unchangeable, eternal. By its commands, it calls men to their duty: by its prohibitions, it deters them from vice. To diminish, to alter, much more to abolish this law, is a vain attempt. Neither by the senate, nor by the people, can its powerful obligation be dissolved. It requires no interpreter or commentator. It is not one law at Rome, another at Athens; one law now, another hereafter: it is the same eternal and immutable law, given at all times and to all nations: for God, who is its author and promulgator, is always the sole master and sovereign of mankind.”[31]

“Man never is,” says the poet, in a seeming tone of complaint, “but always to be blest.” The sentiment would certainly be more consolatory, and, I think, it would be likewise more just, if we were to say—man ever is; for always to be blest. That we should have more and better things before us, than all that we have yet acquired or enjoyed, is unquestionably a most desirable state. The reflection on this circumstance, far from diminishing our sense or the importance of our present attainments and advantages, produces the contrary effects. The present is gilded by the prospect of the future.

When Alexander had conquered a world, and had nothing left to conquer; what did he do? He sat down and wept. A well directed ambition that has conquered worlds, is exempted from the fate of that of Alexander the Great: it still sees before it more and better worlds as the objects of conquest.

It is the glorious destiny of man to be always progressive. Forgetting those things that are behind, it is his duty, and it is his happiness, to press on towards those that are before. In the order of Providence, as has been observed on another occasion, the progress of societies towards perfection resembles that of an individual. This progress has hitherto been but slow: by many unpropitious events, it has often been interrupted: but may we not indulge the pleasing expectation, that, in future, it will be accelerated; and will meet with fewer and less considerable interruptions.

Many circumstances seem—at least to a mind anxious to see it, and apt to believe what it is anxious to see—many circumstances seem to indicate the opening of such a glorious prospect. The principles and the practice of liberty are gaining ground, in more than one section of the world. Where liberty prevails, the arts and sciences lift up their heads and flourish. Where the arts and sciences flourish, political and moral improvements will likewise be made. All will receive from each, and each will receive from all, mutual support and assistance: mutually supported and assisted, all may be carried to a degree of perfection hitherto unknown; perhaps, hitherto not believed. “Men,” says the sagacious Hooker, “if we view them in their spring, are, at the first, without understanding or knowledge at all. Nevertheless, from this utter vacuity, they grow by degrees, till they become at length to be even as the angels themselves are. That which agreeth to the one now, the other shall attain to in the end: they are not so far disjoined and severed, but that they come at length to meet.”[32]

Our progress in virtue should certainly bear a just proportion to our progress in knowledge. Morals are undoubtedly capable of being carried to a much higher degree of excellence than the sciences, excellent as they are. Hence we may infer, that the law of nature, though immutable in its principles, will be progressive in its operations and effects. Indeed, the same immutable principles will direct this progression. In every period of his existence, the law, which the divine wisdom has approved for man, will not only be fitted, to the cotemporary degree, but will be calculated to produce, in future, a still higher degree of perfection.

A delineation of the laws of nature, has been often attempted. Books, under the appellations of institutes and systems of that law, have been often published. From what has been said concerning it, the most finished performances executed by human hands cannot be perfect. But most of them have been rude and imperfect to a very unnecessary, some, to a shameful degree.

A more perfect work than has yet appeared upon this great subject, would be a most valuable present to mankind. Even the most general outlines of it cannot, at least in these lectures, be expected from me.

CHAPTER IV

Of the Law of Nations

The law of nature, when applied to states or political societies, receives a new name, that of the law of nations. This law, important in all states, is of peculiar importance in free ones. The States of America are certainly entitled to this dignified appellation. A weighty part of the publick business is transacted by the citizens at large. They appoint the legislature, and, either mediately or immediately, the executive servants of the publick. As the conduct of a state, both with regard to itself and others, must greatly depend upon the character, the talents, and the principles of those, to whom the direction of that conduct is intrusted; it is highly necessary that those who are to protect the rights, and to perform the duties of the commonwealth, should be men of proper principles, talents, and characters: if so, it is highly necessary that those who appoint them should be able, in some degree at least, to distinguish and select those men, whose principles, talents, and characters are proper. In order to do this, it is greatly useful that they have, at least, some just and general knowledge of those rights that are to be protected, and of those duties that are to be performed. Without this, they will be unable to form a rational conjecture, concerning the future conduct of those whom they are to elect. Nay, what is more; without some such general and just knowledge, they will be unable to form a rational judgment, concerning the past and present conduct of those whom they have already elected; and, consequently, will be unable to form a rational determination whether, at the next election, they should reappoint them, or substitute others in their place. As the practice of the law of nations, therefore, must, in a free government, depend very considerably on the acts of the citizens, it is of high import that, among those citizens, its knowledge be generally diffused.

But, if the knowledge of the law of nations is greatly useful to those who appoint, it must surely be highly necessary to those who are appointed, the publick servants and stewards of the commonwealth. Can its interests be properly managed, can its character be properly supported, can its happiness be properly consulted, by those who know not what it owes to others, what it owes to itself, what it has a right to claim from others, and what it has a right to provide for itself? In a free commonwealth, the path to publick service and to publick honour is open to all. Should not all, therefore, sedulously endeavour to become masters of such qualifications, as will enable them to tread this path with credit to themselves, and with advantage to their country?

In the United States, a system of republicks, the law of nations acquires an importance still more peculiar and distinguished. In the United States, the law of nations, operates upon peculiar relations, and upon those relations with peculiar energy. Well am I justified, on every account, in announcing the dignity and greatness of the subject, upon which I am now to enter.

On all occasions, let us beware of being misled by names. Though the law, which I am now to consider, receives a new appellation; it retains, unimpaired, its qualities and its power. The law of nations, as well as the law of nature, is of obligation indispensable: the law of nations, as well as the law of nature, is of origin divine. The opinions of many concerning the law of nations have been very vague and unsatisfactory; and if such have been the opinions, we have little reason to be surprised, that the conduct of nations has too often been diametrically opposite to the law, by which it ought to have been regulated. In the judgment of some writers, it would seem, for instance, that neither the state which commences an unjust war, nor the chief who conducts it, derogates from the general sanctity of their respective characters. An ardent love of their country they seem to have thought a passion too heroick, to be restrained within the narrow limits of systematick morality; and those have been too often considered as the greatest patriots, who have contributed most to gratify the publick passion for conquest and power. States, as well as monarchs, have too frequently been blinded by ambition. Of this there is scarcely a page in ancient or in modern history, relating to national contentions, but will furnish the most glaring proofs. The melancholy truth is, that the law of nations, though founded on the most solid principles of natural obligation, has been but imperfectly viewed in theory, and has been too much disregarded in practice.

The profound and penetrating Bacon was not inattentive to the imperfect state, in which he found the science of the law of nations. As, in another science, that enlightened philosophical guide pointed to the discoveries of a Newton; so in this, in all probability, he laid a foundation for the researches of a Grotius. For we have reason to believe, as we are told by Barbeyrac,[33] that it was the study of the works of Lord Bacon, that first inspired Grotius with the design of writing a system concerning the law of nations. In this science Grotius did much; for he was well qualified to do much. Extensive knowledge, prodigious reading, indefatigable application to study, all these were certainly his. Yet with all these, he was far from being as successful in law, as Sir Isaac Newton was in philosophy. He was unfortunate in not setting out on right and solid principles. His celebrated book of the Rights of War and Peace is indeed useful; but it ought not to be read without a due degree of caution: nor ought all his doctrines to be received, without the necessary grains of allowance. At this we ought not to wonder, when we consider the extent, the variety, and the importance of his subject, and that, before his time, it was little known, and much neglected. His opinion concerning the source and the obligation of the law of nations is very defective. He separates that law from the law of nature, and assigns to it a different origin. “When many men,” says he,“at different times and places, unanimously affirm the same thing for truth; this should be ascribed to a general cause. In the subjects treated of by us, this cause can be no other than either a just inference drawn from the principles of nature, or a universal consent. The first discovers to us the law of nature, the second the law of nations.”[34] The law of nations, we see, he traces from the principle of universal consent. The consequence of this is, that the law of nations would be obligatory only upon those by whom the consent was given, and only by reason of that consent. The farther consequence would be, that the law of nations would lose a part, and the greatest part, of its obligatory force, and would also be restrained as to the sphere of its operations. That it would lose the greatest part of its obligatory force, sufficiently appears from what we have said at large concerning the origin and obligation of natural law, evincing it to be the will of God. That it would be restrained as to the sphere of its operations, appears from what Grotius himself says, when he explains his meaning in another place. He qualifies the universality of his expression by adding these words, “at least the most civilized nations;” and he afterwards says that this addition is made “with reason.”[35] On the least civilized nations, therefore, the law of nations would not, according to his account of it, be obligatory.

I admit that there are laws of nations—perhaps it is to be wished that they were designated by an appropriate name; for names, after all, will have their influence on operations—I freely admit that there are laws of nations, which are founded altogether upon consent. National treaties are laws of nations, obligatory solely by consent. The customs of nations become laws solely by consent. Both kinds are certainly voluntary. But the municipal laws of a state are not more different from the law of nature, than those voluntary laws of nations are, in their source and power, different from the law of nations, properly so called. Indeed, those voluntary laws of nations are as much under the control of the law of nations, properly so called, as municipal laws are under the control of the law of nature. The law of nations, properly so called, is the law of nature applied to states and sovereigns. The law of nations, properly so called, is the law of states and sovereigns, obligatory upon them in the same manner, and for the same reasons, as the law of nature is obligatory upon individuals. Universal, indispensable, and unchangeable is the obligation of both.

But it will naturally be asked, if the law of nations bears, as from this account it bears, the same relation to states, which the law of nature bears to individuals; if the law of nature and the law of nations are accompanied with the same obligatory power, and are derived from the same common source; why should the law of nations have a distinct name? Why should it be considered as a separate science? Some have thought that the difference was only in name; and if only in name, there could surely be no solid reason for establishing even that difference. Of those, who thought so, Puffendorff was one. “Many,” says he, “assert the law of nature and of nations to be the very same thing, differing no otherwise than in external denomination. Thus Mr. Hobbes divides natural law, into the natural law of men, and the natural law of states, commonly called the law of nations. He observes, that the precepts of both are the same; but that as states, when once instituted, assume the personal properties of men, what we call the law of nature, when we speak of particular men, we denominate the law of nations, when we apply it to whole states, nations, or people. This opinion,” continues Puffendorff, “we, for our part, readily subscribe to; nor do we conceive, that there is any other voluntary or positive law of nations, properly vested with a true and legal force, and obliging as the ordinance of a superiour power.”[36] By the way, we may here observe, that, with regard to the law of nations, Grotius and Puffendorff seem to have run into contrary extremes. The former was of opinion, that the whole law of nations took its origin and authority from consent. The latter was of opinion, that every part of the law of nations was the same with the law of nature, that no part of it could receive its obligatory force from consent; because, according to his favourite notion of law, no such thing could exist without the intervention of a superiour power. The truth seems to lie between the two great philosophers. The law of nations, properly so called, or, as it may be termed, the natural law of nations, is a part, and an important part, of the law of nature. The voluntary law of nations falls under the class of laws that are positive. If a particular name had been appropriated to this last species of law, it is probable that much confusion and ambiguity, on this subject, would have been avoided; and the distinction between the different parts of that law, comprehended, at present, under the name of the law of nations, would have been as clearly marked, as uniformly preserved, and as familiarly taken, as the well known and well founded distinction between natural and municipal law. But to return.

As Puffendorff thought that the law of nature and the law of nations were precisely the same, he has not, in his book on these subjects, treated of the law of nations separately; but has every where joined it with the law of nature, properly so called. His example has been followed by the greatest part of succeeding writers. But the imitation of it has produced a confusion of two objects, which ought to have been viewed and studied distinctly and apart. Though the law of nations, properly so called, be a part of the law of nature; though it spring from the same source; and though it is attended with the same obligatory power; yet it must be remembered that its application is made to very different objects. The law of nature is applied to individuals: the law of nations is applied to states. The important difference between the objects, will occasion a proportioned difference in the application of the law.[37] This difference in the application renders it fit that the law of nature, when applied to states, should receive an appropriate name, and should be taught and studied as a separate science.

Though states or nations are considered as moral persons; yet the nature and essence of these moral persons differ necessarily, in many respects, from the nature and essence of the individuals, of whom they are composed. The application of a law must be made in a manner suitable to its object. The application, therefore, of the law of nature to nations must be made in a manner suitable to nations: its application to individuals must be made in a manner suitable to individuals. But as nations differ from individuals; the application of the law suitable to the former, must be different from its application suitable to the latter. To nations this different application cannot be made with accuracy, with justness, and with perspicuity, without the aid of new and discriminating rules. These rules will evince, that, on the principles themselves of the law of nature, that law, when applied to nations, will prescribe decisions different from those which it would prescribe, when applied to individuals. To investigate those rules; to deduce, from the same great and leading principles, applications differing in proportion to the difference of the persons to which they are applied, is the object of the law of nations, considered as a science distinct and separate from that of the law of nature.

Having given you this general idea and description of the law of nations; need I expatiate on its dignity and importance? The law of nations is the law of sovereigns. In free states, such as ours, the sovereign or supreme power resides in the people. In free states, therefore, such as ours, the law of nations is the law of the people. Let us again beware of being misled by an ambiguity, sometimes, such is the structure of language, unavoidable. When I say that, in free states, the law of nations is the law of the people; I mean not that it is a law made by the people, or by virtue of their delegated authority; as, in free states, all municipal laws are. But when I say that, in free states, the law of nations is the law of the people; I mean that, as the law of nature, in other words, as the will of nature’s God, it is indispensably binding upon the people, in whom the sovereign power resides; and who are, consequently, under the most sacred obligations to exercise that power, or to delegate it to such as will exercise it, in a manner agreeable to those rules and maxims, which the law of nature prescribes to every state, for the happiness of each, and for the happiness of all. How vast—how important—how interesting are these truths! They announce to a free people how exalted their rights; but, at the same time, they announce to a free people how solemn their duties are. If a practical knowledge and a just sense of these rights and these duties were diffused among the citizens, and properly impressed upon their hearts and minds; how great, how beneficial, how lasting would be their fruits! But, unfortunately, as there have been and there are, in arbitrary governments, flatterers of princes; so there have been and there are, in free governments, flatterers of the people. One distinction, indeed, is to be taken between them. The latter herd of flatterers persuade the people to make an improper use of the power, which of right they have: the former herd persuade princes to make an improper use of power, which of right they have not. In other respects, both herds are equally pernicious. Both flatter to promote their private interests: both betray the interests of those whom they flatter.

It is of the highest, and, in free states, it is of the most general importance, that the sacred obligation of the law of nations should be accurately known and deeply felt. Of all subjects, it is agreeable and useful to form just and adequate conceptions; but of those especially, which have an influence on the practice and morality of states. For it is a serious truth, however much it has been unattended to in practice, that the laws of morality are equally strict with regard to societies, as to the individuals of whom the societies are composed. It must be owing either to ignorance, or to a very unjustifiable disregard to this great truth, that some transactions of publick bodies have often escaped censure, nay, sometimes have received applause, though those transactions have been such, as none of the individuals composing those bodies would have dared to introduce into the management of his private affairs; because the person introducing them would have been branded with the most reproachful of names and characters. It has been long admitted, by those who have been the best judges of private life and manners, that integrity and sound policy go hand in hand. It is high time that this maxim should find an establishment in the councils of states, and in the cabinets of princes. Its establishment there would diffuse far and wide the most salutary and benign effects.

Opinions concerning the extent of the law of nations have not been less defective and inadequate, than those concerning its origin and obligatory force. Some seem to have thought, that this law respects and regulates the conduct of nations only in their intercourse with each other. A very important branch of this law—that containing the duties which a nation owes itself—seems to have escaped their attention. “The general principle,” says Burlamaqui, “of the law of nations, is nothing more than the general law of sociability, which obliges nations to the same duties as are prescribed to individuals. Thus the law of natural equality, which prohibits injury and commands the reparation of damage done; the law of beneficence, and of fidelity to our engagements, are laws respecting nations, and imposing, both on the people and on their respective sovereigns, the same duties as are prescribed to individuals.”[38] Several other writers concerning the law of nations appear to have formed the same imperfect conceptions with regard to its extent. Let us recur to what the law of nature dictates to an individual. Are there not duties which he owes to himself? Is he not obliged to consult and promote his preservation, his freedom, his reputation, his improvement, his perfection, his happiness? Now that we have seen the law of nature as it respects the duties of individuals, let us see the law of nations as it respects the duties of states, to themselves: for we must recollect that the law of nations is only the law of nature judiciously applied to the conduct of states. From the duties of states, as well as of individuals, to themselves; a number of corresponding rights will be found to arise.

A state ought to attend to the preservation of its own existence. In what does the existence of a state consist? It consists in the association of the individuals, of which it is composed. In what consists the preservation of this existence? It consists in the duration of that association. When this association is dissolved, the state ceases to exist; though all the members, of whom it was composed, may still remain. It is the duty of a state, therefore, to preserve this association undissolved and unimpaired. But in this, as in many other instances, a difference between the nature of states and the nature of individuals will occasion, for the reasons already mentioned, a proportioned difference in the application of the law of nature. Nations, as well as men, are taught by the law of nature, gracious in its precepts, to consider their happiness as the great end of their existence. But without existence there can be no happiness: the means, therefore, must be secured, in order to secure the end. But yet, between the duty of self-preservation required from a state, and the duty of self-preservation required from a man, there is a most material difference; and this difference is founded on the law of nature itself. A nation has a right to assign to its existence a voluntary termination: a man has not. What can be the reasons of this difference? Several may be given. By the voluntary act of the individuals forming the nation, the nation was called into existence: they who bind, can also untie: by the voluntary act, therefore, of the individuals forming the nation, the nation may be reduced to its original nothing. But it was not by his own voluntary act that the man made his appearance upon the theatre of life; he cannot, therefore, plead the right of the nation, by his own voluntary act to make his exit. He did not make; therefore, he has no right to destroy himself. He alone, whose gift this state of existence is, has the right to say when and how it shall receive its termination.

Again; though nations are considered as moral persons, and, in that character, as entitled, in many respects, to claim the rights, and as obliged, in many respects, to perform the duties of natural persons; yet we must always remember that of natural persons those moral persons are composed; that for the sake of natural persons those moral persons were formed; and that while we suppose those moral persons to live, and think, and act, we know that they are natural persons alone, who really exist or feel, who really deliberate, resolve, and execute. Now none of these observations resulting from the nature and essence of the nation, can be applied, with any degree of propriety, to the nature and essence of the man: and, therefore, the inferences drawn from these observations, with regard to the case of the nation, are wholly inapplicable to the case of the man.

One of these inferences is, that as it was for the happiness of the members that the moral existence of the nation was produced; so the happiness of the members may require this moral existence to be annihilated. Can this inference be applied to the man?

Further; there may be a moral certainty, that, of the voluntary dissolution of the nation, the necessary consequence will be an increase of happiness. Can such a consequence be predicted, with moral certainty, concerning the voluntary death of the man?

This instance shows, in a striking manner, how, on some occasions, the law of nature, when applied to a nation, may dictate or authorize a measure of conduct very different from that, which it would authorize and dictate with regard to a man. As it is, in general, the duty of a state to preserve itself; so it is, in general, its duty to preserve its members. This is a duty which it owes to them, and to itself. It owes it to them, because their advantage was the final cause of their joining in the association, and engaging to support it; and they ought not to be deprived of this advantage, while they fulfil the conditions, on which it was stipulated. This duty the nation owes to itself, because the loss of its members is a proportionable loss of its strength; and the loss of its strength is proportionably injurious both to its security, and to its preservation. The result of these principles is, that the body of a nation should not abandon a country, a city, or even an individual, who has not forfeited his rights in the society.

The right and duty of a state to preserve its members are subject to the same limitations and conditions, as its right and duty to preserve itself. As, for some reasons, the society may be dissolved; so, for others, it may be dismembered. A part may be separated from the other parts; and that part may either become a new state, or may associate with another state already formed. An illustration of this doctrine may be drawn from a recent instance, which has happened in the commonwealth of Virginia. The district of Kentucky has, by an amicable agreement, been disjoined from the rest of the commonwealth, and has been formed into a separate state. It is a pleasure, perhaps I may add it is a laudable pride, to be able to furnish, to the world, the first examples of carrying into practice the most sublime parts of the most sublime theories of government and law.

When a nation has a right, and is under an obligation to preserve itself and its members; it has, by a necessary consequence, a right to do every thing, which, without injuring others, it can do, in order to accomplish and secure those objects. The law of nature prescribes not impossibilities: it imposes not an obligation, without giving a right to the necessary means of fulfilling it. The same principles, which evince the right of a nation to do every thing, which it lawfully may, for the preservation of itself and of its members, evince its right, also, to avoid and prevent, as much as it lawfully may, every thing which would load it with injuries, or threaten it with danger.

It is the right, and generally it is the duty, of a state, to form a constitution, to institute civil government, and to establish laws. If the constitution formed, or the government instituted, or the laws established shall, on experience, be found weak, or inconvenient, or pernicious; it is the right, and it is the duty of the state to strengthen, or alter, or abolish them. These subjects will be fully treated in another place.

A nation ought to know itself. It ought to form a just estimate of its own situation, both with regard to itself and to its neighbours. It ought to learn the excellencies, and the blemishes likewise of its own constitution. It ought to review the instances in which it has already attained, and it ought to ascertain those in which it falls short of, a practicable degree of perfection. It ought to find out what improvements are peculiarly necessary to be promoted, and what faults it is peculiarly necessary to avoid. Without a discriminating sagacity of this kind, the principle of imitation, intended for the wisest purposes in states as well as in individuals, would be always an uncertain, sometimes a dangerous guide. A measure extremely salutary to one state, might be extremely injurious to another. What, in one situation, would be productive of peace and happiness, might, in another, be the unfortunate cause of infelicity and war. Above all things, the genius and manners of the people ought to be carefully consulted. The government ought to be administered agreeably to this genius and these manners; but how can this be done, if this genius and these manners are unknown? This duty of self-knowledge is of vast extent and of vast importance, in nations as well as in men.

To love and to deserve honest fame, is another duty of a people, as well as of an individual. The reputation of a state is not only a pleasant, it is also a valuable possession. It attracts the esteem, it represses the unfriendly inclinations of its neighbours. This reputation is acquired by virtue, and by the conduct which virtue inspires. It is founded on the publick transactions of the state, and on the private behaviour of its members.

A state should avoid ostentation, but it should support its dignity. This should never be suffered to be degraded among other nations. In transactions between states, an attention to this object is of much greater importance than is generally imagined. Even the marks and titles of respect, to which a nation, and those who represent a nation, are entitled, ought not to be considered as trivial: they should be claimed with firmness: they should be given with alacrity. The dignity, the equality, the mutual independence, and the frequent intercourse of nations render such a tenour of conduct altogether indispensable.

It is the duty of a nation to intrust the management of its affairs only to its wisest and best citizens. The immense importance of this duty is easily seen; but it is not sufficiently regarded. The meanest menial of a family will not be received without examination and cautious inquiry. The most important servants of the publick will be voted in without consideration and without care. In electioneering, as it is called, we frequently find warm recommendations and active intrigues in favour of candidates for the highest offices, to whom the recommenders and intriguers would not, if put to the test, intrust the management of the smallest part of their own private interest. An election ground, the great theatre of original sovereignty, on which nothing but inviolable integrity and independent virtue should be exhibited, is often and lamentably transformed into a scene of the vilest and lowest debauchery and deception. An election maneuvre, an election story, are names appropriated to a conduct, which, in other and inferiour transactions, would be branded, and justly branded, with the most opprobrious appellations. Even those, who may be safely trusted every where else, will play false at elections. The remarks, which I have made concerning general elections, may be too often made, with equal truth, concerning other appointments to offices. But these things ought not to be. When the obligation and the importance of the great national duty required at elections—a duty prescribed by him who made us free—a duty prescribed that we may continue free—when all this shall be sufficiently diffused, and known, and felt; these things will not be. The people will then elect conscientiously; and will require conscientious conduct from those whom they elect.

A nation ought to encourage true patriotism in its members. The first step towards this encouragement is to distinguish between its real and its pretended friends. The discrimination, it is true, is often difficult, sometimes impracticable: but it is equally true, that it may frequently be made. Let the same care be employed, let the same pains be taken, to ascertain the marks of deceit and the marks of sincerity in publick life, and in intriguing for publick office, which are usually taken and employed in private life, and in solicitations for acts of private friendship. The care and pains will sometimes, indeed, be fruitless; but they will sometimes, too, be successful; at all times, they will be faithful witnesses, that those, who have employed them, have discharged their duty.

If a nation establish itself, or extend its establishment in a country already inhabited by others; it ought to observe strict justice, in both instances, with the former inhabitants. This is a part of the law of nations, that very nearly concerns the United States. It ought, therefore, to be well understood. The whole earth is allotted for the nourishment of its inhabitants; but it is not sufficient for this purpose, unless they aid it by labour and culture. The cultivation of the earth, therefore, is a duty incumbent on man by the order of nature. Those nations that live by hunting, and have more land than is necessary even for the purposes of hunting, should transfer it to those who will make a more advantageous use of it: those who will make this use of it ought to pay, for they can afford to pay, a reasonable equivalent. Even when the lands are no more than sufficient for the purposes of hunting, it is the duty of the new inhabitants, if advanced in society, to teach, and it is the duty of the original inhabitants, if less advanced in society, to learn, the arts and uses of agriculture. This will enable the latter gradually to contract, and the former gradually to extend their settlements, till the science of agriculture is equally improved in both. By these means, the intentions of nature will be fulfilled; the old and the new inhabitants will be reciprocally useful; peace will be preserved, and justice will be done.

It is the duty of a nation to augment its numbers. The performance of this duty will naturally result from the discharge of its other duties: by discharging them, the number of persons born in the society will be increased; and strangers will be incited to wish a participation in its blessings. Among other means of increasing the number of citizens, there are three of peculiar efficacy. The first is, easily to receive all strangers of good character, and to communicate to them the advantages of liberty. The state will be thus filled with citizens, who will bring with them commerce and the arts, and a rich variety of manners and characters. Another means conducive to the same end is, to encourage marriages. These are the pledges of the state. A third means for augmenting the number of inhabitants is, to preserve the rights of conscience inviolate. The right of private judgment is one of the greatest advantages of mankind; and is always considered as such. To be deprived of it is insufferable. To enjoy it lays a foundation for that peace of mind, which the laws cannot give, and for the loss of which the laws can offer no compensation.

A nation should aim at its perfection. The advantage and improvement of the citizens are the ends proposed by the social union. Whatever will render that union more perfect will promote these ends. The same principles, therefore, which show that a man ought to pursue the perfection of his nature, will show, likewise, that the citizens ought to contribute every thing in their power towards the perfection of the state. This right involves the right of preventing and avoiding every thing, which would interrupt or retard the progress of the state towards its perfection. It also involves the right of acquiring every thing, without which its perfection cannot be promoted or obtained.

Happiness is the centre, to which men and nations are attracted: it is, therefore, the duty of a nation to consult its happiness. In order to do this, it is necessary that the nation be instructed to search for happiness where happiness is to be found. The impressions that are made first, sink deepest; they frequently continue through life. That seed, which is sown in the tender minds of youth, will produce abundance of good, or abundance of evil. The education of youth, therefore, is of prime importance to the happiness of the state. The arts, the sciences, philosophy, virtue, and religion, all contribute to the happiness, all, therefore, ought to receive the encouragement, of the nation. In this manner, publick and private felicity will go hand in hand, and mutually assist each other in their progress.

When men have formed themselves into a state or nation, they may reciprocally enter into particular engagements, and, in this manner, contract new obligations in favour of the members of the community; but they cannot, by this union, discharge themselves from any duties which they previously owed to those, who form no part of the union. They continue under all the obligations required by the universal society of the human race—the great society of nations. The law of that great and universal society requires, that each nation should contribute to the perfection and happiness of the others. It is, therefore, a duty which every nation owes to itself, to acquire those qualifications, which will fit and enable it to discharge those duties which it owes to others. What those duties are, we shall now very concisely and summarily inquire. The first and most necessary duty of nations, as well as of men, is to do no wrong or injury. Justice is a sacred law of nations. If the law of the great society of nations requires, as we have seen it to require, that each should contribute to the perfection and happiness of others; the first degree of this duty surely is, that each should abstain from every thing, which would positively impair that perfection and happiness. This great principle prohibits one nation from exciting disturbances in another, from seducing its citizens, from depriving it of its natural advantages, from calumniating its reputation, from debauching the attachment of its allies, from fomenting or encouraging the hatred of its enemies. If, however, a nation, in the necessary prosecution of its own duties and rights, does what is disagreeable or even inconvenient to another, this is not to be considered as an injury; it ought to be viewed as the unavoidable result, and not as the governing principle of its conduct. If, at such conduct, offence is taken, it is the fault of that nation, which takes, not of that nation, which occasions it.

But nations are not only forbidden to do evil; they are also commanded to do good to one another. The duties of humanity are incumbent upon nations as well as upon individuals. An individual cannot subsist, at least he cannot subsist comfortably, by himself. What is true concerning one, is true concerning all. Without mutual good offices and assistance, therefore, happiness could not be procured, perhaps existence could not be preserved. Hence the necessity of the duties of humanity among individuals. Every one is obliged, in the first place, to do what he can for himself; in the next, to do what he can for others; beginning with those with whom he is most intimately connected. The consequence is, that each man is obliged to give to others every assistance, for which they have a real occasion, and which he can give without being wanting to himself. What each is obliged to perform for others, from others he is entitled to receive. Hence the advantage as well as the duty of humanity. These principles receive an application to states as well as to men. Each nation owes to every other the duties of humanity. It is true, there may be some difference in the application, in this as well as in other instances: but the principles of the application are the same. A nation can subsist by itself more securely and more comfortably than an individual can; therefore the duty of mutual assistance will not, at all periods, be equally indispensable, or return with equal frequency. But when it becomes, as it may become, equally indispensable; and when it returns, as it may return, with equal frequency; it ought, in either case, to be equally performed. One individual may attack another daily: a longer time is necessary for the aggression of one nation upon another. The assistance, therefore, which ought to be given to the individual daily, will be necessary for the nation only at more distant intervals of time. But between nations, what the duties of humanity lose in point of frequency, they gain in point of importance, in proportion, perhaps, to the difference between a single individual, and all those individuals of whom the nation is composed. One nation ought to give to another, not only the assistance necessary to its preservation, but that also which is necessary to its perfection, whenever it is wanted, and whenever, consistently with other superiour duties, it can be given. The cases in which assistance ought to be demanded, and those in which it ought to be given, must be decided respectively by that nation which demands, and by that of which the demand is made. It is incumbent on each to decide properly; not to demand, and not to refuse, without strong and reasonable cause.

It may, perhaps, be uncommon, but it is certainly just, to say that nations ought to love one another. The offices of humanity ought to flow from this pure source. When this happily is the case, then the principles of affection and of friendship prevail among states as among individuals: then nations will mutually support and assist each other with zeal and ardour; lasting peace will be the result of unshaken confidence; and kind and generous principles, of a nature far opposite to mean jealously, crooked policy, or cold prudence, will govern and prosper the affairs of men. And why should not this be the case? When a number of individuals, by the social union, become fellow citizens, can they, by that union, devest themselves of that relation, which subsists between them and the other—the far greater—part of the human species? With regard to those, can they cease to be men?

The love of mankind is an important duty and an exalted virtue. Much has been written, much has been said concerning the power of intellectual abstraction, which man possesses, and which distinguishes him so eminently from the inferiour orders of animals. But little has been said, and little has been written, concerning another power of the human mind, still more dignified, and, beyond all comparison, more amiable—I may call it the power of moral abstraction.

All things in nature are individuals. But when a number of individuals have a near and striking resemblance, we, in our minds, class them together, and refer them to a species, to which we assign a name. Again; when a number of species have a resemblance, though not so near and striking, we, in the same manner, class them also together, and refer them to a genus, to which we likewise assign a name. Different genera may have a resemblance, though still less close and striking; we refer them to a higher genus, till we arrive at being, the highest genus of all. This is the progress of intellectual abstraction.

We are possessed of a moral power, similar in its nature and in its progress—a principle of good will as well as of knowledge. This principle of benevolence is indeed primarily and chiefly directed towards individuals, those especially, with whom we are or wish to be most intimately connected. But this principle, as well as the other, is capable of abstraction, and of embracing general objects. The culture, the improvement, and the extension of this principle ought to have made, in the estimation of philosophers, as important a figure among the moral, as the other has made among the intellectual powers and operations of the mind; for it is susceptible of equal culture, of equal improvement, and of equal extension.

“After having,” says the illustrious Neckar, in his book concerning the importance of religious opinions, “proved myself a citizen of France, by my administration, as well as my writings, I wish to unite myself to a fraternity still more extended, that of the whole human race. Thus, without dispersing our sentiments, we may be able to communicate ourselves a great way off, and enlarge, in some measure, the limits of our circle. Glory be to our thinking faculties for it! to that spiritual portion of ourselves, which can take in the past, dart into futurity, and intimately associate itself with the destiny of men of all countries and of all ages!”[39]

To the same purpose is the sentiment of Cicero, in his beautiful treatise on the nature and offices of friendship. “In tracing the social laws of nature,” says he, “it seems evident, that man, by the frame of his moral constitution, is supposed to consider himself as standing in some degree of social relation to the whole species in general; and that this principle acts with more or less vigour, according to the distance at which he is placed with respect to any particular community or individual of his kind.”[40]

This principle of benevolence and sociability, which is not confined to one sect or to one state, but ranges excursive through the whole expanded theatre of men and nations, instead of being always acknowledged and always recommended, as it ought to have been, has been altogether omitted by some philosophers: by some, its existence seems to have been doubted or denied.

“Some sort of union,” says Rutherforth, in his institutes of natural law, “there is between all nations: they are all included in the collective idea of mankind, and are frequently spoken of under this general name. But this is not a social union: the several parts of the collective idea, whether we consider the great body of mankind as made up of individuals or of nations, are not connected, as the several parts of a civil society are, by compact among themselves: the connexion is merely notional, and is only made by the mind, for its own convenience.”[41]

The very enlarged active power, concerning which I speak, is, to this day, so far as I know, without an appropriated name. The term philanthropy approaches near, but does not reach it. We sometimes call it patriotism, by a figurative extension of that term, which, in its proper meaning, denotes a circle of benevolence limited by the state, of which one is a member. When we speak of the most exalted of all characters, of the man who possesses this virtue, we generally describe him, by a metaphor, a “citizen of the world.” A “man of the world,” which would be the more natural expression, though it is in common use, is used to convey a very different idea.

If the general observations, which I have before made concerning the nature, the structure, and the evidence of language, be well founded, the particular remarks I have now made will appear to be striking and just.

This power of moral abstraction should be exercised and cultivated with the highest degree of attention and zeal. It is as necessary to the progress of exalted virtue, as the power of intellectual abstraction is to the progress of extensive knowledge. The progress of the former will be accompanied with a degree of pleasure, of utility, and of excellence, far superiour to any degree of those qualities, which can accompany the latter. The purest pleasures of mathematical learning spring from the source of accurate and extended intellectual abstraction. But those pleasures, pure as they are, must yield the palm to those, which arise from abstraction of the moral kind. By this power, exerted in different proportions, the commonwealth of Pennsylvania, the empire of the United States, the civilized and commercial part of the world, the inhabitants of the whole earth, become objects of a benevolence the warmest, and of a spirit the most patriotick; for custom, the arbitress of language, has not yet authorized a more appropriate epithet. By this power, a number of individuals, who, considered separately, may be so minute, so unknown, or so distant, as to elude the operations of our benevolence, yet, comprehended under one important and distinguished aspect, may become a general and complex object, which will warm and dilate the soul. By this power the capacity of our nature is enlarged; men, otherwise invisible, are rendered conspicuous; and become known to the heart as well as to the understanding. This enlarged and elevated virtue ought to be cultivated by nations with peculiar assiduity and ardour. The sphere of exertion, to which an individual is confined, is frequently narrow, however enlarged his disposition may be. But the sphere, to the extent of which a state may exert herself, is often comparatively boundless. By exhibiting a glorious example in her constitution, in her laws, in the administration of her constitution and laws, she may diffuse reformation, she may diffuse instruction, she may diffuse happiness over this whole terrestrial globe.

How often and how fatally are expressions and sentiments perverted! How often and how fatally is perverted conduct the unavoidable and inveterate effect of perverted sentiment and expression! What immense treasures have been exhausted, what oceans of human blood have been shed, in France and England, by force of the expression “natural enemy!” ’Tis an unnatural expression. The antithesis is truly in the thought: for natural enmity forms no title in the genuine law of nations, part of the law of nature. It is adopted from a spurious code.

The foregoing rules and maxims of national law, though they are the sacred, the inviolable, and the exalted precepts of nature, and of nature’s Author, have been long unknown and unacknowledged among nations. Even where they have been known and acknowledged, their calm still voice has been drowned by the solicitations of interest, the clamours of ambition, and the thunder of war. Many of the ancient nations conceived themselves to be under no obligations whatever to other states or the citizens of other states, unless they could produce in their favour a connexion formed and cemented by a treaty of amity.

At last, however, the voice of nature, intelligible and persuasive, has been heard by nations that are civilized: at last it is acknowledged that mankind are all brothers: the happy time is, we hope, approaching, when the acknowledgment will be substantiated by a uniform corresponding conduct.

How beautiful and energetick are the sentiments of Cicero on this subject. “It is more consonant to nature,” that is, as he said a little before, to the law of nations, “to undertake the greatest labours, and to undergo the severest trouble, for the preservation and advantage of all nations, if such a thing could be accomplished, than to live in solitary repose, not only without pain, but surrounded with all the allurements of pleasure and wealth. Every one of a good and great mind, would prefer the first greatly before the second situation in life.” “It is highly absurd to say, as some have said, that no one ought to injure a parent or a brother, for the sake of his own advantage; but that another rule may be observed concerning the rest of the citizens: such persons determine that there is no law, no bonds of society among the citizens, for the common benefit of the commonwealth. This sentiment tends to dissolve the union of the state. Others, again, admit that a social regard is to be paid to the citizens, but deny that this regard ought to be extended in favour of foreigners: such persons would destroy the common society of the human race; and if this common society were destroyed, the destruction would involve, in it, the fate also of beneficence, liberality, goodness, justice. Which last virtue is the mistress and the queen of all the other virtues.”[42] By justice here, Cicero clearly means that universal justice, which is the complete accomplishment of the law of nature.

It has been already observed, that there is one part of the law of nations, called their voluntary law, which is founded on the principle of consent: of this part, publick compacts and customs received and observed by civilized states form the most considerable articles.

Publick compacts are divided into two kinds—treaties and sponsions. Treaties are made by those who are empowered, by the constitution of a state, to represent it in its transactions with other nations. Sponsions are made by an inferiour magistrate or officer, on behalf of the state, but without authority from it. Such compacts, therefore, do not bind the state, unless it confirms them after they are made. These take place chiefly in negotiations and transactions between commanding officers, during a war.

Though the power of making treaties is usually, it is not necessarily annexed to sovereign power. Some of the princes and free cities of Germany, though they hold of the emperour and the empire, have nevertheless the right of making treaties with foreign nations: this right, as well as several other rights of sovereignty, the constitution of the empire has secured to them.

With a policy, wiser and more profound, because it shuts the door against foreign intrigues with the members of the union, no state comprehended within our national government, can enter into any treaty, alliance, or confederation.[43] It is in the constitution or fundamental laws of every nation, that we must search, in order to discover what power it is, which has sufficient authority to contract, with validity, in the name of the state.

A treaty is valid, if there has been no essential defect in the manner, in which it has been made; and, in order to guard against essential defects, it is only necessary that there be sufficient power in the contracting parties, that their mutual consent be given, and that that consent be properly declared.

It is a truth certain in the law of nature, that he who has made a promise to another, has given to that other a perfect right to demand the performance of the promise. Nations and the representatives of nations, therefore, ought to preserve inviolably their treaties and engagements: by not preserving them, they subject themselves to all the consequences of violating the perfect right of those, to whom they were made. This great truth is generally acknowledged; but too frequently an irreligious disregard is shown to it in the conduct of princes and states. But such a disregard is weak as well as wicked. In publick as in private life, among sovereigns as among individuals, honesty is the best policy, as well as the soundest morality. Among merchants, credit is wealth; among states and princes, good faith is both respectability and power.

A state, which violates the sacred faith of treaties, violates not only the voluntary, but also the natural and necessary law of nations; for we have seen that, by the law of nature, the fulfilment of promises is a duty as much incumbent upon states as upon men. Indeed it is more incumbent on the former than on the latter; for the consequences both of performing and of violating the engagements of the former, are generally more important and more lasting, than any which can flow from engagements performed or violated by individuals. Hence the strict propriety, as well as the uncommon beauty of the sentiment—that if good faith were banished from every other place, she should find an inviolable sanctuary at least in the bosoms of princes. Every treaty should be illuminated by perspicuity and candour. A tricking minister is, in real infamy, degraded as much below a vulgar cheat, as the dignity of states is raised above that of private persons. Ability and address in negotiation may be used to avoid, never to accomplish a surprise.

Fraud in the subsequent interpretation, is equally base and dishonourable as fraud in the original structure of treaties. In the scale of turpitude, it weighs equally with the most flagrant and notorious perfidy.

Treaties and alliances are either personal or real. The first relate only to the contracting parties, and expire with those who contract. The second relate to the state, in whose name and by whose authority the contract was made, and are permanent as the state itself, unless they determine, at another period, by their own limitation. Every treaty or alliance made with a commonwealth is, in its own nature, real; for it has reference solely to the body of the state. When a free people make an engagement, it is the nation which contracts. Its stipulations depend not on the lives of those, who have been the instruments in forming the treaty: nor even on the lives of those citizens, who were alive when the treaty was formed. They change; but the commonwealth continues the same.

Hence the stability and the security of treaties made with commonwealths. By the faithful observance of their treaties, the Cantons of Switzerland have rendered themselves respectable and respected over all Europe. Let it be mentioned to the honour of the parliament of Great Britain, that it has frequently thanked its king for his zeal and attachment to the treaties, in which he has engaged the nation. The corruption of the best things and institutions, however, always degenerates into the worst. The citizens of Carthage prostituted the character of their republick to such a degree, that, if we may believe the testimony of an enemy, Punica fides (Carthaginian faith) became proverbial, over the ancient world, to denote the extreme of perfidy. As the United States have surpassed others, even other commonwealths, in the excellence of their constitution and government; it is reasonably to be hoped, that they will surpass them, likewise, in the stability of their laws, and in their fidelity to their engagements.

In the great chart of the globe of credit, we hope to see American placed as the very antipode of Carthaginian faith.

CHAPTER V

Of Municipal Law

[OMITTED]

CHAPTER VI

Of Man, as an Individual

[OMITTED]

CHAPTER VII

Of Man, as a Member of Society

“It is not fit that man should be alone,” said the all-wise and all-gracious Author of our frame, who knew it, because he made it; and who looked with compassion on the first solitary state of the work of his hands. Society is the powerful magnet, which, by its unceasing though silent operation, attracts and influences our dispositions, our desires, our passions, and our enjoyments. That we should be anxious to share, and, by sharing, to divide our afflictions, may, to some, appear by no means strange, because a certain turn of thinking will lead them to ascribe this propensity to the selfish rather than to the social part of our nature. But will this interested solution account for another propensity, equally uniform and equally strong? We are no less impatient to communicate our pleasures than our woes. Does self-interest predominate here? No. Our social affection acts here unmixed and uncontrolled.

     There’s not a blessing individuals find,
     But some way leans and hearkens to the kind.
     No bandit fierce, no tyrant mad with pride,
     No caverned hermit rests self-satisfied.
     Who most to shun or hate mankind pretend,
     Seek an admirer, or would fix a friend.
     Abstract what others feel, what others think,
     All pleasures sicken, and all glories sink.[44]

In all our pictures of happiness, which, at certain gay and disengaged moments, appear, in soft and alluring colours, to our fancy, does not a partner of our bliss always occupy a conspicuous place? When, on the other hand, phantoms of misery haunt our disturbed imaginations, do not solitary wanderings frequently form a principal part of the gloomy scenes? It is not an uncommon opinion, and, in this instance, our opinions must be vouched by our feelings, that the most exquisite punishment, which human nature could suffer, would be, in total solitude, to languish out a lengthened life.

. . .

How various and how unwearied are the workings of the social aim! Deprived of one support, it lays hold on another: deprived of that other, it lays hold on another still. While an intelligent, or even an animate being can be found, it will find an object for its unremitted pursuit and attachment.

We may extract sweet lessons of liberty and sociability from the prison of barbarous and despotick power. A French nobleman was long immured in a dreary and solitary apartment. When he had uttered many an unavailing sigh after society, he, at last, was fortunate enough to discover a spider, who had taken up his abode in the same room. Delighted with the acquisition, he immediately formed a social intercourse with the joint inhabitant of his sequestered mansion. He enjoyed, without molestation, this society for a considerable time. But the correspondence was, at last, discovered by his keeper, long tutored and accustomed to all the ingenious inventions and refinements of barbarity. By an effort, which evinced him a consummate master of his art, he killed the spider, and reduced his prisoner again to absolute solitude. The nobleman, after his release, used frequently to declare, that he had seldom experienced more poignant distress, than what he had suffered from the loss of his companion in confinement.

Some philosophers, however, have alleged, that society is not natural, but is only adventitious to us; that it is the mere consequence of direful necessity; that, by nature, men are wolves to men; not wolves to wolves; for between them union and society have a place; but as wolves to sheep, destroyers and devourers. Men, say they, are made for rapine; they are destined to prey upon one another: each is to fight for victory, and to subdue and enslave as many of his fellow creatures, as he possibly can, by treachery or by force. According to these philosophers, the only natural principles of man are selfishness, and an insatiable desire of tyranny and dominion. Their conclusion is, that a state of nature, instead of being a state of kindness, society, and peace, is a state of selfishness, discord, and war. By a strange perversion of things, they would so explain all the social passions and natural affections, as to denominate them of the selfish species. Humanity and hospitality towards strangers or those in distress are represented as selfishness, only of a more deliberate kind. An honest heart is only a cunning one; and good nature is a well regulated self-love. The love of posterity, of kindred, of country, and of mankind—all these are only so many different modifications of this universal self-love.

But if we attend to our nature and our state; if we listen to the operations of our own minds, to our dispositions, our sensations, and our propensities; we shall be fully and agreeably convinced, that the narrow and hideous representation of these philosophers is not founded on the truth of things; but, on the contrary, is totally repugnant to all human sentiment, and all human experience. Indeed, an appeal to themselves will evince, that their philosophy is not consistent even with the instinctive principles of their own hearts—principles, of which the native lustre will, at some times, beam forth, notwithstanding all the care employed to cover or extinguish it. The celebrated Sage of Malmesbury,[45] savage and unsociable as he would make himself and all mankind appear, took the utmost pains that, during his life, and even after his death, others might be kindly rescued from the unhappy delusions, by which they were prevented from discovering the truth.b He told us “that both in religion and in morals, we were imposed on by our governours; that there is nothing, which, by nature, inclines us either way; and that nothing naturally draws us to the love of what is without or beyond ourselves.”[46] And yet he was the most laborious of all men in composing and publishing systems of this kind—for our use.

To such philosophers, animated with this preposterous zeal, this answer, in the spirit of their own doctrines, is plain and easy. If there is nothing to carry you without yourselves; what are we to you? From what motives do you give yourselves all this concern about us? What can induce you to trim your midnight lamp, and waste your spirits in laborious vigils, for our instruction? You disclaim all social connexion with your species; what, then, we say again, are we to you?

But a subject, in itself so material to the sciences of philosophy and of law, merits a serious, a full, and a patient discussion. For it is of high practical importance, that the principles of society should be properly explained and well understood. It has been one of the happy characteristicks of the present age, both on this and on the other side of the Atlantick, that the spirit of philosophy has been wisely directed to the just investigation of those principles; and that the spirit of patriotism has been vigorously exerted in their support.

In a very early part of these lectures, it was observed, concerning definitions and divisions, that by them we are in danger of circumscribing nature within the limits of our own notions, formed frequently on partial and defective views. A very remarkable instance of this occurs in the subject, on the examination of which we now enter.

The intellectual powers of the mind have been commonly divided into simple apprehension, judgment, and reasoning. This division has received the sanction of high antiquity, and of a very extensive adoption; yet it is far from being complete. From it many of the operations of the understanding are excluded, such as consciousness, moral perception, taste, memory, and our perception of objects by means of our external senses. But, besides all these, there is a whole class, and a very important one too, of our intellectual operations, which, because they were not fortunate enough to be included within the foregoing division, have been overlooked by philosophers, and have not even yet been distinguished by a name. Some operations of the mind may take place in a solitary state: others, from their very nature, are social; and necessarily suppose a communication with some other intelligent being. In a state of absolute solitude, one may apprehend, and judge, and reason. But when he bears or hears testimony; when he gives or receives a command; when he enters into an engagement by a promise or a contract; these acts imply necessarily something more than apprehension, judgment, and reasoning; they imply necessarily a society with other beings, social as well as intelligent.

Simple apprehension is unaccompanied with any judgment or belief, concerning the object apprehended. Judgment is formed, as these philosophers say, by comparing ideas, and by perceiving their agreements and disagreements. Reasoning is an operation, by which, from two or more judgments, we deduce a conclusion. Now, from this account of these three operations of the mind, it appears unquestionably, that testimony is neither apprehension, nor judgment, nor reasoning. The same observation will apply, with the same propriety, to a promise, to an agreement, to a contract. Testimony, agreements, contracts, promises form very distinguished titles in that law, which it is the object of these lectures to delineate: perhaps it has already been evinced to your satisfaction, that some of them form its very basis.

That system of human nature must, indeed, appear extremely inadequate and defective, by which articles of such vast importance, both in theory and in the business of life, are left without a place, and without a name.

The attempts of some philosophers to reduce the social operations under the common philosophical divisions, resemble very much the attempts of others, to reduce all our social affections to certain modifications of self love. The Author of our existence intended us to be social beings; and has, for that end, given us social intellectual powers. They are original parts of our constitution; and their exertions are no less natural than the exertions of those powers, which are solitary and selfish.

Our social intellectual operations appear early in life, and before we are capable of reasoning; yet they suppose a conviction of the existence of other intelligent and social beings. A child asks a question of his nurse, and waits for her answer: this implies a conviction that she is intelligent and social; that she can receive and return a communication of thoughts and sentiments.

All languages are fitted to express the social as well as the solitary operations of the mind. To express the former is indeed the primary and the direct intention of language. A man, who had no interchange of sentiments with other social and intelligent beings, would be as mute as the irrational animals that surround him. By language, we communicate to others that, which we know: by language, we learn from others that, of which we are ignorant: by language, we advise, persuade, console, encourage, sooth, restrain: in consequence of language, we are united by political societies, government, and laws: by means of language, we are raised from a situation, in which we should be as rude and as savage as the beasts of the woods.

In the more imperfect societies of mankind, such as those composed of colonies scarcely settled in their new seats, it might pass for sufficient good fortune, if the people proved only so far masters of language, as to be able to understand one another, to confer about their wants, and to provide for their common necessities. Their exposed and indigent state would not afford them either that leisure or that easy disposition, which is requisite for the cultivation of the fine arts. They, who were neither safe from violence, nor secure from want, would not be likely to engage in unnecessary pursuits. It could not be expected that they would turn their attention towards the numbers of their language, or to its best and most perfect application and arrangement. But when, in process of time, the affairs of the society were settled on an easy and secure foundation; when debates and discourses, on the subjects of common interest and of publick good, were become familiar; when the speeches of distinguished characters were considered and compared; then there would be observed, between one speaker and another, a difference, not only with regard to a more agreeable measure of sound, but to a happier and more easy arrangement of sentiment.

The attention paid to language is one distinguishing mark of the progress of society towards its most refined period: as society improves, influence is acquired by the means of reasoning and discourse: in proportion as that influence is felt to increase, in proportion will be the care bestowed upon the methods of expressing conceptions with propriety and elegance. In every polished community, this study has been considered as highly important, and has possessed a place in every plan of liberal education.

In all languages, a question, a promise, a contract, which are social acts, can be expressed as easily and as properly, as a judgment, which is a solitary act. The expression of a judgment has been dignified with a particular appellation; it has been denominated a proposition. It has been analyzed, with great logical parade, into its several parts: its elements of subject, predicate, and copula have been exhibited in ostentatious arrangement: their various modifications have been traced and examined in laborious and voluminous tracts. The expression of a question, of a covenant, or of a promise is as susceptible of analysis as the expression of a judgment: but this has not been attempted; these operations of the mind have not been honoured even with a distinct and appropriate name. Why has so much pains been taken, why has so much labour been bestowed in analyzing, and assigning appropriate names to the solitary operations, and the expression of the solitary operations of the understanding; while so little attention has been allotted to such of its operations as are social? Perhaps it will be difficult to assign any other reason than this: in the divisions, which have been made of the operations of the mind, the social ones have been omitted; and, consequently, have not been introduced to notice or regard.

Our moral perceptions, as well as the other powers of our understanding, indicate, in the strongest manner, our designation for society. Veracity, and its corresponding quality, confidence, show this, in a very striking point of view. If we were intended for solitude, those qualities could have neither operation nor use. On the other hand, without those qualities, society could not be supported. Without the latter, the former would be useless: without the former, the latter would be dangerous. Without confidence in promises, for instance, we must, in the greatest part of our conduct, proceed entirely upon the calculations of chance: but there could be no confidence in promises, if there was no principle, from which their performance might be reasonably expected.

Some may imagine, that though this principle did not exist, yet human affairs might, perhaps, be carried on as well; for that general caution and mutual distrust would be the necessary result; and where no confidence would be reposed, no breach of it could happen. But, not to mention the uneasiness and anxiety which would unavoidably attend such a situation, it is not considered how much, in every hour of our lives, we trust to others; and how difficult, if not entirely impracticable, it would be to perform the most common as well as the most important business of human life, without such trust. The conclusion is, that the performance of promises is essential to society.

Deeply laid in human nature, we now behold the basis of one of the principal pillars of private municipal law; that, which enforces the obligation of promises, agreements, and covenants.

Again; the moral sense restrains us from harming the innocent: it teaches us, that the innocent have a right to be secure from harm. These are two great principles, which prepare us for society; and, with regard to them, the moral sense discovers peculiar inflexibility: it dictates, that we should submit to any distress or danger, rather than procure our safety and relief by violence upon an innocent person. Similar to the restraint, respecting personal safety and security, is the restraint, which the moral sense imposes on us, with regard to property. Robbery and theft are indulged by no society: from a society even of robbers, they are strictly excluded. The necessity of the social law, with regard to personal security, is so evident, as to require no explanation. Its necessity, with regard to property, will be explained and made evident by the following remarks.

Man has a natural propensity to store up the means of his subsistence: this propensity is essential, in order to incite us to provide comfortably for ourselves, and for those who depend on us. But this propensity would be rendered ineffectual, if we were not secured in the possession of those stores which we collect; for no one would toil to accumulate what he could not possess in security. This security is afforded by the moral sense, which dictates to all men, that goods collected by the labour and industry of individuals are their property; and that property ought to be inviolable.

We beheld, a little while ago, one of the principal pillars of civil law founded deeply in our nature: we now perceive the great principles of criminal law laid equally deep in the human frame. Violations of property and of personal security are, as we shall afterwards show particularly, the objects of that law. To punish, and, by punishing, to prevent them, is or ought to be the great end of that law, as shall also be particularly shown.

That we are fitted and intended for society, and that society is fitted and intended for us, will become evident by considering our passions and affections, as well as by considering our moral perceptions, and the other operations of our understandings. We have all the emotions, which are necessary in order that society may be formed and maintained: we have tenderness for the fair sex: we have affection for our children, for our parents, and for our other relations: we have attachment to our friends: we have a regard for reputation and esteem: we possess gratitude and compassion: we enjoy pleasure in the happiness of others, especially when we have been instrumental in procuring it: we entertain for our country an animated and vigorous zeal: we feel delight in the agreeable conception of the improvement and happiness of mankind.

     The centre mov’d, a circle straight succeeds,
     Another still, and still another spreads.
     Friend, parent, neighbour first it will embrace,
     His country next, and next all human race;
     Wide and more wide, th’ o’erflowings of the mind
     Take ev’ry creature in, of ev’ry kind;
     Earth smiles around, with boundless bounty blest,
     And heav’n beholds its image in his breast.[47]

How naturally, and sometimes how strongly, are our passions communicated from one to another, without even the least knowledge of the cause, by which they were originally produced! They are conveyed by aspect: the very countenance is infectious: the emotion flies from face to face: it is no sooner seen than experienced: like the electrick shock, it is felt instantaneously by a whole multitude; though, perhaps, only one of them knows from whence it proceeds. Such is the force of society in the passions.

This sympathy is an important quality of many of our passions: in particular, it invites and produces a communication of joys and sorrows, hopes and fears. Spirits, the most generous and the most susceptible of strong impressions, are the most social and combining. They delight most to move in concert; and feel, in the strongest manner, the force of the confederating charm.

The social powers and dispositions of our minds discover themselves in the earliest periods of life. So soon as a child can speak, he can ask, and he can answer a question: before he can speak, he shows signs of love, of resentment, and of other affections necessarily pointed to society. He is capable of social intercourse long before he is capable of reasoning. We behold this charming intercourse between his mother and him, before he is a year old. He can, by signs, ask and refuse, threaten and supplicate. In danger, he clings to his mother—for I will not, on this occasion, distinguish between the mother and the nurse—he enters into her joy and grief, is happy in her caresses, and is unhappy in her displeasure.

As sociability attends us in our infancy; she continues to be our companion through all the variegated scenes of our riper years. By an irresistible charm, she insinuates herself into the hearts of every rank and class of men, and mixes in all the various modes and arrangements of human life. Let us suppose a man of so morose and acrimonious a disposition, as to shun . . . all communication with his species; even such a misanthropist would wish for at least one associate, into whose bosom he might discharge the rancour and virulence of his own heart.

Society is necessary as well as natural to us. To support life, to satisfy our natural appetites, to obtain those agreeable enjoyments of which our nature is susceptible, many external things are indispensable. In order to live with any degree of comfort, we must have food, clothing, habitations, furniture, and utensils of some sort. These cannot be procured without much art and labour; nor without the friendly assistance of our fellows in society.

Let us suppose a man of full strength, and well instructed in all our arts of life, to be reduced suddenly to solitude, even in one of the best of soils and climates: could he procure the grateful conveniences of life? It will not be pretended. Could he procure even its simple necessaries? In an ingenious and excellent romance, we are told this has been done. But it will be remembered, that the foundation of Robinson Crusoe’s future subsistence, and of all the comforts which he afterwards provided and collected, was laid in the useful instruments and machines, which he saved from his shipwreck. These were the productions of society.

Could one, uninstructed in our arts of life, and unfurnished with the productions of society, subsist in solitude, though he were of full age, and possessed of health and strength? the probabilities would run strong against him.

Could one subsist in solitude during the weak, uninformed, and inexperienced period of his infancy? This he could not do, unless, like another Romulus and Remus, he owed his subsistence to the social aid of the wolves.

But let us, for a moment, suppose, that food, raiment, and shelter were supplied even by a miracle; a solitary life must be continually harassed by dangers and fears. Suppose those dangers and fears to be removed; could he find employment for the most excellent powers and instincts of his mind? Could he indulge affection or social joy? could he communicate, or could he receive social pleasure or social regard? Dispositions very different indeed—sour discontentment, sullen melancholy, listless languor—must prey upon his soul.

The reciprocal assistance of those, who compose a single family, may procure many of the necessaries of life; and may diminish its dangers. In this state some room will be afforded for social enjoyments, and for the finer operations of the mind. Still greater pleasures and advantages would be obtained by the union of a few families in the same neighbourhood. They would undertake and execute laborious works for the common good of all; and social emotions would operate in a less contracted circuit. Associations, still larger, will enlarge the sphere of pleasure and enjoyment; and will furnish more diversified and delightful exercise to our powers of every kind. Knowledge is increased: inventions are discovered: experience improves them: and the inventions, with their improvements, are spread over the whole community. Designs of durable and extensive advantage are boldly formed, and vigorously carried into effect. The social and benevolent affections range in an ample sphere; and attain an eminent degree of strength and refinement.

On what does our security—on what do our enjoyments depend? On our mutual services and sympathetick pleasures. Other animals have strength or speed sufficient for their preservation and defence. Man is, in all states, encompassed with weakness and dangers: but the strength and safety, which he wants by himself, he finds, when he is united with his equals. Nature has endowed him with a principle, which gives him force and superiority, where otherwise he would be helpless and inferiour. By sociability, they, who separately could make no effectual resistance, conquer and tame the various kinds of the brute creation. Society is the cause, that, not satisfied with the element on which he was born, man extends his dominion over the sea. Society supplies him with remedies in his diseases, with comfort in his afflictions, and with assistance in his old age. Take away society, and you destroy the basis, on which the preservation and happiness of human life are laid.

“There is nothing more certain,” says Cicero, “than the excellent maxim of Plato—that we are not intended solely for ourselves; but that our friends and our country claim a portion of our birth. Since, according to the doctrine of the stoicks, the productions of the earth are designed for men, and men are designed for the mutual aid of one another; we should certainly pursue the design of Nature, and promote her benign intention, by contributing our proportion to the general interest, by mutually performing and receiving good offices, and by employing our care, our industry, and even our fortune, in order to strengthen the love and friendship, which should always predominate in human society.”[48]

In point of dignity, the social operations and emotions of the mind rise to a most respectable height. The excellency of man is chiefly discerned in the great improvements, of which he is susceptible in society: these, by perseverance and vigour, may be carried on progressively to degrees higher and higher, above any limits which we can now assign.

Our social affections and operations acquire still greater importance, in another point of view: they promote and are necessary to our happiness. “If we could suppose ourselves,” says Cicero, who knew so well how to illustrate law by philosophy—“if we could suppose ourselves transported by some divinity into a solitude, replete with all the delicacies which the heart of man could desire, but excluded, at the same time, from every possible intercourse with our kind, there is not a person in the world of so unsocial and savage a temper, as to be capable, in these forlorn circumstances, of relishing any enjoyment.” “Nothing,” continues he, “is more true, than what the philosopher Archytas is reported to have said: If a man were to be carried up into heaven, and see the beauties of universal nature displayed before him, he would receive but little pleasure from the wonderful scenes, unless there was some person, to whom he could relate the glories, which he had viewed. Human nature is so constituted, as to be incapable of solitary satisfactions. Man, like those plants which are formed to embrace others, is led, by an instinctive impulse, to recline on those of his own kind.”[49]

     Man, like the gen’rous vine, supported lives;
     The strength he gains is from th’ embrace he gives.[50]

The observations, which we make in common life, vouch the justness of these sentiments. We see those persons possess the greatest share of happiness, who have about them many objects of love and endearment. To the want of these objects, may be ascribed the moroseness of monks, and of those who, without entering into any religious order, lead the lives of monks.

Of the same nature with the indulgence of domestick affections, and equally refreshing to the spirit, is the pleasure, which flows from acts of beneficence, either in bestowing pecuniary favours, or in imparting, to those who want it, the benefit of our advice, or the assistance of our professional skill. The last consideration is urged, with peculiar propriety, by the professor of law. Innumerable instances occur, in which gentlemen of the bar, who possess abilities and character, can bestow what may be called favours, even on those, who are both able and willing to pay well for their services. When a client has an important business depending, entire confidence in the integrity and talents of his counsel diffuses over his mind a degree of composure and serenity, against which a fee, weighed in the balance, would be found wanting. This is particularly the case, when the life or the reputation of the client is at stake.

The foregoing observations may also be applied to publick services done for the state, by assisting her in her councils, or by defending or prosecuting her interests. Even if no suitable return, as it sometimes happens, should be received from the state for such services; yet a mind, nurtured to the refined and enlarged exercise of the social passion, will find no trivial pleasure in the reflection that it has performed them, and that those, for whom they were performed, enjoy the advantages resulting from them. Virtue, in such an instance, will prove herself her own reward. A man, whose soul vibrates in unison with the benevolent affections, will always find within him an encouragement, and a compensation too, for discharging his duty—an encouragement and a compensation, of which ingratitude itself cannot deprive him.

I will not appeal to vanity, and ask, if any thing can be more flattering, than to obtain the praises and acclamations of others. But I will appeal to conscious rectitude, and ask, whether any thing can be more satisfactory, than to deserve their regard and esteem. The possession of science is always attended with pleasure: but science, believe me, acquires an increased relish, when we have an opportunity of pouring it into the bosoms of others. We receive a redoubled satisfaction from the agreeable, though, perhaps, the flattering opinion, that we communicate entertainment and instruction; and from the opinion, better founded, that even weak attempts to communicate entertainment and instruction are received with reflected social emotions.

What can be more productive of happiness than even those wants, which are the foundations of so many blessings—love and friendship, generosity and reliance, kindness and gratitude? The gratifications even of sense lose their relish, if not heightened by the “spes mutui credula animi”[51]—corresponding social emotions.

Our esteem of others, too, arising from the approbation of their conduct, is a most pleasing affection. The contemplation of a great and good character warms the heart, and invigorates the whole frame.

The wisest and most benign constitution of a rational and moral system is that, in which the degree of private affection, most useful to the individual, is, at the same time, consistent with the greatest interest of the system; and in which the degree of social affection, most useful to the system, is, at the same time, productive of the greatest happiness to the individual. Thus it is in the system of society. In that system, he who acts on such principles, and is governed by such affections, as sever him from the common good and publick interest, works, in reality, towards his own misery: while he, on the other hand, who operates for the good of the whole, as is by nature and by nature’s God appointed him, pursues, in truth, and at the same time, his own felicity.

Regulated by this standard, extensive, unerring, and sublime, self-love and social are the same.

To a state of society, then, we are invited from every quarter. It is natural; it is necessary; it is pleasing; it is profitable to us. The result of all is, that for a state of society we are designated by Him, who is all-wise and all-good.

Society may be distinguished into two kinds, natural and civil. This distinction has not been marked with the accuracy, which it well merits. Indeed some writers have given little or no attention to the latter kind; others have expressly denied it, and said, that there can be no civil society without civil government. But this is certainly not the case. A state of civil society must have existed, and such a state, in all our reasonings on this subject, must be supposed, before civil government could be regularly formed and established. Nay, ’tis for the security and improvement of such a state, that the adventitious one of civil government has been instituted. To civil society, indeed, without including in its description the idea of civil government, the name of state may be assigned, by way of excellence. It is in this sense that Cicero seems to use it, in the following beautiful passage. “Nothing, which is exhibited on our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated,—jure sociati—are denominated states.”[52]

How often has the end been sacrificed to the means! Government was instituted for the happiness of society: how often has the happiness of society been offered as a victim to the idol of government! But this is not agreeable to the true order of things: it is not consistent with the orthodox political creed. Let government—let even the constitution be, as they ought to be, the handmaids; let them not be, for they ought not to be, the mistresses of the state.

A state may be described—a complete body of free persons, united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person: it has an understanding and a will peculiar to itself: it has its affairs and its interests: it deliberates and resolves: it has its rules; it has its obligations; and it has its rights. It may acquire property, distinct from that of its members: it may incur debts, to be discharged out of the publick stock, not out of the private fortunes of individuals: it may be bound by contracts, and for damages arising quasi ex contractu (as though from contract). In order to constitute a state, it is indispensably necessary, that the wills and the power of all the members be united in such a manner, that they shall never act nor desire but one and the same thing, in whatever relates to the end, for which the society is established. It is from this union of wills and of strength, that the state or body politick results. The only rational and natural method, therefore, of constituting a civil society, is by the convention or consent of the members, who compose it. For by a civil society we properly understand, the voluntary union of persons in the same end, and in the same means requisite to obtain that end. This union is a benefit, not a sacrifice: civil is an addition to natural order.

This union may rationally be supposed to be formed in the following manner: if a number of people, who had hitherto lived independent of each other, wished to form a civil society, it would be necessary to enter into an engagement to associate together in one body, and to regulate, with one common consent, whatever regards their preservation, their security, their improvement, their happiness.

In the social compact, each individual engages with the whole collectively, and the whole collectively engage with each individual. These engagements are obligatory, because they are mutual. The individuals who are not parties to them, are not members of the society. Smaller societies may be formed within a state by a part of its members. These societies also are deemed to be moral persons; but not in a state of natural liberty: their actions are cognizable by the superiour power of the state, and are regulated by its laws. To these societies the name of corporations is generally appropriated, though somewhat improperly; for the term is strictly applicable to supreme as well as to inferiour bodies politick. The foregoing account of the formation of civil society, which refers it to original engagements; and consequently resolves the duty of submission to the laws of the society, into the universal obligation of fidelity in the performance of promises, is warmly attacked by a sensible and ingenious writer.[53] He represents it, as founded on a supposition, false in fact; as insufficient, if it was true, for the purposes, for which it is produced; and as leading to dangerous consequences. He acknowledges, however, that, in the United States, transactions have happened, which bear the nearest resemblance to this political idea, of any, of which history has preserved the account or the memory. This subject has already received some; it will afterwards receive more attention and examination. At present, it is sufficient, and it is proper, to intimate to you the point of discussion; for it is a very important one in the science of government.

In civil society, previously to the institution of civil government, all men are equal. Of one blood all nations are made; from one source the whole human race has sprung. When we say, that all men are equal; we mean not to apply this equality to their virtues, their talents, their dispositions, or their acquirements. In all these respects, there is, and it is fit for the great purposes of society that there should be, great inequality among men. In the moral and political as well as in the natural world, diversity forms an important part of beauty; and as of beauty, so of utility likewise. That social happiness, which arises from the friendly intercourse of good offices, could not be enjoyed, unless men were so framed and so disposed, as mutually to afford and to stand in need of service and assistance. Hence the necessity not only of great variety, but even of great inequality in the talents of men, bodily as well as mental. Society supposes mutual dependence: mutual dependence supposes mutual wants: all the social exercises and enjoyments may be reduced to two heads—that of giving, and that of receiving: but these imply different aptitudes to give and to receive.

Many are the degrees, many are the varieties of human genius, human dispositions, and human characters. One man has a turn for mechanicks; another, for architecture; one paints; a second makes poems: this excels in the arts of a military; the other, in those of civil life. To account for these varieties of taste and character, is not easy; is, perhaps, impossible. But though their efficient cause it may be difficult to explain; their final cause, that is, the intention of Providence in appointing them, we can see and admire. These varieties of taste and character induce different persons to choose different professions and employments in life: these varieties render mankind mutually beneficial to each other, and prevent too violent oppositions of interest in the same pursuit. Hence we enjoy a variety of conveniences; hence the numerous arts and sciences have been invented and improved; hence the sources of commerce and friendly intercourse between different nations have been opened; hence the circulation of truth has been quickened and promoted; hence the operations of social virtue have been multiplied and enlarged.

     Heaven, forming each on other to depend,
     Bids each on other for assistance call,
     ’Till one man’s weakness grows the strength of all.
     Wants, frailties, passions closer still ally
     The common interest, or endear the tie:
     To these we owe true friendship, love sincere,
     Each home-felt joy, that life inherits here.[54]

How insipidly uniform would human life and manners be, without the beautiful variety of colours, reflected upon them by different tastes, different tempers, and different characters!

But however great the variety and inequality of men may be with regard to virtue, talents, taste, and acquirements; there is still one aspect, in which all men in society, previous to civil government, are equal. With regard to all, there is an equality in rights and in obligations; there is that “jus aequum,” that equal law, in which the Romans placed true freedom. The natural rights and duties of man belong equally to all. Each forms a part of that great system, whose greatest interest and happiness are intended by all the laws of God and nature. These laws prohibit the wisest and the most powerful from inflicting misery on the meanest and most ignorant; and from depriving them of their rights or just acquisitions. By these laws, rights, natural or acquired, are confirmed, in the same manner, to all; to the weak and artless, their small acquisitions, as well as to the strong and artful, their large ones. If much labour employed entitles the active to great possessions, the indolent have a right, equally sacred, to the little possessions, which they occupy and improve.

As in civil society, previous to civil government, all men are equal; so, in the same state, all men are free. In such a state, no one can claim, in preference to another, superiour right: in the same state, no one can claim over another superiour authority. Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those, for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such a manner, and upon such objects, as his inclination and judgment shall direct; provided he does no injury to others; and provided some publick interests do not demand his labours. This right is natural liberty. Every man has a sense of this right. Every man has a sense of the impropriety of restraining or interrupting it. Those who judge wisely, will use this liberty virtuously and honourably: those, who are less wise, will employ it in meaner pursuits: others, again, may, perhaps, indulge it in what may be justly censured as vicious and dishonourable. Yet, with regard even to these last, while they are not injurious to others; and while no human institution has placed them under the control of magistrates or laws, the sense of liberty is so strong, and its loss is so deeply resented, that, upon the whole, more unhappiness would result from depriving them of their liberty on account of their imprudence, than could be reasonably apprehended from the imprudent use of their liberty.

The right of natural liberty is suggested to us not only by the selfish parts of our constitution, but by our generous affections; and especially by our moral sense, which intimates to us, that in our voluntary actions consist our dignity and perfection. The laws of nature are the measure and the rule; they ascertain the limits and the extent of natural liberty.

In society, when the sentiments of the members are not unanimous, the voice of the majority must be deemed the will of the whole. That the majority, by any vote, should bind not only themselves, but those also who dissent from that vote, seems, at first, to be inconsistent with the well known rules—that all men are naturally equal; and that all men are naturally free. From these rules, it may be alleged, that no one can be bound by the act of another, without his own consent. But it is to be remembered, that society is constituted for a certain purpose; and that each member of it consents that this purpose shall be carried on; and, consequently, that every thing necessary for carrying it on shall be done. Now a number of persons can jointly do business only in three ways—by the decision of the whole, by the decision of the majority, or by the decision of the minority. The first case is not here supposed, nor is there occasion to make a question concerning it. The only remaining question, then, which can be proposed, is, which is most reasonable and equitable—that the minority should bind the majority—or that the majority should bind the minority? The latter, certainly. It is most reasonable; because it is not so probable, that a greater number, as that a smaller number, concurring in judgment, should be mistaken. It is most equitable; because the greater number are presumed to have an interest in the society proportioned to that number. Besides; though, in the case supposed, the minority are bound without their immediate consent; they are bound by their consent originally given to the establishment of the society, for the purposes which it was intended to accomplish. For it has been already observed, that those, who enter not into the original engagement forming the society, are not to be considered as members: all the members, therefore, must have originally given their consent.

The rule, which we have mentioned, may be altered and modified by positive institution. In some cases, the consent of a number larger than a mere majority: in others, even unanimity may be required.

This is the proper place for considering a question of very considerable importance in civil society, and concerning which there has been much diversity in the sentiments of writers, and in the laws and practice of states: has a state a right to prohibit the emigration of its members? may a citizen dissolve the connexion between him and his country? On the principles of the compact of association, which I have already stated, there seems to be but little doubt that one article of it may be, that each individual binds himself indissolubly to the society, while the society performs, on its part, the stipulated conditions. This engagement each individual may make for himself: . . . but can he make it for his children and his posterity? must they be and continue bound by the act of their father and ancestor?

The notion of natural, perpetual, and unalienable allegiance from the citizen to the society, or to the head of the society, of which he was born a member, has, by some writers and in some countries, been carried very far indeed: and their practice has been equally rigorous with their principles. The well known maxim, which the writers upon the law of England have adopted and applied to this case is, “Nemo potest exuere patriam” (No one can case of his country). It is not, therefore, as is holden by that law, in the power of any private subject to shake off his allegiance, and to transfer it to a foreign prince. Nor is it in the power of any foreign prince, by naturalizing or employing a subject of Great Britain, to dissolve the bond of allegiance between that subject and the crown. . . .

The reasons in favour of the position, that a citizen cannot dissolve the political connexion between him and his country, may be stated in the following manner. Every citizen, as soon as he is born, is under the protection of the state, and is entitled to all the advantages arising from that protection: he, therefore, owes obedience to that power, from which the protection, which he enjoys, is derived. But while he continues in infancy and nonage, he cannot perform the duties of obedience. The performance of them must be respited, till he arrive at the years of discretion and maturity. When he arrives at those years, he owes obedience, not only for the protection, which he then enjoys, but also for that, which, from his birth, he has enjoyed. Obedience now becomes a duty founded upon principles of gratitude, as well as upon principles of interest: it becomes a debt, which nothing but the performance of the duties of citizenship, during a whole life, will discharge.[55]

But, notwithstanding this train of thought and reasoning, there are certainly cases, in which a citizen has an unquestionable right to renounce his country, and go in quest of a settlement in some other part of the world. One of these cases is, when, in his own country, he cannot procure a subsistence. Another is, when the society neglects to fulfil its obligations to the citizen. A third is, when the society would establish laws, on things, to which the original social compact cannot oblige the citizen to submit.[56]

In answer to the inferences drawn from principles of gratitude, it may be observed, that every man being born free, a native citizen, when he arrives at the age of discretion, may examine whether it be convenient for him to join in the society, for which he was destined by his birth. If, on examination, he finds, that it will be more advantageous to him to remove into another country, he has a right to go, making to that which he leaves a proper return for what it has done in his favour, and preserving for it, as far as it shall be consistent with the engagements, which his new situation and connexions may require, the sentiments of respect and attachment.

The sentiments of Mr. Locke on this subject go much further. “’Tis plain,” says he, “by the law of right reason, that a child is born a subject of no country or government. He is under his father’s tuition and authority, till he comes to the age of discretion; and then he is a freeman, at liberty what government he will put himself under; what body politick he will unite himself to.”[57]

“O glorious regulations!” says Cicero, “originally established for us by our ancestors of Roman name; that no one of us should be obliged to belong to more than one society, since a dissimilitude of societies must produce a proportioned variety of laws; that no one, contrary to his inclination, should be deprived of his right of citizenship; and that no one, contrary to his inclinations, should be obliged to continue in that relation. The power of retaining and of renouncing our rights of citizenship, is the most stable foundation of our liberties.”[58]

In the digest of the Roman law, it is laid down as a rule, that every one is at liberty to choose the state, of which he wishes to be a member.[59] Indeed, excepting in some very particular cases, every one ought to be at liberty to leave the state. This general liberty is not only just, but may be productive of much generous emulation among states, and of extensive advantages to their citizens. Those states, which manage their affairs best, will offer the strongest inducements to their own citizens to remain, and to others to incorporate among them. On the other hand, it is both inhuman and unjust to convert the state into a prison for its citizens, by preventing them from leaving it on a prospect of advantage to themselves. True it is, that they ought to make compensation for any advantages, which they have derived from the state at its expense: but equally true it is, that this compensation is generally made, by their having contributed annually, during their past residence, towards the publick revenue, by paying taxes on property, as all men, even minors, do; and by consuming goods, on which imposts or duties have been levied.

Emigration may arise from various causes. It may be occasioned by the population of a country. In this case, great numbers may be constantly leaving the state, and yet the state may be increasing in population. It has been suggested by some writers, that the right of exposing children has been one cause of the populousness of China. Surely the prospect that they will be comfortably provided for, if not in their own, yet in another country, must be a much more powerful, as well as more humane incentive to marriages.

Insecurity, hardships, oppression may be the causes of emigration. A nation whose inhabitants are in a predicament so disagreeable, may be in declining circumstances; but those circumstances, indicating a decline, are not the effects of emigration; they are the effects of the evils and calamities which occasion it. Two things, which are commonly considered as cause and effect, are often no more than two collateral effects of the same cause.

Independently, therefore, of the question of right, there can be but few cases, in which emigration could be prohibited on the sound principles of policy. Emigration, it is true, may be a symptom of languor and decay; but it may also be an evidence and a consequence of the overflowing vigour and prosperity of the state.

Permit me to suggest a still further reason—to me it appears a strong one—in favour of unrestrained emigration. In a free state, the consent of every citizen to its institution and government ought to be evinced either by express declarations, or by the strongest and justest presumptions. When a state is formed, the residence of a citizen is presumed a sufficient evidence of his assent and acquiescence in its institutions: to reside in any country is universally deemed a submission to its authority. But that these presumptions may be fairly drawn, we must be understood as speaking of a state, from which the citizens have liberty to depart with their effects at pleasure. Where this liberty is not enjoyed, the considerations of family, of property, and many other considerations that are without a name, may detain a man, much against his inclination, in a country, in which he finds himself trammelled. In such case, his residence is no reasonable evidence of his consent to the formation, the constitution, the government, or the laws of the state.

Upon the whole it appears, that the right of emigration is a right, advantageous to the citizen, and generally useful even to the state. . . .

CHAPTER VIII

Of Man, as a Member of a Confederation.

[OMITTED]

CHAPTER IX

Of Man, as a Member of the Great Commonwealth of Nations

Every civil society, under whatever form it appears, whether governed merely by the natural laws of such a society, or by them and civil institutions superadded—every such society, not subordinate to another, is a sovereign state.

Those, who unite in society, lived, before their union, in a state of nature: a state of nature is a state of equality and liberty. That liberty and that equality, belonging to the individuals, before the union, belong, after the union, to the society, which those individuals compose. The consequence is, that a society is subjected to no power or authority without it; that it may do what is necessary for its preservation; that it may exercise all its rights, and is obliged to give an account of its conduct to no one. But these things constitute what is called sovereignty. Every state, therefore, composed of individuals, free and equal, is a state sovereign and independent. The aggregate body possesses all the rights of the individuals, of whom it is formed.

Another consequence is, that the rights of any one state are naturally the same as those of every other. States are moral persons, who live together in a natural society, under the law of nations. To give a state a right to make an immediate figure in the great society of nations, it is sufficient, if it be really sovereign and independent; that is, it must govern itself by its own authority.[60] Thus, when the United Colonies found it necessary to dissolve the political bonds, which had connected them with Great Britain, and to assume among the powers of the earth the separate and equal station, to which the laws of nature and of nature’s God entitled them; they had a right to publish and declare, as, in fact, they did publish and declare, that “they were free and independent states; and that, as free and independent states, they had full power to levy war, to conclude peace, contract alliances, establish commerce, and to do all other acts and things, which independent states may of right do”; though, at that time, no articles of confederation were agreed upon; nor was any form of civil government instituted by them.

A number of individuals, who have formed themselves into a society or state, are, with regard to the purposes of the society, bound to consider themselves as one moral person. But the rest of mankind, who are not parties to this social compact, are under no obligation to take notice of it; and may still consider the society as a large number of unconnected persons. This personality—I know no better expression for it—of a state must, as to other nations, be derived from their consent and agreement. But when a society have once associated, and considered and announced themselves to other nations as a moral person, this consent and agreement ought not to be refused, without solid and special reasons, which will justify the refusal. On this consent and agreement, the mutual and mutually beneficial intercourse of nations is founded: whatever, therefore, promotes this intercourse, should be zealously encouraged; whatever prevents or interrupts it, should be cautiously avoided. Though one state has, by an unequal alliance, formed a connexion with another state more powerful; still the weaker state is to be reckoned in the class of sovereigns. To the weaker state, the unequal alliance may secure the most assistance; on the stronger, it may reflect the most honour; but it leaves both the same rank among the society of nations.

We may go further; if a state, in order to provide for its own safety, finds it necessary to place itself under the protection of another; and, in consideration of that protection, stipulates to perform equivalent offices, without devesting itself of the right of self-government; such a state ceases not to preserve its place among sovereigns. The payment even of tribute, though it may diminish the dignity of the society, by no means destroys or impairs its sovereignty or its rights.

Two sovereign states may employ the same executive magistrate, or bear allegiance to the same prince, without any dependence on each other; and each may retain all its national rights, free and undiminished. This last, under the house of Stuart, was the case of England and Scotland, before the nation of Great Britain was formed by their union. This last, also, as shall be hereafter shown at large, was the case of Great Britain and the American colonies, before the political connexion between them was declared to be dissolved.

But one people who have passed under the dominion of another, can no longer form a state: they can no longer retain a place in the great society of nations. Of that great society, equality is the basis and the rule. To this equality, the inferiority of subjection and the superiority of command are, alike, repugnant.

This equality of nations is the great and general foundation of national rights. In this matter, no regard is had to names. On the great theatre of the world, empires, kingdoms, commonwealths, principalities, dukedoms, free towns, are all equally imperial. A society, which, without subordination to any other, exercises within itself all the essential powers of society, is sovereign, and has all the rights of a sovereign and independent state; however narrow its territories; however small its numbers may be.

Every nation deserves consideration and respect; because it makes an immediate figure in the grandest society of the human race; because it is independent of all earthly power; and because it is an assemblage of a number of men, who, doubtless, are more considerable than any individual.

With regard to precedency, or the first place among equals, power and antiquity are grounds, upon which it is claimed or allowed. Into this question, the forms of government do not enter.

. . .

CHAPTER X

Of Government

[OMITTED]

CHAPTER XI

Comparison of the Constitution of the United States, with that of Great Britain.

[OMITTED]

 


 

FOOTNOTES

1.     William Blackstone, Commentaries on the Laws of England, Book 1, §38.

2.     Richard Hooker, Of the Laws of Ecclesiastical Polity, Book 1, ch. 2.

3.     Daws. Orig. Laws, 4. 14.

4.     Hooker, Laws of Ecclesiastical Polity, Book 1, ch. 11.  

5.     Blackstone, Commentaries, Book 1, §38.

6.     Blackstone, Commentaries, Book 1, §43.

7.     Frederick II ("Frederick the Great"), King of Prussia. Works. Vol. 6, p. 48, 50. (Editor: Probably a quotation of the essay "The Anti-Macchiavel," which Frederick II published, in close collabortion with Voltaire, in 1740.)

8.     Frederick II, King of Prussia. Works. Vol. 6, pp. 83, 84.

9.     Jean Jacques Burlamaqui, Principles of Natural and Politic Law (1748). (Translated into English by Nugent. Cambridge, 1752). Volume 1, Part 1, Ch. 9 ("Of the foundation of sovereignty, or the right of commanding"), section II.

10.   Burlamaqui, Principles of Natural Law, Vol. 1, Part 1, ch. 9, section III.1. (Editor: The whole paragraph is lifted verbatim from Burlamaqui. The portion in quotation marks is Burlamaqui's own quote of Thomas Hobbes's De Cive, ch. 15, section 5.)

11.   Ibid.

12.   Burlamaqui, Principles of Natural Law, Vol. 1, Part 1, ch. 9, section III.2.

13.   Ibid., IV.1.

14.   Ibid., V.2.

15.   Thomas Rutherforth (Rutherford), Institutes of Natural Law, Volume 1, Ch. 1, section VI.

16.   Hugo Grotius, "Preliminary Discourse Concerning the Certainty of Right," in The Rights of War and Peace, Volume 1,  Book 1, Chapter 1, section X.2, footnote 3. (Editor: This is actually a quotation of a footnote by the early editor of this text, Jean Barbeyrac, who is here commenting on Grotius's text).

17.   Hein. 63; Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Sections VI, VIII, X (pages 207, 210, 212); Samuel von Pufendorf (Puffendorf), The Whole Duty of Man According to the Law of Nature, Book 1, chapter 2, sections 5 and 6.

18.   Jean Jacques Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Sections VIII, X, I (pages 210, 212, 202); Hein. 10.

19.   Thomas Rutherforth, Institutes of Natural Law, Volume 1, section 9.

20.   Jean Jacques Burlamaqui, Principles of Natural and Politic Law, Vol. 1, Part 2, Ch. 7, Section 13.1–3,7; Ch. 8, Section 1 (pages 214, 216; 219, 220).  

21.   William Paley, The Principles of Moral Philosophy (1785), Book 2, Ch. 6 [82 in Wilson's numbering]; Hein., 51.

22.   Hein., 50; Grotius, Preliminary Discourse Concerning the Certainty of Right, section 17; Pufendorf, The Whole Duty of Man, Book 2, chapter 3, section 15 [Book I, ch. 3, section IX in the edition linked here].

23.   Thomas Rutherforth, Institutes of Natural Law, Volume 1, section 9.

24.  "Principem legem illam et ultimam, mentem esse dicebant, omnia ratione aut cogentis, aut vetantis dei." ("They [the wisest men] said that the primary and ultimate law was the mind of God who either compels or forbids all things by reason.") Cicero, De Legibus Book 2, section 8.

25.  "Quae est gens, aut quod genus hominum, quod non habeat sine doctrina antecipationem quandam [deorum? . . . ], id est, anteceptam animo rei quandam informationem, sine qua nec intelligi quidquam, nec quaeri, nec disputari potest." ("What nation is there, or what race of men is there, that does not have, [and] without instruction, some preconception [of the gods? . . .]—that is, some information of the reality already taken into one's soul, without which nothing can be understood, sought, or debated.") Cicero, De Natura Deorum, Book 1, Ch. 16. Wilson's text omits the portion of the original represented here by [deorum? . . .].

26.  Titus Lucretius Carus (99–55 BC) was a Roman poet and Epicurean philosopher who wrote De Rerum Natura (On the Nature of Things). [Comment of the Online Library of Liberty]

27.  William Paley, Principles of Moral Philosophy, Book I, Ch. 5; Henry Home, Lord Kames, Principles of Equity (1760), Ch. 1, page 8.

28.  Francis Hutcheson, An Essay on the Nature anc Conduct of the Passions and Affections, with Illustrations on the Moral Sense, 237, 121.

29.  Joseph Addison (1672–1719) was an English writer and politician who founded The Spectator. [Comment of the Online Library of Liberty]

30.  Alexander Pope, Essay on Man, Epistle 3, verse 99.

31.  Cicero, De Republica, Book 3, Section 33.

32.  Richard Hooker, The Laws of Ecclesiastical Polity, Book 1, section 6, page 8.

33.  Barbeyrac, Preface to Pufendorf, The Whole Duty of Man, section 29, page 79.

34.  Hugo Grotius, Preliminary Discourse Concerning the Certainty of Right, section 41.

35.  Ibid., section 14.

36.  Pufendorf, The Whole Duty of Man, page 149. Book 2, chapter 3, section 23.

37.  Emer (Emmerich) de Vattel, The Law of Nations, Preface.

38.  Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, Volume 1, Part 2, Ch. 6, Section 7; Burlamaqui, 196.

39.  Jacques Necker, On the Importance of Religious Opinions. Preface, 19.

40.  Cicero, De Amicitia, section 5[16].

41.  Thomas Rutherforth (Rutherford), Institutes of Natural Law, Volume 2, 463, 464.

42.  Cicero, De Officiis, book 3, section 5[183] and section 6[184].

43.  U.S. Constitution, Article 1, section 10.

44.  Alexander Pope, Essay on Man, Epistle 4, verse 39.

45.  William of Malmesbury (c. 1090–c. 1143) was a great English historian who lived much of his life as a monk at Malmesbury Abbey. [Comment of the Online Library of Liberty]

46.  William of Malmesbury, Historia Novella, The Shaftsbury Charter, 90.

47.  Pope, Essay on Man, Epistle 4, verse 365.

48.  Cicero, De Officiis, Book 1, section 22.

49.  Cicero, De Amicitia, section 23[87, 88].

50.  Pope, Essay on Man, Epistle 3, verse 311.

51.  Literally, “the trusting hope of mutual feeling,” but a clearer sense of the tone is “the naive hope that love will be requited.” The phrase is from Horace, Odes, 4.1.29. [Comment of the Online Library of Liberty]

52.  Cicero , "The Dream of Scipio," De Republica, Book 6, ch. 3[section 13].

53.  William Paley, The Principles of Moral and Political Philosophy, Book 6, Ch. 3 ("The Duty of Submission to Civil Government Explained").

54.  Pope, Essay on Man, Epistle 2, verse 249.

55.  2 P. Williams, 123, 124.

56.  Vattel, The Law of Nations. Book 1, Ch. 19, sections 223–25.

57.  John Locke, Second Treatise of Government, Section 118.

58.  Cicero, Pro Balbo, ch. 13[31].

59.  The Digest/Pandects of Justinian [of Roman Law], book 49, t. 15.

60.  Vattel, The Law of Nations, book 1, Preliminaries, section 4.

Pierce v. Society of Sisters, abridged

By The Supreme Court of the United States of America

Argued March 16,17, 1925

Decided June 1, 1925

[The Supreme Court of the United States of America. Pierce, Governor of Oregon, et al. v. Society of the Sisters of the Holy Name of Jesus; Pierce, Governor of Oregon, et al. v. Hill Military Academy. 268 U.S. 510. 1925. In the Public Domain.]

 


[SUMMARY: In 1922, the State of Oregon passed a law requiring that all parents send their children (with a few exceptions) to public schools or pay penalties. Some private schools sued the state to overturn the law because it both threatened their business and violated the rights of parents to educate their children as they chose. The case was heard by the Supreme Court, which unanimously ruled that the law should be overturned. –Editor]

 

. . .

JUDGES: Taft, Holmes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Sanford, Stone

MR. JUSTICE McREYNOLDS delivered the opinion of the Court.

These appeals are from decrees, based upon undenied allegations, which granted preliminary orders restraining appellants from threatening or attempting to enforce the Compulsory Education Act[1] adopted November 7, 1922, under the initiative provision of her Constitution by the voters of Oregon. . . .They present the same points of law; there are no controverted questions of fact. Rights said to be guaranteed by the federal Constitution were specially set up, and appropriate prayers asked for their protection.

The challenged Act, effective September 1, 1926, requires every parent, guardian or other person having control or charge or custody of a child between eight and sixteen years to send him “to a public school for the period of time a public school shall be held during the current year” in the district where the child resides; and failure so to do is declared a misdemeanor. There are exemptions (not specially important here) for children who are not normal, or who have completed the eighth grade, or who reside at considerable distances from any public school, or whose parents or guardians hold special permits from the County Superintendent. The manifest purpose is to compel general attendance at public schools by normal children, between eight and sixteen, who have not completed the eighth grade. And without doubt enforcement of the statute would seriously impair, perhaps destroy, the profitable features of appellees’ business and greatly diminish the value of their property.

Appellee, the Society of Sisters, is an Oregon corporation, organized in 1880, with power to care for orphans, educate and instruct the youth, establish and maintain academies or schools, and acquire necessary real and personal property. It has long devoted its property and effort to the secular and religious education and care of children, and has acquired the valuable good will of many parents and guardians. It conducts interdependent primary and high schools and junior colleges, and maintains orphanages for the custody and control of children between eight and sixteen. In its primary schools many children between those ages are taught the subjects usually pursued in Oregon public schools during the first eight years. Systematic religious instruction and moral training according to the tenets of the Roman Catholic Church are also regularly provided. All courses of study, both temporal and religious, contemplate continuity of training under appellee’s charge; the primary schools are essential to the system and the most profitable. It owns valuable buildings, especially constructed and equipped for school purposes. The business is remunerative—the annual income from primary schools exceeds thirty thousand dollars—and the successful conduct of this requires long time contracts with teachers and parents. The Compulsory Education Act of 1922 has already caused the withdrawal from its schools of children who would otherwise continue, and their income has steadily declined. The appellants, public officers, have proclaimed their purpose strictly to enforce the statute.

After setting out the above facts the Society’s bill alleges that the enactment conflicts with the right of parents to choose schools where their children will receive appropriate mental and religious training, the right of the child to influence the parents’ choice of a school, the right of schools and teachers therein to engage in a useful business or profession, and is accordingly repugnant to the Constitution and void. And, further, that unless enforcement of the measure is enjoined the corporation’s business and property will suffer irreparable injury.

Appellee, Hill Military Academy, is a private corporation organized in 1908 under the laws of Oregon, engaged in owning, operating and conducting for profit an elementary, college preparatory and military training school for boys between the ages of five and twenty-one years. The average attendance is one hundred, and the annual fees received for each student amount to some eight hundred dollars. The elementary department is divided into eight grades, as in the public schools; the college preparatory department has four grades, similar to those of the public high schools; the courses of study conform to the requirements of the State Board of Education. Military instruction and training are also given, under the supervision of an Army officer. It owns considerable real and personal property, some useful only for school purposes. The business and incident good will are very valuable. In order to conduct its affairs long time contracts must be made for supplies, equipment, teachers and pupils. Appellants, law officers of the State and County, have publicly announced that the Act of November 7, 1922, is valid and have declared their intention to enforce it. By reason of the statute and threat of enforcement appellee’s business is being destroyed and its property depreciated; parents and guardians are refusing to make contracts for the future instruction of their sons, and some are being withdrawn.

The Academy’s bill states the foregoing facts and then alleges that the challenged Act contravenes the corporation’s rights guaranteed by the Fourteenth Amendment and that unless appellants are restrained from proclaiming its validity and threatening to enforce it irreparable injury will result. The prayer is for an appropriate injunction.

No answer was interposed in either cause, and after proper notices they were heard by three judges . . . on motions for preliminary injunctions upon the specifically alleged facts. The court ruled that the Fourteenth Amendment guaranteed appellees against the deprivation of their property without due process of law consequent upon the unlawful interference by appellants with the free choice of patrons, present and prospective. It declared the right to conduct schools was property and that parents and guardians, as a part of their liberty, might direct the education of children by selecting reputable reachers and places. Also, that these schools were not unfit or harmful to the public, and that enforcement of the challenged statute would unlawfully deprive them of patronage and thereby destroy their owners’ business and property. Finally, that the threats to enforce the Act would continue to cause irreparable injury; and the suits were not premature.

No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.

The inevitable practical result of enforcing the Act under consideration would be destruction of appellees’ primary schools, and perhaps all other private primary schools for normal children within the State of Oregon. These parties are engaged in a kind of undertaking not inherently harmful, but long regarded as useful and meritorious. Certainly there is nothing in the present records to indicate that they have failed to discharge their obligations to patrons, students or the State. And there are no peculiar circumstances or present emergencies which demand extraordinary measures relative to primary education.

Under the doctrine of Meyer v. Nebraska, . . . we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control. As often heretofore pointed out, rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State. The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.

Appellees are corporations and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. . . . But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action. . . .

The courts of the State have not construed the Act, and we must determine its meaning for ourselves. Evidently it was expected to have general application and cannot be construed as though merely intended to amend the charters of certain private corporations, . . . No argument in favor of such view has been advanced.

Generally it is entirely true, as urged by counsel, that no person in any business has such an interest in possible customers as to enable him to restrain exercise of proper power of the State upon the ground that he will be deprived of patronage. But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property. Their interest is clear and immediate, within the rule approved in . . . many other cases where injunctions have issued to protect business enterprises against interference with the freedom of patrons or customers. . . .

The suits were not premature. The injury to appellees was present and very real, not a mere possibility in the remote future. If no relief had been possible prior to the effective date of the Act, the injury would have become irreparable. Prevention of impending injury by unlawful action is a well recognized function of courts of equity.

The decrees below are

Affirmed.

 



NOTES

[1] Be it Enacted by the People of the State of Oregon:

Section 1. That Section 5259, Oregon Laws, be and the same is hereby amended so as to read as follows:

Sec. 5259. Children Between the Ages of Eight and Sixteen Years   Any parent, guardian or other person in the State of Oregon, having control or charge or custody of a child under the age of sixteen years and of the age of eight years or over at the commencement of a term of public school of the district in which said child resides, who shall fail or neglect or refuse to send such child to a public school for the period of time a public school shall be held during the current year in said district, shall be guilty of a misdemeanor and each day’s failure to send such child to a public school shall constitute a separate offense; provided, that in the following cases, children shall not be required to attend public schools:

(a) Children Physically Unable   Any child who is abnormal, subnormal or physically unable to attend school.

(b) Children Who Have Completed the Eighth Grade   Any child who has completed the eighth grade, in accordance with the provisions of the state course of study.

(c) Distance from school   Children between the ages of eight and ten years, inclusive, whose place of residence is more than one and one-half miles, and children over ten years of age whose place of residence is more than three miles, by the nearest traveled road, from a public school; provided, however, that if transportation to and from school is furnished by the school district, this exemption shall not apply.

(d) Private Instruction   Any child who is being taught for a like period of time by the parent or private teacher such subjects as are usually taught in the first eight years in the public school; but before such child can be taught by a parent or a private teacher, such parent or private teacher must receive written permission from the county superintendent, and such permission shall not extent longer than the end of the current school year. Such child must report to the county school superintendent or some person designated by him at least once every three months and take an examination in the work covered. If, after such examination, the county superintendent shall determine that such child is not being properly taught, then the county super-intendent shall order the parent, guardian or other person, to send such child to the public school the remainder of the school year.

If any parent, guardian or other person having control or charge or custody of any child between the ages of eight and sixteen years, shall fail to comply with any provision of this section, he shall be guilty of a misdemeanor, and shall, no conviction thereof, be subject to a fine of not less than $ 5, nor more than $ 100, or to imprisonment in the county jail not less than two nor more than thirty days, or by both such fine and imprisonment in the discretion of the court.

This Act shall take effect and be and remain in force from and after the first day of September, 1926.

Shelley v. Kraemer, abridged

By The Supreme Court of the United States of America

January 15-16, 1948, Argued

May 3, 1948, Decided

[The Supreme Court of the United States of America. Shelley et Ux. v. Kraemer et Ux. 334 U.S. 1. 1948. In the Public Domain.]


. . .

 

SYLLABUS

Private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residen­tial purposes do not violate the Fourteenth Amendment; but it is violative of the equal protection clause of the Four­teenth Amendment for state courts to enforce them. . . .

(a) Such private agreements standing alone do not violate any rights guaranteed by the Fourteenth Amendment. Pp. 12­13.

(b) The actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment. Pp. 14-18.

(c) In granting judicial enforcement of such private agreements in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment. Pp. 18-23.

(d) The fact that state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by them does not prevent the enforcement of covenants excluding colored persons from constituting a denial of equal protection of the laws, since the rights created by § 1 of the Fourteenth Amendment are guaranteed to the individual. Pp. 21-22.

(e) Denial of access to the courts to enforce such restrictive covenants does not deny equal protection of the laws to the parties to such agreements. P. 22.

JUDGES: Vinson, Black, Frankfurter, Douglas, Murphy, Burton; Reed, Jackson and Rutledge took no part in the con­sideration or decision of this case.

OPINION BY: VINSON

OPINION

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.

These cases present for our consideration questions relating to the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property. Basic constitutional issues of obvious importance have been raised.

The first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was subsequently recorded, providing in part:

“. . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [sic] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.”

The entire district described in the agreement included fifty-seven parcels of land. The thirty owners who signed the agreement held title to forty-seven parcels, including the particular parcel involved in this case. At the time the agree­ment was signed, five of the parcels in the district were owned by Negroes. One of those had been occupied by Negro families since 1882, nearly thirty years before the restrictive agreement was executed. The trial court found that owners of seven out of nine homes on the south side of Labadie Avenue, within the restricted district and "in the immediate vicinity" of the premises in question, had failed to sign the restrictive agreement in 1911. At the time this action was brought, four of the premises were occupied by Negroes, and had been so occupied for periods ranging from twenty-three to sixty-three years. A fifth parcel had been occupied by Negroes until a year before this suit was instituted.

On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable consideration received from one Fitzgerald a warranty deed to the parcel in question. The trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase.

On October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be restrained from taking pos­session of the property and that judgment be entered divesting title out of petitioners Shelley and revesting title in the immediate grantor or in such other person as the court should direct. The trial court denied the requested relief on the ground that the restrictive agreement, upon which respondents based their action, had never become final and complete because it was the intention of the parties to that agreement that it was not to become effective until signed by all property owners in the district, and signatures of all the owners had never been obtained.

The Supreme Court of Missouri sitting en banc reversed and directed the trial court to grant the relief for which respondents had prayed. That court held the agreement effective and concluded that enforcement of its provi­sions violated no rights guaranteed to petitioners by the Federal Constitution. At the time the court rendered its deci­sion, petitioners were occupying the property in question.

The second of the cases under consideration comes to this Court from the Supreme Court of Michigan. The circum­stances presented do not differ materially from the Missouri case. In June, 1934, one Ferguson and his wife, who then owned the property located in the city of Detroit which is involved in this case, executed a contract providing in part:

“This property shall not be used or occupied by any person or persons except those of the Caucasian race.

 “It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction.”

The agreement provided that the restrictions were to remain in effect until January 1, 1960. The contract was subse­quently recorded; and similar agreements were executed with respect to eighty percent of the lots in the block in which the property in question is situated.

By deed dated November 30, 1944, petitioners, who were found by the trial court to be Negroes, acquired title to the property and thereupon entered into its occupancy. On January 30, 1945, respondents, as owners of property subject to the terms of the restrictive agreement, brought suit against petitioners in the Circuit Court of Wayne County. After a hearing, the court entered a decree directing petitioners to move from the property within ninety days. Petitioners were further enjoined and restrained from using or occupying the premises in the future. On appeal, the Supreme Court of Michigan affirmed, deciding adversely to petitioners’ contentions that they had been denied rights protected by the Fourteenth Amendment.

Petitioners have placed primary reliance on their contentions, first raised in the state courts, that judicial enforcement of the restrictive agreements in these cases has violated rights guaranteed to petitioners by the Fourteenth Amendment of the Federal Constitution and Acts of Congress passed pursuant to that Amendment.[1] Specifically, petitioners urge that they have been denied the equal protection of the laws, deprived of property without due process of law, and have been denied privileges and immunities of citizens of the United States. We pass to a consideration of those issues.

I.

[1]

. . .

It is well, at the outset, to scrutinize the terms of the restrictive agreements involved in these cases. In the Missouri case, the covenant declares that no part of the affected property shall be “occupied by any person not of the Cau­casian race, it being intended hereby to restrict the use of said property . . . against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.” Not only does the restriction seek to proscribe use and occupancy of the affected properties by members of the excluded class, but as construed by the Missouri courts, the agreement requires that title of any person who uses his property in violation of the restriction shall be divested. The restriction of the covenant in the Michigan case seeks to bar occu­pancy by persons of the excluded class. It provides that “This property shall not be used or occupied by any person or persons except those of the Caucasian race.”

It should be observed that these covenants do not seek to proscribe any particular use of the affected properties. Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are di­rected toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; “simply that and nothing more.”

[2]

It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee. (Slaughter-House Cases, 16 Wall. 36, 70, 81 [1873]) Thus, § 1978 of the Revised Statutes, derived from § 1 of the Civil Rights Act of 1866 which was enacted by Congress while the Fourteenth Amendment was also under consideration, provides:

“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”

This Court has given specific recognition to the same principle. (Buchanan v. Warley. . .)

It is likewise clear that restrictions on the right of occupancy of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. In the case of Buchanan v. Warley, supra, a unanimous Court declared unconstitutional the provisions of a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons. During the course of the opinion in that case, this Court stated: “The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without state legislation discriminating against him solely because of color.”

In Harmon v. Tyler . . . , a unanimous court, on the authority of Buchanan v. Warley . . . declared invalid an ordinance which forbade any Negro to establish a home on any property in a white community or any white person to establish a home in a Negro community, “except on the written consent of a majority of the per­sons of the opposite race inhabiting such community or portion of the City to be affected.”

[3]

The precise question before this Court in both the Buchanan and Harmon cases involved the rights of white sellers to dispose of their properties free from restrictions as to potential purchasers based on considerations of race or color. But that such legislation is also offensive to the rights of those desiring to acquire and occupy property and barred on grounds of race or color is clear, not only from the language of the opinion in Buchanan v. Warley . . . but from this Court’s disposition of the case of Richmond v. Deans. . . . There, a Negro, barred from the occupancy of certain property by the terms of an ordinance similar to that in the Buchanan case, sought injunctive relief in the fed­eral courts to enjoin the enforcement of the ordinance on the grounds that its provisions violated the terms of the Four­teenth Amendment. Such relief was granted, and this Court affirmed, finding the citation of Buchanan v. Warley . . . and Harmon v. Tyler . . . sufficient to support its judgment.

But the present cases, unlike those just discussed, do not involve action by state legislatures or city councils. Here the particular patterns of discrimination and the areas in which the restrictions are to operate, are determined, in the first instance, by the terms of agreements among private individuals. Participation of the State consists in the en­forcement of the restrictions so defined. The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the Fourteenth Amendment.

[4]

Since the decision of this Court in the Civil Rights Cases, . . . the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.

We conclude, therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated. . . .

But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action; or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters.

II.

That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment, is a proposition which has long been established by decisions of this Court. . . .

III.

Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States; and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure.

We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.

These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private indi­viduals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made avail­able to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and non-enforcement of the restric­tive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing.

The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common-law policy of the States as formulated by those courts in earlier decisions. In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for want of the requisite number of signatures. In the Michigan case, the order of en­forcement by the trial court was affirmed by the highest state court. The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposi­tion that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state’s common-law policy. Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the ob­ligation of this Court to enforce the constitutional commands.

[6]

We hold that in granting judicial enforcement of the restrictive agreements in these cases, the States have denied peti­tioners the equal protection of the laws and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or color. (See Yick Wo v. Hopkins . . .) The Fourteenth Amendment declares “that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color.” (Strauder v. West Virginia). Only recently this Court had occasion to declare that a state law which denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry, was not a legitimate exercise of the state's police power but violated the guar­anty of the equal protection of the laws. (Oyama v. California) Nor may the discriminations im­posed by the state courts in these cases be justified as proper exertions of state police power. (Cf. Buchanan v. Warley)

[7]

Respondents urge, however, that since the state courts stand ready to enforce restrictive covenants excluding white per­sons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby af­fected.[2] This contention does not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from own­ership or occupancy of real property on grounds of race or color. But there are more fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.

[9]

Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal pro­tection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no in­dividual the right to demand action by the State which results in the denial of equal protection of the laws to other indi­viduals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment. (Cf. Marsh v. Alabama)

[10]

The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, and, since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State of­fends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare.

[11]

The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory ac­tion on the part of the States based on considerations of race or color. Seventy-five years ago this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. (Slaughter-House Cases, 16 Wall. 36, 81 [1873]) Upon full consideration, we have concluded that in these cases the States have acted to deny petitioners the equal protection of the laws guaran­teed by the Fourteenth Amendment. Having so decided, we find it unnecessary to consider whether petitioners have also been deprived of property without due process of law or denied privileges and immunities of citizens of the United States.

For the reasons stated, the judgment of the Supreme Court of Missouri and the judgment of the Supreme Court of Michigan must be reversed.

Reversed.

MR. JUSTICE REED, MR. JUSTICE JACKSON, and MR. JUSTICE RUTLEDGE took no part in the consideration or decision of these cases.

 



[1] The first section of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdic­tion thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with­out due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[2] It should be observed that the restrictions relating to residential occupancy contained in ordinances involved in the Buchanan, Harmon and Deans cases . . . and declared by this Court to be inconsistent with the requirements of the Fourteenth Amendment, applied equally to white persons and Negroes.

 

“Letter from a Birmingham Jail,” abridged

By Martin Luther King, Jr.

April 16, 1963.

[Martin Luther King, Jr. “Letter from a Birmingham Jail.” The First Version. 16 April 1963. LoveAllPeople.org. In the Public Domain.] 


 

Martin Luther King, Jr.

Birmingham City Jail

April 16, 1963

My dear Fellow Clergymen,

While confined here in the Birmingham City Jail, I came across your recent statement calling our present activities “unwise and untimely.” Seldom, if ever, do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would be engaged in little else in the course of the day and I would have no time for constructive work. But since I feel that you are men of genuine goodwill and your criticisms are sincerely set forth, I would like to answer your statement in what I hope will be patient and reasonable terms.

I think I should give the reason for my being in Birmingham, since you have been influenced by the argument of “outsiders coming in.” I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every Southern state with headquarters in Atlanta, Georgia. We have some eighty-five affiliate organizations all across the South—one being the Alabama Christian Movement for Human Rights. Whenever necessary and possible we share staff, educational, and financial resources with our affiliates. Several months ago our local affiliate here in Birmingham invited us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented and when the hour came we lived up to our promises. So I am here, along with several members of my staff, because we were invited here. I am here because I have basic organizational ties here. Beyond this, I am in Birmingham because injustice is here. Just as the eighth century prophets left their little villages and carried their “thus saith the Lord” far beyond the boundaries of their home town, and just as the Apostle Paul left his little village of Tarsus and carried the gospel of Jesus Christ to practically every hamlet and city of the Graeco-Roman world, I too am compelled to carry the gospel of freedom beyond my particular home town. Like Paul, I must constantly respond to the Macedonian call for aid.

. . .

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: There are just laws and there are unjust laws. I would be the first to advocate obeying just laws. One has not only a legal but moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with Saint Augustine that “An unjust law is no law at all.”

Now what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. To use the words of Martin Buber, the great Jewish philosopher, segregation substitutes an “I-it” relationship for an “I-thou” relationship, and ends up relegating persons to the status of things. So segregation is not only politically, economically, and sociologically unsound, but it is morally wrong and sinful. Paul Tillich has said that sin is separation. Isn’t segregation an existential expression of man’s tragic separation, an expression of his awful estrangement, his terrible sinfulness? So I can urge men to obey the 1954 decision of the Supreme Court because it is morally right, and I can urge them to disobey segregation ordinances because they are morally wrong.

Let us turn to a more concrete example of just and unjust laws. An unjust law is a code that a majority inflicts on a minority that is not binding on itself. This is difference made legal. On the other hand a just law is a code that a majority compels a minority to follow that it is willing to follow itself. This is sameness made legal.

Let me give another explanation. An unjust law is a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote. Who can say that the legislature of Alabama which set up the segregation laws was democratically elected? Throughout the state of Alabama all types of conniving methods are used to prevent Negroes from becoming registered voters and there are some counties without a single Negro registered to vote despite the fact that the Negro constitutes a majority of the population. Can any law set up in such a state be considered democratically structured?

These are just a few examples of unjust and just laws. There are some instances when a law is just on its face but unjust in its application. For instance, I was arrested Friday on a charge of parading without a permit. Now there is nothing wrong with an ordinance which requires a permit for a parade, but when the ordinance is used to preserve segregation and to deny citizens the First Amendment privilege of peaceful assembly and peaceful protest, then it becomes unjust.

I hope you can see the distinction I am trying to point out. In no sense do I advocate evading or defying the law as the rabid segregationist would do. This would lead to anarchy. One who breaks an unjust law must do it openly, lovingly (not hatefully as the white mothers did in New Orleans when they were seen on television screaming “nigger, nigger, nigger”) and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustice, is in reality expressing the very highest respect for law.

Of course there is nothing new about this kind of civil disobedience. It was seen sublimely in the refusal of Shadrach, Meshach, and Abednego to obey the laws of Nebuchadnezzar because a higher moral law was involved. It was practiced superbly by the early Christians who were willing to face hungry lions and the excruciating pain of chopping blocks, before submitting to certain unjust laws of the Roman Empire. To a degree academic freedom is a reality today because Socrates practiced civil disobedience.

We can never forget that everything Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. But I am sure that, if I had lived in Germany during that time, I would have aided and comforted my Jewish brothers even though it was illegal. If I lived in a communist country today where certain principles dear to the Christian faith are suppressed, I believe I would openly advocate disobeying these anti-religious laws.

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the last few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negroes’ great stumbling block in the stride toward freedom is not the White Citizen’s “Counciler” or the Ku Klux Klanner, but the white moderate who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says “I agree with you in the goal you seek, but I can’t agree with your methods of direct action”; who paternalistically feels that he can set the timetable for another man’s freedom; who lives by the myth of time and who constantly advises the Negro to wait until a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice, and that when they fail to do this they become dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is merely a necessary phase of the transition from an obnoxious negative peace, where the Negro passively accepted his unjust plight, to a substance-filled positive peace, where all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open where it can be seen and dealt with. Like a boil that can never be cured as long as it is covered up but must be opened with all its pus-flowing ugliness to the natural medicines of air and light, injustice must likewise be exposed, with all of the tension its exposing creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you asserted that our actions, even though peaceful, must be condemned because they precipitate violence. But can this assertion be logically made? Isn’t this like condemning the robbed man because his possession of money precipitated the evil act of robbery? Isn’t this like condemning Socrates because his unswerving commitment to truth and his philosophical delvings precipitated the misguided popular mind to make him drink the hemlock? Isn’t this like condemning Jesus because His unique God consciousness and never-ceasing devotion to His will precipitated the evil act of crucifixion? We must come to see, as federal courts have consistently affirmed, that it is immoral to urge an individual to withdraw his efforts to gain his basic constitutional rights because the quest precipitates violence. Society must protect the robbed and punish the robber.

I had also hoped that the white moderate would reject the myth of time. I received a letter this morning from a white brother in Texas which said: “All Christians know that the colored people will receive equal rights eventually, but is it possible that you are in too great of a religious hurry? It has taken Christianity almost 2,000 years to accomplish what it has. The teachings of Christ take time to come to earth.” All that is said here grows out of a tragic misconception of time. It is the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually time is neutral. It can be used either destructively or constructively. I am coming to feel that the people of ill will have used time much more effectively than the people of good will. We will have to repent in this generation not merely for the vitriolic words and actions of the bad people, but for the appalling silence of the good people. We must come to see that human progress never rolls in on wheels of inevitability. It comes through the tireless efforts and persistent work of men willing to be co-workers with God, and without this hard work time itself becomes an ally of the forces of social stagnation.

We must use time creatively, and forever realize that the time is always ripe to do right. Now is the time to make real the promise of democracy, and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

You spoke of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of the extremist. I started thinking about the fact that I stand in the middle of two opposing forces in the Negro community. One is a force of complacency made up of Negroes who, as a result of long years of oppression, have been so completely drained of self-respect and a sense of “somebodiness” that they have adjusted to segregation, and of a few Negroes in the middle class who, because of a degree of academic and economic security, and because at points they profit by segregation, have unconsciously become insensitive to the problems of the masses. The other force is one of bitterness and hatred and comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up over the nation, the largest and best known being Elijah Muhammad’s Muslim movement. This movement is nourished by the contemporary frustration over the continued existence of racial discrimination. It is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incurable “devil.” I have tried to stand between these two forces saying that we need not follow the “do-nothingism” of the complacent or the hatred and despair of the black nationalist. There is the more excellent way of love and nonviolent protest. I’m grateful to God that, through the Negro church, the dimension of nonviolence entered our struggle. If this philosophy had not emerged I am convinced that by now many streets of the South would be flowing with floods of blood. And I am further convinced that if our white brothers dismiss us as “rabble rousers” and “outside agitators”—those of us who are working through the channels of nonviolent direct action—and refuse to support our nonviolent efforts, millions of Negroes, out of frustration and despair, will seek solace and security in black-nationalist ideologies, a development that will lead inevitably to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The urge for freedom will eventually come. This is what has happened to the American Negro. Something within has reminded him of his birthright of freedom; something without has reminded him that he can gain it. Consciously and unconsciously, he has been swept in by what the Germans call the Zeitgeist, and with his black brothers of Africa, and his brown and yellow brothers of Asia, South America, and the Caribbean, he is moving with a sense of cosmic urgency toward the promised land of racial justice. Recognizing this vital urge that has engulfed the Negro community, one should readily understand public demonstrations. The Negro has many pent-up resentments and latent frustrations. He has to get them out. So let him march sometime; let him have his prayer pilgrimages to the city hall; understand why he must have sit-ins and freedom rides. If his repressed emotions do not come out in these nonviolent ways, they will come out in ominous expressions of violence. This is not a threat; it is a fact of history. So I have not said to my people, “Get rid of your discontent.” But I have tried to say that this normal and healthy discontent can be channeled through the creative outlet of nonviolent direct action. Now this approach is being dismissed as extremist. I must admit that I was initially disappointed in being so categorized.

But as I continued to think about the matter I gradually gained a bit of satisfaction from being considered an extremist. Was not Jesus an extremist in love? “Love your enemies, bless them that curse you, pray for them that despitefully use you.” Was not Amos an extremist for justice—“Let justice roll down like waters and righteousness like a mighty stream.” Was not Paul an extremist for the gospel of Jesus Christ—“I bear in my body the marks of the Lord Jesus.” Was not Martin Luther an extremist—“Here I stand; I can do none other so help me God.” Was not John Bunyan an extremist—“I will stay in jail to the end of my days before I make a butchery of my conscience.” Was not Abraham Lincoln an extremist—“This nation cannot survive half slave and half free.” Was not Thomas Jefferson an extremist—“We hold these truths to be self-evident, that all men are created equal.” So the question is not whether we will be extremist but what kind of extremist will we be. Will we be extremists for hate or will we be extremists for love? Will we be extremists for the preservation of injustice—or will we be extremists for the cause of justice? In that dramatic scene on Calvary’s hill three men were crucified. We must never forget that all three were crucified for the same crime—the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth, and goodness, and thereby rose above His environment. So, after all, maybe the South, the nation, and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this. Maybe I was too optimistic. Maybe I expected too much. I guess I should have realized that few members of a race that has oppressed another race can understand or appreciate the deep groans and passionate yearnings of those that have been oppressed, and still fewer have the vision to see that injustice must be rooted out by strong, persistent, and determined action. I am thankful, however, that some of our white brothers have grasped the meaning of this social revolution and committed themselves to it. They are still all too small in quantity, but they are big in quality. Some like Ralph McGill, Lillian Smith, Harry Golden, and James Dabbs have written about our struggle in eloquent, prophetic, and understanding terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach-infested jails, suffering the abuse and brutality of angry policemen who see them as “dirty nigger lovers.” They, unlike so many of their moderate brothers and sisters, have recognized the urgency of the moment and sensed the need for powerful “action” antidotes to combat the disease of segregation.

Let me rush on to mention my other disappointment. I have been so greatly disappointed with the white Church and its leadership. Of course there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Rev. Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a non-segregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions I must honestly reiterate that I have been disappointed with the Church. I do not say that as one of those negative critics who can always find something wrong with the Church. I say it as a minister of the gospel, who loves the Church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

I had the strange feeling when I was suddenly catapulted into the leadership of the bus protest in Montgomery several years ago that we would have the support of the white Church. I felt that the white ministers, priests, and rabbis of the South would be some of our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of the stained glass windows.

In spite of my shattered dreams of the past, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and with deep moral concern, serve as the channel through which our just grievances could get to the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous religious leaders of the South call upon their worshippers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers say follow this decree because integration is morally right and the Negro is your brother. In the midst of blatant injustices inflicted upon the Negro, I have watched white churches stand on the sideline and merely mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard so many ministers say, “Those are social issues with which the gospel has no real concern,” and I have watched so many churches commit themselves to a completely other-worldly religion which made a strange, un-biblical distinction between body and soul, the sacred and the secular.

. . .

I hope the Church as a whole will meet the challenge of this decisive hour. But even if the Church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are presently misunderstood. We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with the destiny of America. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched across the pages of history the majestic words of the Declaration of Independence, we were here. For more than two centuries our foreparents labored in this country without wages; they made cotton “king”; and they built the homes of their masters in the midst of brutal injustice and shameful humiliation—and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands.

. . .

I must close now. But before closing I am impelled to mention one other point in your statement that troubled me profoundly. You warmly commend the Birmingham police force for keeping “order” and “preventing violence.” I don’t believe you would have so warmly commended the police force if you had seen its angry violent dogs literally biting six unarmed, nonviolent Negroes. I don’t believe you would so quickly commend the policemen if you would observe their ugly and inhuman treatment of Negroes here in the city jail; if you would watch them push and curse old Negro women and young Negro girls; if you would see them slap and kick old Negro men and young Negro boys; if you will observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I’m sorry that I can’t join you in your praise for the police department.

It is true that they have been rather disciplined in their public handling of the demonstrators. In this sense they have been rather publicly “nonviolent.” But for what purpose? To preserve the evil system of segregation. Over the last few years I have consistently preached that nonviolence demands the means we use must be as pure as the ends we seek. So I have tried to make it clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong or even more so to use moral means to preserve immoral ends. Maybe Mr. Connor and his policemen have been rather publicly nonviolent, as Chief Pritchett was in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of flagrant injustice. T. S. Eliot has said that there is no greater treason than to do the right deed for the wrong reason.

I wish you had commended the Negro sit-inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer, and their amazing discipline in the midst of the most inhuman provocation. One day the South will recognize its real heroes. They will be the James Merediths, courageously and with a majestic sense of purpose, facing jeering and hostile mobs and the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy-two year old woman of Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride the segregated buses, and responded to one who inquired about her tiredness with ungrammatical profundity: “My feets is tired, but my soul is rested.” They will be the young high school and college students, young ministers of the gospel and a host of their elders courageously and nonviolently sitting-in at lunch counters and willingly going to jail for conscience sake. One day the South will know that when these disinherited children of God sat down at lunch counters they were in reality standing up for the best in the American dream and the most sacred values in our Judaeo-Christian heritage, and thus carrying our whole nation back to great wells of democracy which were dug deep by the founding fathers in the formulation of the Constitution and the Declaration of Independence.

Never before have I written a letter this long (or should I say a book?). I’m afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else is there to do when you are alone for days in the dull monotony of a narrow jail cell other than write long letters, think strange thoughts, and pray long prayers?

If I have said anything in this letter that is an overstatement of the truth and is indicative of an unreasonable impatience, I beg you to forgive me. If I have said anything in this letter that is an understatement of the truth and is indicative of my having a patience that makes me patient with anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil rights leader, but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear-drenched communities and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of
Peace and Brotherhood,


Martin Luther King, Jr.

Loving v. Virginia, abridged

By The Supreme Court of the United States of America

April 10, 1967, Argued

June 12, 1967, Decided

[The Supreme Court of the United States of America. Loving et Ux. v. Virginia. 388 U.S. 1. 1967. In the Public Domain.]


 

. . .

JUDGES: Warren, Black, Douglas, Clark, Harlan, Brennan, Stewart, White, Fortas

OPINION BY: WARREN OPINION

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifica­tions violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.[1] For reasons which seem to us to reflect the central meaning of those constitutional commands, we conclude that these statutes can­not stand consistently with the Fourteenth Amendment.

In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Vir­ginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; how­ever, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. He stated in an opinion that:

“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment. The motion not having been decided by October 28, 1964, the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia re­questing that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. On January 22, 1965, the state trial judge denied the motion to vacate the sentences, and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. On February 11, 1965, the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court.

The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and, after modifying the sentence, affirmed the convictions. The Lovings appealed this decision. . . .

The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. The Lovings were convicted of violating § 20-58 of the Vir­ginia Code:

“Leaving State to evade law.—If any white person and colored person shall go out of this State, for the purpose of be­ing married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, co­habiting as man and wife, they shall be punished as provided in § 20-59, and the marriage shall be governed by the same law as if it had been solemnized in this State. The fact of their cohabitation here as man and wife shall be evi­dence of their marriage.”

Section 20-59, which defines the penalty for miscegenation, provides:

“Punishment for marriage.—If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”

Other central provisions in the Virginia statutory scheme are § 20-57, which automatically voids all mar­riages between “a white person and a colored person” without any judicial proceeding,[2] and §§ 20-54 and 1-14 which, respectively, define “white persons” and “colored persons and Indians” for purposes of the statutory prohibitions. The Lovings have never disputed in the course of this litigation that Mrs. Loving is a “colored person” or that Mr. Lov­ing is a “white person” within the meanings given those terms by the Virginia statutes.

. . .

Section 1-14 of the Virginia Code provides:

. . .

Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. Pen­alties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924, passed during the period of extreme nativism which followed the end of the First World War. The central features of this Act, and current Virginia law, are the absolute prohibition of a “white person” marrying other than another “white person,” a prohibition against issuing marriage licenses until the issuing official is satisfied that the applicants’ statements as to their race are correct, certificates of “racial composition” to be kept by both local and state registrars, and the carrying forward of earlier prohibitions against racial intermarriage.

Over the past 15 years, 14 States have repealed laws outlawing interracial marriages: Arizona, California, Colorado, Idaho, Indiana, Mary­land, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming.

The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California. . . .

I.

In upholding the constitutionality of these provisions in the decision below, the Supreme Court of Appeals of Virginia referred to its 1955 decision in Naim v. Naim . . . as stating the reasons supporting the validity of these laws. In Naim, the state court concluded that the State's legitimate purposes were “to preserve the racial integ­rity of its citizens,” and to prevent “the corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of ra­cial pride,” obviously an endorsement of the doctrine of White Supremacy. . . . The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention, and, conse­quently, the regulation of marriage should be left to exclusive state control by the Tenth Amendment.

While the state court is no doubt correct in asserting that marriage is a social relation subject to the State’s police power, . . . the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment. Nor could it do so in light of Meyer v. Nebraska . . . and Skinner v. Oklahoma. . . . Instead, the State argues that the meaning of the Equal Protection Clause, as illuminated by the statements of the Framers, is only that state penal laws containing an interracial element as part of the definition of the offense must ap­ply equally to whites and Negroes in the sense that members of each race are punished to the same degree. Thus, the State contends that, because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage, these statutes, despite their reliance on racial classifications, do not constitute an invidious dis­crimination based upon race. The second argument advanced by the State assumes the validity of its equal application theory. The argument is that, if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages. On this question, the State argues, the scientific evidence is substantially in doubt and, consequently, this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.

Because we reject the notion that the mere “equal application” of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment’s proscription of all in­vidious racial discriminations, we do not accept the State’s contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks in New York City, . . . or an exemption in Ohio’s ad valorem tax for merchandise owned by a nonresident in a storage warehouse. . . . In these cases, involving distinctions not drawn according to race, the Court has merely asked whether there is any rational foundation for the discriminations, and has deferred to the wis­dom of the state legislatures. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.

The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state misce­genation laws. Many of the statements alluded to by the State concern the debates over the Freedmen’s Bureau Bill, which President Johnson vetoed, and the Civil Rights Act of 1866, 14 Stat. 27, enacted over his veto. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment, it must be un­derstood that they pertained to the passage of specific statutes and not to the broader, organic purpose of a constitutional amendment. As for the various statements directly concerning the Fourteenth Amendment, we have said in connection with a related problem, that although these historical sources “cast some light” they are not sufficient to resolve the problem; “[at] best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly in­tended them to remove all legal distinctions among ‘all persons born or naturalized in the United States.’ Their oppo­nents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect.” (Brown v. Board of Education) We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State, that the re­quirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. (McLaughlin v. Florida)

The State finds support for its “equal application” theory in the decision of the Court in Pace v. Alabama. . . .  In that case, the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. However, as recently as the 1964 Term, in rejecting the reasoning of that case, we stated “Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court.” . . . As we there demonstrated, the Equal Protection Clause requires the con­sideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. (Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virginia . . . ; Shelley v. Kraemer . . . .)

There can be no question but that Virginia’s miscegenation statutes rest solely upon distinctions drawn according to race. The statutes proscribe generally accepted conduct if engaged in by members of different races. Over the years, this Court has consistently repudiated “distinctions between citizens solely because of their ancestry” as being “odious to a free people whose institutions are founded upon the doctrine of equal­ity.” (Hirabayashi v. United States) . . . At the very least, the Equal Protection Clause de­mands that racial classifications, especially suspect in criminal statutes, be subjected to the “most rigid scrutiny,” (Korematsu v. United States . . .) and, if they are ever to be upheld, they must be shown to be neces­sary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. Indeed, two members of this Court have already stated that they “cannot conceive of a valid legislative purpose . . . which makes the color of a person’s skin the test of whether his con­duct is a criminal offense.” (McLaughlin v. Florida, . . . [STEWART, J., joined by DOUGLAS, J., concur­ring]).

There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.[3]  We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.

II.

These statutes also deprive the Lovings of liberty without due process of law in viola­tion of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. 

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. (Skinner v. Oklahoma. . . .  See also Maynard v. Hill. . . .) To deny this fundamental freedom on so unsupportable a basis as the racial classifi­cations embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.

These convictions must be reversed.

It is so ordered.

 

CONCUR BY: STEWART

MR. JUSTICE STEWART, concurring.

I have previously expressed the belief that “it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” (McLaughlin v. Florida . . .). Because I adhere to that belief, I concur in the judgment of the Court.

 



NOTES

 

[1]   Section 1 of the Fourteenth Amendment provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

[2]   Section 20-57 of the Virginia Code provides: “Marriages void without decree.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process.” Va. Code Ann. § 20-57 (1960 Repl. Vol.).

[3]   Appellants point out that the State's concern in these statutes, as expressed in the words of the 1924 Act’s title, “An Act to Preserve Racial Integrity,” extends only to the integrity of the white race. While Virginia prohibits whites from marrying any nonwhite (subject to the excep­tion for the descendants of Pocahontas), Negroes, Orientals, and any other racial class may intermarry without statutory interference. Appel­lants contend that this distinction renders Virginia’s miscegenation statutes arbitrary and unreasonable even assuming the constitutional va­lidity of an official purpose to preserve “racial integrity.” We need not reach this contention because we find the racial classifications in these statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the “integrity” of all races.

 

THE TRUTH ABOUT CITIZENSHIP: An Outline[*]

by

W.B. Allen

James Madison College Michigan State University 


Citizenship belongs not to nations but to human beings. Tribes, peoples, and nations may have members, but only regimes founded in universal principles can properly have citizens. The original British constitution wisely denominated all other political relationships as the relations between subjects and sovereigns—subjects, precisely because the persons comprehended in the description owe a loyalty and belong to their states in a condition of subjection (relations not based on consent) rather than command. The paradox of citizenship properly so called is that it cannot occur universally, is rather realizable only in particular, exclusive instantiations, and nev­ertheless addresses the end of every human being.

Many of the actors in Eastern Europe in the last very few years have encountered this very paradox, discovering that citizenship is not an intuitive phenomenon. Martin Palous[1] ob­served that the legal definition of citizenship is far from sufficient because it does not address perhaps the most important aspect of this problem: citizenship cannot be reduced either to a legal formula or to a factual description of its implementation under given historical and political cir­cumstances. The reason, he maintained, is that citizenship has its "subjective dimension" as well. It appears that, in some decisive fashion, the good polity hinges very much on the question of how to bring about the good polites. Interestingly enough, however, at the founding of the United States, the emphasis was reversed, most notably by George Washington, who emphasized the question of the effect of the citizen on the polity over the question of the polity's effect upon the citizen. The reason for that, I believe, was his conviction that the foundation of a good polity was the preference for justice over patriotism for souls forced to choose. Washington, I think, was correct; it is rather justice that vindicates patriotism than patriotism which produces justice.

Foundations of Citizenship

A reader may justifiably seek some account of the departure from widely held, prior con­ceptions of citizenship, especially that of ancient Athens (the polites, the citizen as participant in ruling and being ruled in turn), monarchical Britain (essentially that of allegiance to a particular monarch legally defined in Calvin's Case[2] and since defended in R. v. Joyce)[3], and, more loosely, certain current views called "communitarian."

Following upon modern efforts to found political society in individual will, experience proved a mutual nolo nocere commitment insufficient. The formal acknowledgment of a con­tinuing right of revolution in the Declaration of Independence derives from this recognition. The contract to avoid force and fraud may be expedient in a limited sphere, but it is not generative. It does not derive a table of obligations with sufficient force to sustain a society and, more particu­larly, to tie one generation to another. Religion, of course, offers a formula which is strongly generative, universal in its principles,[4] and also restrains force and fraud. What religion fails to do, however, is to ground public authority sufficiently to replace warfare as a means of constitu­tional change. The challenge of modern sovereignty, therefore, was to attain the expediency of the nolo nocere commitment, the strength of religious foundation, and, at the same time, to regu­larize constitutional change as an expression of lawful procedure.

In seeking the substantial meaning of citizenship, it is more important initially to identify the agency by which—the efficient cause through which—citizenship comes to be than it is to identify the end of citizenship. The reason for this pre-Kantian scruple is that the question of citizenship derives from considerations of the end of man—the individual, general rather than local concerns—and at a minimum individual will must be positively accounted for or overcome in any theory of citizenship agency which does not repose in the agency of the individual. The will of the community or the goals of the whole can have no pre-creation trumping power. This is the decisive meaning of the Phoenician tale, the noble lie in Plato's Republic. Apart from a comprehensive account of individual will, every polity of any sort must cover with a lie or myth a large gap in its story of itself.

An example of this may be located in pre-revolution American society, as colonialists in Massachusetts early detached themselves from the idea of subjection central to English citizen­ship. The case of Robert Child is, precisely, a lesson in the limitations of pre-modern sover­eignty. The 1646 Remonstrance and Petition of Robert Child, and Others,[5] sought redress of injuries they thought they suffered as Englishmen at the hands of the General Court of Massa­chusetts. The dispute arose over the notion that all the King's subjects (the King-in-Parliament, that is) had the right to exercise citizenship in the colony on grounds harmonious with the exer­cise of rights in England. The petitioners, however, found that they

cannot, according to our judgments, discern a setled forme of government according to the lawes of England, which may seem strange to our countrymen, yea to the whole world, especially considering we are all English. Neither do we understand and perceive our own laws or liberties, or any body of laws here so established, as that thereby there may be a sure and comfortable enjoyment of our lives, liberties, and estates, according to our due and natural rights, as freeborne subjects of the English nation. . .

. . . Neither can we tell whether the Lord hath blest many in these parts with such emi­nent political gifts, so as to contrive better laws and customs than the wisest of our nation have with great consideration composed, and by many hundred yeares of experience have found most equal and just; which have procured to the nation much honour and renowne among strangers, and long peace and tranquility amongst themselves.[6]

Quite early, then, the Americans were suspected, if not suspect. They were viewed as setting their judgment against the weight of tradition, even at the risk of endangering the secure and comfortable enjoyment of the natural rights to life, liberty, and estate. Well before the im­pact of Hobbes, Locke, Montesquieu, in a word, the full impact of European (including Scottish) Enlightenment, and English republicanism, the terms of constitutional debate were set in Massa­chusetts. However, there was one significant exception, involving the question of ultimate sov­ereignty: Who shall have the last word? The General Court, in its reply to Robert Child, ac­knowledged his complaint about the civil incapacitation resulting from the practice of inappropriate religions and also the Court's refusal to support a bishop in the "true church."[7] They even pointed with pride to their indulgence of the founders of Rhode Island, who were al­lowed to emigrate there and to undergo the "natural corruption" to which such "liberty and equality" were known to be subject.[8]

In Boston, though, the General Court held fast for breaking its barbarians by "the ordi­nary means of instruction," as a precondition for the civil and ecclesiastical "peace and prosper­ity" to which all aspired. This firm stand followed a lengthy review of the petitioners' argu­ments about the civil constitution, in which the General Court distinguished itself by considering the constitutional question seriously. The review has two parts. In the first, it arrays the peti­tioners' arguments against themselves. From this, the General Court concludes that their "mani­fest contradictions" have overthrown their case, in light of which "we might have throwne out theire petition, as not worthie of our further trouble . . "[9] Yet the General Court continued on to address the grievances brought forth in the Remonstrace.

We will therefore, for the petitioners' more cleare conviction, and further satisfaction to all the world, examine their particular grievances, and other passages which we meete with in their remonstrance, &c. and give such account of our government and admini­strations both civil and ecclesiastical, as none shall be able (we hope) to contradict the truth thereof.[10] 

This unprecedented and magnanimous appeal to reason—exceeding even the Declaration of In dependence's faith in a "candid world"—then sets forth the Court's claim to a "settled govern ment."

The General Court claimed affinity with the fundamental laws of England ("taking the words of eternal truth and righteousness along with them as that rule by which all kingdoms . . . must render account"),[11] but exemption from patterning their "positive lawes" after England's due to differing necessities. Next it proceeded to set forth in parallel columns, article by article, the fundamental laws of England (collected from Magna Charta and the Common Law) and the "Fundamentals of the Massachusetts" (collected from the "Body of Liberties," the Charter, and custom). Throughout this production the Court sustain its case that their government closely resembled that of England. Nevertheless, it clearly affirmed an independent authority.

The important exception emerged at that point. The Massachusetts General Court reached in 1646 what Locke was to declare in 1680: the affirmation of legislative supremacy. The first article under the "common law" column reads: "[T]he supreme authorities is [sic] in the high court of parliament."[12] This anticipation of the Settlement of 1688 would not so neces­sarily offend Robert Child (for whom the monarch remained head of the church) as the parallel column under the "Fundamentals of Massachusetts:"[13] "The highest authorities here is [sic] in the General Court, both by our charter, and by our own positive lawes."[14] In reading this, we are torn two ways. We wish to know if already by 1646 some really did wish to exclude parliamen­tary authority over internal matters in the colonies. However, finding an indigenous precursor to Locke is significant simply because it shows that the one Lockeian difficulty which the Ameri­cans had to overcome was the same considered by the General Court, the supremacy of the rep­resentative legislature.

The story of the American Revolution begins with the story of the derailing of the Eng­lish Revolution, which Montesquieu described as

A lovely enough spectacle in the past century, to see the impotent efforts of the English to establish democracy among themselves . . . since the spirit of one faction was re­pressed only by the spirit of another, the government changed ceaselessly. The aston­ished people searched for democracy but found it nowhere. Finally, after many move­ments, shocks, and shake-ups, it even became necessary to settle on the government which they had proscribed.[15]

The Restoration was rather the result of the derailing than a derailing of itself. The true derailing takes expression in a 1649 Act of Parliament,[16] which declared Parliament to be the "supreme authority of this nation."[17] And no one, Roundheads, Levellers, Diggers, or even the Lord Protector, could ever arrive at a suitable formula whereby the people might supplant the Parliament without the utter destruction of order and government. All believed stable govern­ment depended on what Madison later called "a will independent of the society," the pre-modern form of sovereignty and also, incidentally, the institutional foundation of tyranny. Even after the second Revolution in 1688[18] this fundamental tenet remained the sticking point of British repub­licanism, ultimately codified as permanent principle by Blackstone on the very eve of the singu­lar American advance beyond this dilemma.[19]

There is a connection between legislative supremacy and the General Court's express de­termination to man the barrier to vice, which is not apparent in Locke's version. The form of government depends upon the placing of supreme power, which is the legislative. The people appoint the form of government by establishing the legislature and appointing its members. So­ciety holds the supreme power, not in any form of government, but only in the absence or disso­lution of government, and in society under government all powers must derive from and be sub­ordinate to the legislature.[20] Locke's argument in Locke is the basis for Blackstone's assertion that the British Parliament has permanent and necessary custody of the British constitution.[21] In substance that is the same argument the General Court relied upon to persuade Robert Child that it must exercise caution in admitting persons to citizenship in the colony and, most importantly, to membership in the church.

Locke's argument seems to concern itself only with the form of government. In fact, Locke claims that the only joint action the people are capable of is to constitute the society, and society's preservation requires a superintending will independent of it. While he admits the right of revolution (as an unavoidable deduction), he excludes the possibility that every man can be left to liberty of conscience in his civil obligations. Thus, Locke leaves work for the public to assign and order men's civil obligations whether aimed at virtue or no. His reasoning seems to correspond with the General Court's rejection of such liberty. Where the Court found natural corruption and dissension, Locke found the state of war.

To launch modern sovereignty, Americans had to contend at once with a legacy of pride in superior institutions and the unresolved problem of how to entrust to human beings, who were thought to need public formation toward virtue, a conceded right to be governed not just in founding a society but at all times by their own consent. Obviously, virtue's claims to public authority had somehow to be relaxed at the same time as the aim of virtue—self-government— had to be reinforced. It will immediately appear that virtue's claim to rule does not automati­cally transfer into a title on the part of those civil authorities approved by the church or other in­terpreters of virtue (hence, the need for the Phoenician tale). Indeed, one may see that depend­ence on consent is partially generated by genuine skepticism as to the rightful priests of virtue. The highway to government by consent—modern sovereignty—passes by way of the recognition that virtue, to rule at all, must be left to fend for itself (rather than armed with state power). Every other arrangement enslaves or subordinates virtue to some one superstition or another.[22] The foregoing example, coupled with philosophical analysis of its relevance, clarifies modern sovereignty in the sense of removing concern with consent—or individual agency—as mainly a question of efficiency. The first question is how to generate a good polity. Success in doing so only can lend scope to the important but secondary question: What sustains a good pol­ity? If the question of citizenship belongs rather to the first or primary question, rather than to the secondary question, it will follow that reasonings premised on a putative incompatibility be­tween individual agency and community stability do not in fact respond to the requirements of the argument. Before one can require responsibility of citizens, one must invent citizens.

Is Every Human an American?

James Madison successfully navigated an analogous difficulty.[23] He recognized that lib­erty would breed poisons potentially fatal to popular government. However, he also recognized that liberty was a sine qua non of the good polity. The argument required a demonstration of methods to mitigate the harmful effects of liberty rather than argument designed to challenge the authority of liberty. The position of modern sovereignty is analagous to the position of liberty according to Madison.[24] The universal principle on which it stands is palpable to every human being and is perfected in the design of the United States. It will perhaps serve the purpose of this expose, therefore, if we respond to the question: Why is it that the idea of United States citizen­ship, without regard to community or national origins, is intuitive to human beings around the world?

The answer, I believe, is that American citizenship is defined strictly in terms of those human characteristics and circumstances that manifestly apply to all human beings. Because those terms, as suggested in the Declaration of Independence, invoke human interests and ambi­tions as the basis of membership in a good polity, it follows that wherever persons hope for the fulfillments to which their individual interests and ambitions inspire, they will naturally regard themselves as capable of American citizenship. This premise is the novus ordo seclorum, a world in which men can imagine "marrying themselves abroad" without conceiving that to do so entails abandoning their dearest attachments. When Aristotle identified intermarriage as the fun­damental condition for unity in the polis, he pointed beyond the immediate relationships among individuals to the realms of human imagination. In that realm what counts is the good that one can imagine for oneself. Whatever offers that prospect becomes automatically the standard of decency and fulfillment.

By holding out such a promise the United States and every similarly constituted republic makes a commitment beyond the limits of its own territory. That commitment is to recognize and reward to the extent practicable the aspirations of human beings who find in this promise cause for virtuous exertion. It is that condition of modernity which chiefly distinguishes it from the ancient world. One recalls Juba patterning himself upon the noble Cato.[25] It might be thought that Juba wished to be a Roman; in fact, he wished only to be supremely human. What is new is the ability persons now have to draw such inspiration from the idea of citizenship in a free republic. It is a paradox of considerable complexity that what is held out to every human being willy-nilly can still hold forth the prospect of excellence. There are many thoughtful crit­ics who deny such a possibility a priori. They do so , in my view, in ignorance of the precise character of modern citizenship, which hinges on affirmation of the people's capacity for rule despite long-standing doubts on that score.

Is Every American Merely Human?

A system of rule which makes no further distinctions among men than their raw num-bers—which is modern democracy—could not fail to expose a people to the influence of folly in their affairs. As Henry Neville said, this was taught by "great artists ancient and modern."[26] The traditions of British-American republicanism[27] remained influenced by that teaching from Neville up to the very eve of the American founding. A sea-change in opinion brought Ameri­cans to doubt that there was any acceptable alternative to risking dangers of folly in the Com­monwealth. The problem was how to build a decent republican life out of ordinary humanity. The labyrinthine trail of pre-Revolutionary opinions is easily traceable to England, Europe, and antiquity precisely because the American problem was the age's quintessential political problem. Solutions discussed, far reaching as they were, were always the old solutions. The most charac­teristic of them, the mixed regime solution, from Plato-Aristotle to Isaac Pennington and beyond, was a firm belief in the necessity for a constitutionally imposed and balancing hierarchy of souls in the Commonwealth. The solution accomplished two purposes. First, it restrained the violence of conflicts between the elite and the masses; second, it prostrated folly to the influence of sub­stance and experienced judgment. It did so, however, only at the cost of keeping the constitution at arms length distance from the people, subjecting them to superior titles to rule—the solution of pre-modern sovereignty.

So long as any mixed regime persisted, representatives of the varying estates (or classes or nations) actually represented not the body politic, but their respective warring "cities," be­tween or among whom an uneasy truce was enforced in the guise of a civil constitution. The many have always seemed not merely unfit but unable to rule. To say that the many are unable to rule is to emphasize the rule of folly wherever they prevail. Moreover, it suggests that they fail to attain either the good or the objective at which they aim, due to their incapacity. All justi­fications for their subjection to superior authorities, therefore, derive from the claim that the masses are better served by the institution of unrestrained sovereign powers. However, the de­gree to which rulers are free of the influence and authority of folly is equivalent to the extent to which they may abuse their powers. The recognition of this problem produces the interest in finding ways to constrain the rulers to the pursuit of the common good.

This scenario formed the context in which the doctrine of Non tallagio non concedendo (as well as that of religious toleration) came to express a deep and abiding distrust not just of rul­ers but of regimes (especially the nation-state) themselves. The very end of politics began to seem impossible to attain. The escape from this paradox (occasioned by long and detailed re­flections on political order) produced the move by the American founders which affirmed that it were not sufficient for the people to be thought to rule; they actually had to prevail, through the majority, in governing. Moreover, no authority able to act on its own, apart from dependence on the people, could be expected to adopt liberty as the objective of its government. Therefore, there could be no "will independent of the society." Such stringent concerns as these led to the radical formulation that no just polity could be formed except on the broadest foundations of human participation and on terms which foreclosed the political primacy of traditional terms of human identification. This conclusion meant following Aristotle's dictum regarding intermar­riage with a vengeance. Mere humanity, raw individuality would constitute the basis for all claims to citizenship.

The Ancien Régime

The broadest claim to citizenship in the ancient city was that of "good birth." At a mini­mum, therefore, one had to be born into citizenship and in that sense it was not distinguished from that of the most isolated tribe even today. True, at best, the ancient city offered something more valuable than tribal society. It made membership in the political community a gateway to the human good. Nevertheless, its organization and its moral claim rested decidedly on grounds of nativity.

It must be remembered that there was no formal concept of citizenship in the ancient polis. This ancient citizenship, the polites, would be better translated "participant in the polis." Not all could participate; in the best case only the well-born could. Still, the polites as a model of participation was a great advance over mere tribal society. Thus, Aristotle's archeology moved naturally and surely from family to village to polis without a hint of denigration of family or loss of civic culture. The constraint of birth in this progress was inconsistent with modern sovereignty, which needed a broader foundation for membership in the polity, one beyond the participant, indeed, the citizen.

Rome first recognized this necessity, still working on the model of pre-modern sover­eignty and having originated in the like grounds of birth that animated other ancient cities. However imperial Rome made the city an abstraction, abandoned finite limits as a determinant of the regime's reach, and aimed for universality not by taking men in, so to speak, but by national­izing whole tribes and extending Roman citizenship promiscuously. This was the error for which Montesquieu believed Rome fell. To Rome, everyone was a Roman or not a Roman. Roman law could make anyone from any place a Roman, no matter where that person lived. By force of circumstance, the Roman citizen ceased to be a participant in any but a nominal sense. Nevertheless, one did not thereby become human, invested with a more-than-Roman dignity and thus was little more than a savage dressed in a toga. The hordes never really invaded Rome until after it had debased the lineage on which it depended. It was not truly a universal regime. For when it abandoned its particular foundation, Rome also ceased to be any particular polity.

Rome's experience created the conditions out of which the nation-state emerged. Europe's feudalism, which precipitated the nation-state, was, according to the Federalist Papers, "a solecism in theory" predicated on "legislation for communities, as contra distinguished from individuals."[28] The "violence in place of law" and the "destructive coercion of the sword" were ultimately stilled only by theories of subjection in the nation-state, and then only for a time.[29] Notions of enforced peace and territoriality in the nation-state ran full tilt against individual in­terests and the human propensity toward displacement. There never was a perfect match of na­tion-state borders and nationalities, nor could there have been.[30] Therefore, the absolute monar­chy, the original perfected form of the nation-state, proved inadequate to the conceptions of hu­man ends which pressured that state toward its eventual dissolution. Far in the future of absolute monarchies, and also ahead of the modified nation-states which supplanted them, lay the palpa­ble demand for an end to subjection. Consent alone could accommodate the moral claims of human beings.

Novus Ordo Seclorum

Modern sovereignty replaces the nation-state with the state-nation. This is not a mere play on words but rather the introduction of a substantive distinction. Under the terms of mod­ern sovereignty membership in the state is defined by positional rather than by status. National­ity no longer operates to secure the relevant distinctions, which consist primarily in determina­tions concerning the extent to which rights are guaranteed. The first distinction under modern sovereignty is the distinction of citizenship—membership in the state based on commitments of rights guarantees which are available to human beings qua human beings but obligated only by the effective agency of state membership.[31] The existence of the state serves to create de facto that class of human beings whose nominal rights are actually enforceable in contrast with those whose rights are exposed to abuse. In those terms, there are never any citizens under totalitari­anism—which remained a form of ancien régime sovereignty—although nationalities survived more or less intact under totalitarianism.[32]

Modern states have, therefore, chosen to adopt national self-determination as their justifying principle, even when their members do not constitute a nation. . . [I]t strengthens the claim that members of the state share someting more than coordinating institutions, something that evokes in them feelings of solidarity and fraternity." Id. at 124. While, on the other hand, [t]he [liberal] state was therefore seen as an embodiment of abstract humanity, representing those universal qualities that unite all human beings. All dividing features were to be removed from the public sphere. Family affiliations, religious alliances, and professional ties were all viewed as private matters inconse­quential to political life: The true nature of political agents was their citizenship, equally shared by all. Id. at 141.

Although this account cannot be squared with the blunt analysis of James Madison in Federalist No. 10, it is true that this over-generalized picture of liberalism describes the nature of the problem, and thus the task Tamir attempts, which is to argue that principles of justice spring from communities rather than nature. Tamir's account is the best contemporary effort to accomplish this task, though it remains unfulfilled.

Modern sovereignty requires the death of nationality or community membership, not as vital memory but as primary and active basis of civic association. Consequently, the idea of the civic culture, which belongs to the nation, plays no role in sustaining the state-nation even though the state-nation still relies on mediating institutions to preserve that social order which stability and progress require. Mediating institutions, however, only grow out of particular soils. That, in turn, gives rise to the appearance that a "civic culture" remains fundamental, although it in fact becomes only instrumental.

The fact that modern sovereignty relies on a principle of exclusivity—and citizenship is such a principle—no less than does the idea of the nation accounts for twentieth century confu­sion concerning the grounds of membership in the modern polity. The concept of self-determination seems to grow out of principles of modern right, while appearing to apply only to an idea of peoplehood which owes nothing to such principles. Thus, state organizers of the Twentieth Century have attempted to find a natural basis of statehood in the phenomenon of the community rather than in the non-aggregated preferences of rights-bearers.

The Good Polity Is Always Local

We may re-think the problem of exclusivity under modern sovereignty so as to reveal its merely functional and not moral power. Modern sovereignty rests on universal principles rather than local or particular claims. A Czech Republic becomes a Czech Republic not by virtue of being Czech but by virtue of consciously adopting republican goals. Thus far it is no more Czech than Slovak or American. Founding its statehood on universal principles rather than local claims means that the local claims no longer determine membership. Hence, the republic's Czechness is an accident, morally speaking, rather than a necessity. This accident occurs for the sufficient reason—the Aristotelian reason—that every essence appears (becomes phenomenal) via agencies whose accidental qualities condition being-in-the-world. Thus, universal principles are made manifest only in particular forms.

Moreover, universal political principles are articulable only in particular circumstances. To found a republic on principles of universal right, one must organize a particular people who will subscribe those rights. Now, one has two grounds of particularity—hence exclusivity— which follow as a natural consequence. One accidental and not determinative, the other essen­tial. The accidental particularity is the character or culture of the people so organized—thus An­glo-Americans in 1776. The essential particularity is the resulting collectivity itself, which be­comes "a people" organized to live on universal principles, and is thus distinguished from all other peoples (including those similarly organized) and exclusive of peoples not admitting uni­versal principle as a ground of right.

Finally, the exclusivity itself results in two consequences: one accidental and one essen­tial. The universal regime is particular as to other peoples while nonetheless admitting the po­tential membership of all other persons (including persons presently members of illiberal re­gimes). On the other hand, while all persons qua persons are eligible members of the universal regime, in fact the requirements to sustain the regime and provide for its preservation impose practical limits on the number of persons admissible to membership.[33]

The United States, as late as the early Twentieth Century, offered no formal political asy­lum. The explanation was simple; no one needed a reason to apply for American citizenship or residence once inside the United States. Immigration was essentially open and unprescribed, which implied that anyone at all could be an American. In such a world citizenship serves no further than to distinguish actual and potential membership in the liberal regime or, morally, good fortune and bad fortune.

Why Citizenship Matters

It must have been such a reflection as this that led Alexander Bickel to the erroneous con­clusion that citizenship doesn't really matter:

[E]mphasis on citizenship as the tie that binds the individual to government and as the source of his rights leads to metaphysical thinking about politics and law, and more par­ticularly to symmetrical thinking, to a search for reciprocity and symmetry and clarity of uncompromised rights and obligations, rationally ranged one next and against the other. Such thinking bodes ill for the endurance of free, flexible, responsive and stable institu­tions...[34]

It has been the failure to become a little "metaphysical" and "symmetrical," however, which has led scholars and jurists like Bickel and others to create the untenable nether world of American Indians. They both are and are not citizens in the United States and, consequently, suffer im­mensely from being denied the most elementary protections, while nuanced legal theorists try to carve out a form of citizenship which is at the same time a form of wardship to govern policy toward them. Indeed, despite the universal implications of citizenship on the terms of modern sovereignty, citizenship still matters.

The truth about citizenship is not only that it elevates statehood to displace nationhood, but that it also is the decisive condition for articulating the idea of a common good under modern sovereignty. The idea of modern sovereignty emerges from the discovery of natural rights and the resulting requirement of consent to establish legitimate government—a state as opposed to a nation. Nevertheless, it is not so much natural rights as the practical goal of self-government de­duced therefrom which creates the moral conditions of citizenship. The state-nation is defined more by constitutional goals, in contrast to the nation-state in which terms of nationhood or so­cial histories prevail. The chief constitutional goal is that of self-government—a moral reality which is prior to and must shape the political reality as the fundamental condition of political legitimacy.

Thus, even when one is skeptical of the philosophical principles of natural rights, one still must confront the reality of modern sovereignty in the form of self-government as the irreducible human claim. Thus it was last century that the Aristotelian, Gillies, could reject John Locke's social contract but still advance the claims of modern sovereignty. Building on the concept of a "system of civil society" which he attributed to Aristotle, Gillies argued that under many circum­stances the good of the community may be promoted by giving to the people at large a role in control in the government.[35] His argument joins that of the Federalist Papers, maintaining that self-government is not one among the many ends of the modern polity. Rather, it is the end which comprehends all the particular ends that are described in the good polity. This is doubt­less what Madison meant when he wrote, "Justice is the end of government. It is the end of civil society. It ever has been, and ever will be pursued, until it be obtained, or until liberty be lost in the pursuit."[36]

 


[*] This essay was originally prepared for the Colloquium, "The Truth About Politics,"sponsored by the Prague Cir­cle of Political Philosophy, July 4-7, 1994, Prague, Czech Republic and subsequently revised for the Symposium, "The Good Polity Today" sponsored by the University of Pennsylvania, November 4-5, 1994, Philadelphia. This last revision has benefited from the contributions of colleagues in both conferences. It is published in the Cardozo Journal of International and Comparative Law 4:2 (Summer 1996): 355-372

[1] Martin Palous is a professor at Charles University in Prague, Czech Republic. His observations are taken from remarks given at the 1993 Annual Meeting of the American Political Science Association.

[2] Calvin's Case, 7 Co. Rep. 1a, 77 Eng. Rep. 377 (K.B.B 1608) (also known as The Case of the Postnati, or of the Union of the Realm of Scotland with England, 6 Jan. I A.D. 1608), reprinted in 2 A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783, at 559 (T. B. Howell, ed., 1816).

[3] Regina v. Joyce, [1945] 2 All E. R. 673, aff'd sub nom. Joyce v. Director of Public Prosecutions, 1946 App. Cas 347 (appeal taken from Eng.).

[4] The universality of religious principles is open to discussion. However, with respect to the world's major relig­ions, the characterization is true.

[5] "Remonstrance and Petition of Robert Childs, and Others" (1646) in A Collections of Original Papers Relative to the History of the Colony of Massachusetts-Bay 188 (1769).

[6] Id. at 190-191.

[7] "A Declaration of the General Court holden at Boston 4 (9) 1646, concerning a Remonstrance and Petitions ex­hibited at last Session of this Court by Doctor Child, Thomas Fowle, Samuel Mavericak, Thomas Burtin, John Smith, David Yale, and John Dand" (April 9, 1646) in A Collection of Originial Papers Relative to the History of the Colony of Massachusetts-Bay, at 196 (1769).

[8] Id. at n8.

[9] Id. at 199.

[10] Id.

[11] Id.

[12] Id. at 202.

[13] Id. at 201.02.

[14] Id. at 201-02.

[15] Translated from Montesquieu, Esprit des Lois, III, 3 (Masson ed., 1954).

[16] An Act Declaring England to be a Commonwealth. May 18, 1649.

[17] Id.

[18] This was the second English revolution. The first, the English Civil War, took place from 1648 to 1660.

[19] Stanley N. Katz, Introduction to 1 William Blackstone, Commentaries on the Laws of England at iii (phot. reprint 1979) (1765). While it is true that Blackstone specifically affirmed parliamentary supremacy, it may also be said that the purpose of the Commentaries is to unfold English law in such a manner as to defeat claims of popular rever­sion of sovereignty.

[20] Locke repeatedly affirmed that "the form of government depending upon the placing of the supreme power, which is the legislative . . ." John Locke, "An Essay Concerning the True Original, Extent, and End of Civil Gov­ernment" in Social Contract: Essays by Locke, Hume, and Rousseau XX, 77. This may, however, seem only a delegation of limited powers, in light of the proviso that men cannot convey to others the power of "their preserva­tion" and "always have a right to preserve what they have not a power to part with." Id. at 87, 88. Locke explains, however, that the residual power of individuals cannot assume any governmental form—that is, it cannot be com­prehended within the constitution. While, therefore, the power of the community may seem supreme, it is only figu­ratively so, since the only power the community as such can exercise is to form a constitution. They are not even able, under the constitution, to redress the deprivation of their rights.

Though the people cannot judge so as to have by the constitution of that society any superior power to de­termine and give effective sentence in the case, yet they have by law antecedent and paramount to all posi­tive laws of men, reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth—viz., to judge whether they have just cause to make their appeal to heaven.

Id.

This is the light in which one must read the assertion that the "legislative must needs be supreme, and all other pow­ers in any member or parts of the society, derived from and subordinate to it." Id. at 88. According to Locke, the legislative has permanent custody of the constitution, and that is the precise meaning of legislative supremacy (ren­dering the members of the community rather subjects than citizens).

[21] Blackstone, supra note 20, at 157; see id. at 149-57; cf. James Wilson & Thomas McKean, Commentaries on the Constituting of the United States of America 38, 62 (1792).

Sir William Blackstone will tell you, that in Britain, the [supreme] power is lodged in the British Parlia­ment, that the Parliament may alter the form of government; and that its power is absolute control. The idea of a constitution limiting and superintending the operations of legislative authority, seems not to have been accurately understood in Britain.

[22] See, "Circular to the States" (June 8, 1783) in 26 George Washington, The Writings of George Washington 483

(John C. Fitzpatrick, ed., 1938).

[23] The Federalist No. 10 (James Madison).

[24] See id.

[25] See Addison, Cato.

[26] Henry Neville, "Plato Redivivus, or a Dialogue Concerning Government" (1681), reprinted in Two English Re­publican Tracts, 61, 83 (Caroline Robbins, ed., 1969).

[27] This term is far preferable, as more inclusive than the term Whig, in the attempt to identify the Anglo-American tradition. At a minimum it emphasizes that the Americans were "born republicans" (or at least "christened" so by Pastor Robinson) from the beginning, justifying Tocqueville's perception.

[28] The Federalist No. 20, at 185-86 (James Madison) (Benjamin Fletcher Wright, ed., 1974).

[29] Id. at 186.

[30] See Yael Tamir, Liberal Nationalism (1993). Tamir recognizes this fact, even as she tries to save the idea of the nation-community as the fundamental basis of civil society.

[O]ur understanding of the need for generalised, impartial principles can only emerge through a commit­ment to partiality...if the former cannot be attained without experiencing and practicing the latter, then jus­tice cannot become a permanent feature of our moral lives unless we recognise the importance of the mo­rality of community. Id.

[31] James Wilson provides it thus:

Under civil government, one is entitled not only to those rights which are natural; he is entitled to others which are acquired. He is entitled to the honest administration of the government in general: he is entitled, in particular, to the impartial administration of justice. Those rights may be infringed; the infringements of them are crimes. The Works of James Wilson 426 (James DeWitt Andrews, ed., 1896).

This account of membership in civil government—citizenship—transcends questions of identity and culture to make rights paramount. Wilson, of course, was a member of the Constitutional Convention of the United States in 1787 and also on the first Supreme Court under the Constitution.

[32] In the aftermath of the Soviet Union, the argument I made fifteen years ago echoes faithfully. The preservation of Soviet power, including the tyranny over their own peoples, depends utterly on their exercise of that will. And that is the same thing as to say that they must frustrate and counteract all other ruling forces, including the political, which would diminish the force of their will (ergo, the Polish problem). Their empire is so constituted that they must either spread their power or die (abstracting from the limit which nature places to their power). Unlike the Romans, who destroyed themselves by [actually] developing a concept of Roman citizenship. I am saying that Soviet hegemonism, its spread, is the key to preservation of dubiety about Soviet citizenship and, hence, internal ques­tions about a public good which might serve to coalesce opposition to the regime on the basis of a conception of the needs and ideals of a particular people. In other words, the Soviet regime lasted as long as it did only by means of waging war against the principle idea of modern sovereignty, citizenship.

[33] For example, such limits may include restricting the number of persons who can be admitted so as to be consis­tent with the sound functioning of a regime confronted with resource and relational limitations on its existence.

[34] Alexander M. Bickel, "Citizenship in the American Constitution," 15 Ariz. L. Rev. 369, 387 (1973).

[35] John Gillies, Introduction to Edward Walford, Politics and Economies of Aristotle xxxviii.

[36] The Federalist No. 51, at 358 (James Madison) (Benjamin Fletcher Wright, ed., 1974).

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