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Liberty and Constitutionalism: Five Founding FreedomsSummer Teachers’ Academy

on the History & Principles of the American Founding

Day ThreeWednesday, July 14, 2010

Liberty, Property, and the Pursuit of Happiness

Visiting Scholar:Michael Zuckert, Department of Government, University of Notre Dame

Readings:

DOCUMENT PAGE

William Bradford, Of Plymouth Plantation (1623) 2

James Harrington, Commonwealth of Oceana (1656)--Excerpt 4

John Locke, Second Treatise , Sections 25-51 (1689) 10

John Trenchard, Cato’s Letters , no. 68, 3 March 1721 24

Bernard Mandeville, The Grumbling Hive; Or, Knaves Turn’d Honest (1705) 26

William Blackstone, Commentaries 1:134-35, 140-141 (1765) 42

James Madison, “Property,” 29 March 1792 45

Thomas Jefferson to Isaac McPherson, 13 August 1813 49

Thomas Jefferson to John Adams, 28 October 1813 51

Reading for Afternoon Session on Constitutional Law

Mark D. Rosen, "An Important Question of Constitutional Structure" 58

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William Bradford, Of Plymouth Plantation (1623)

Online Source:

The Founders' ConstitutionVolume 1, Chapter 16, Document 1http://press-pubs.uchicago.edu/founders/documents/v1ch16s1.htmlThe University of Chicago Press

Print Source:

Bradford, William. Of Plymouth Plantation, 1620--1647. Edited by Samuel Eliot Morison. New York: Modern Library, 1967.(Excerpt, pp. 120-121)

Document:

William Bradford, Of Plymouth Plantation (1623)

All this while no supply was heard of, neither knew they when they might expect any. So

they began to think how they might raise as much corn as they could, and obtain a better

crop than they had done, that they might not still thus languish in misery. At length, after

much debate of things, the Governor (with the advice of the chiefest amongst them) gave

way that they should set corn every man for his own particular, and in that regard trust to

themselves; in all other things to go on in the general way as before. And so assigned to

every family a parcel of land, according to the proportion of their number, for that end, only

for present use (but made no division for inheritance) and ranged all boys and youth under

some family. This had very good success, for it made all hands very industrious, so as much

more corn was planted than otherwise would have been by any means the Governor or any

other could use, and saved him a great deal of trouble, and gave far better content. The

women now went willingly into the field, and took their little ones with them to set corn;

which before would allege weakness and inability; whom to have compelled would have

been thought great tyranny and oppression.

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http://press-pubs.uchicago.edu/founders/documents/v1ch16s1.html

The experience that was had in this common course and condition, tried sundry years and

that amongst godly and sober men, may well evince the vanity of that conceit of Plato's and

other ancients applauded by some of later times; that the taking away of property and

bringing in community into a commonwealth would make them happy and flourishing; as if

they were wiser than God. For this community (so far as it was) was found to breed much

confusion and discontent and retard much employment that would have been to their benefit

and comfort. For the young men, that were most able and fit for labour and service, did

repine that they should spend their time and strength to work for other men's wives and

children without any recompense. The strong, or man of parts, had no more in division of

victuals and clothes than he that was weak and not able to do a quarter the other could; this

was thought injustice. The aged and graver men to be ranked and equalized in labours and

victuals, clothes, etc., with the meaner and younger sort, thought it some indignity and

disrespect unto them. And for men's wives to be commanded to do service for other men, as

dressing their meat, washing their clothes, etc., they deemed it a kind of slavery, neither

could many husbands well brook it. Upon the point all being to have alike, and all to do

alike, they thought themselves in the like condition, and one as good as another; and so, if it

did not cut off those relations that God hath set amongst men, yet it did at least much

diminish and take off the mutual respects that should be preserved amongst them. And

would have been worse if they had been men of another condition. Let none object this is

men's corruption, and nothing to the course itself. I answer, seeing all men have this

corruption in them, God in His wisdom saw another course fitter for them.

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James Harrington, Commonwealth of Oceana (1656)--Excerpt

Online Source:


Print Source:

Excerpt from James Harrington, Commonwealth of Oceana, 1656, pp. 70-75

Document:

James Harrington, Commonwealth of Oceana (1656)Excerpt, pp. 70--75

By what has been shown in reason and experience it may appear that, though

commonwealths in general be governments of the senate proposing, the people resolving,

and the magistracy executing, yet some are not so good at these orders as others, through

some impediment or defect in the frame, balance, or capacity of them, according to which

they are of divers kinds.

The first division of them is into such as are single, as Israel, Athens, Lacedaemon, etc., and

such as are by leagues, as those of the Achaeans, Aetolians, Lyceans, Swiss, and Hollanders.

The second (being Machiavelli's) is into such as are for preservation, as Lacedaemon and

Venice, and such as are for increase, as Athens and Rome, in which I can see no more than

that the former take in no more citizens than are necessary for defense, and the latter so

many as are capable of increase.

The third division (unseen hitherto) is into equal and unequal, and this is the main point

especially as to domestic peace and tranquility. For to make a commonwealth unequal is to

divide it into parties, which sets them at perpetual variance, the one party endeavoring to 4


preserve their eminence and inequality, and the other to attain to equality. Whence the

people of Rome derived their perpetual strife with the nobility or Senate. But in an equal

commonwealth there can be no more strife than there can be overbalance in equal weights.

Wherefore the commonwealth of Venice, being that which of all others is the most equal in

the constitution, is that wherein there never happened any strife between the Senate and the

people.

An equal commonwealth is such a one as is equal, both in the balance and foundation and in

the superstructures; that is to say, in her Agrarian Law and in her rotation.

An equal Agrarian is a perpetual law establishing and preserving the balance of dominion

by such a distribution that no one man or number of men within the compass of the few or

aristocracy can come to overpower the whole people by their possessions in lands.

As the Agrarian answers to the foundation, so does rotation to the superstructures.

Equal rotation is equal vicissitude in government, or succession unto magistracy conferred

for such convenient terms, enjoying equal vacations, as take in the whole body by parts

succeeding others through the free election or suffrage of the people.

The contrary whereunto is prolongation of magistracy which, trashing the wheel of rotation,

destroys the life or natural motion of a commonwealth.

The election or suffrage of the people is freest where it is made or given in such a manner

that it can neither oblige (qui beneficium accepit libertatem vendidit) ["Who accepts a gift

sells liberty"] nor disoblige another or, through fear of an enemy or bashfulness toward a

friend, impair a man's liberty.

Wherefore says Cicero, "Grata populo est tabella quae frontes aperit hominum, mentes

tegit, datque eam libertatem ut quod velint faciant," ["For if the people cherishes its

privilege of voting by ballot, which allows a man to wear a smooth brow while it cloaks the

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secrets of his heart, and which leaves him free to act as he chooses, while he gives any

promise he may be asked to give, why do you insist that the courts should determine what a

vote cannot?"] the tablet (or ballot of the people of Rome, who gave their votes by throwing

tablets or little pieces of wood secretly into urns marked for the negative or affirmative) was

a welcome constitution to the people, as that which, not impairing the assurance of their

brows, increased the freedom of their judgment. I have not stood upon a more particular

description of this ballot because that of Venice, exemplified in the Model, is of all others

the most perfect.

An equal commonwealth (by that which has been said) is a government established upon an

equal Agrarian, arising into the superstructures or three orders: the senate debating and

proposing, the people resolving, and the magistracy executing by an equal rotation through

the suffrage of the people given by the ballot. For though rotation may be without the ballot,

and the ballot without rotation, yet the ballot not only as to the ensuing Model includes both,

but is by far the most equal way; for which cause under the name of the ballot I shall

hereafter understand both that and rotation too.

Now having reasoned the principles of an equal commonwealth, I should come to give an

instance of such a one in experience if I could find it. But if this work be of any value, it lies

in that it is the first example of a commonwealth that is perfectly equal. For Venice, though

she come the nearest, yet is a commonwealth for preservation, and such a one, considering

the paucity of citizens taken in and the number not taken in, is externally unequal. And

though every commonwealth that holds provinces must in that regard be such, yet not to that

degree. Nevertheless, Venice internally and for her capacity is by far the most equal, though

she has not in my judgment arrived at the full perfection of equality, both because her laws

supplying the defect of an Agrarian are not so clear nor effectual at the foundation, nor her

superstructures by the virtue of her ballot or rotation exactly librated, in regard that, through

the paucity of her citizens, her greater magistracies are continually wheeled through a few

hands. As is confessed by Gianotti where he says that if a gentleman come once to be Savio

di terra ferma, it seldom happens that he fails from thenceforth to be adorned with some one

of the greater magistracies, as Savi di mare, Savi di terra ferma, Savi Grandi, Counselors,

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those of the decemvirate or dictatorian council, the Aurogatori or censors which require no

vacation or interval. Wherefore, if this in Venice or that in Lacedaemon, where the kings

were hereditary and the senators (though elected by the people) for life, cause no inequality

(which is hard to be conceived) in a commonwealth for preservation or such a one as

consists of a few citizens, yet is it manifest that it would cause a very great one in a

commonwealth for increase or consisting of the many, which by the engrossing [of] the

magistracies in a few hands would be obstructed in their rotation.

But there be [those] that say (and think it a strong objection), let a commonwealth be as

equal as you can imagine, two or three men when all is done will govern it; and there is that

in it which, notwithstanding the pretended sufficiency of a popular state, amounts to a plain

confession of the imbecility of that policy and of the prerogative of monarchy, for as much

as popular governments in difficult cases have had recourse to dictatorian power as in Rome.

To which I answer, that as truth is a spark whereunto objections are like bellows, so in this

our commonwealth shines. For the eminence acquired by suffrage of the people in a

commonwealth, especially if it be popular and equal, can be ascended by no other steps than

the universal acknowledgment of virtue; and where men excel in virtue, the commonwealth

is stupid and unjust if accordingly they do not excel in authority. Wherefore this is both the

advantage of virtue, which has her due encouragement, and the commonwealth, which has

her due services. These are the philosophers which Plato would have to be princes, the

princes which Solomon would have to be mounted, and their steeds are those of authority,

not empire. Or, if they be buckled to the chariot of empire, as that of the dictatorian power,

like the chariot of the sun it is glorious for terms and vacations or intervals. And as a

commonwealth is a government of laws and not of men, so is this the principality of the

virtue and not of the man. If that fail or set in one, it rises in another, which is created his

immediate successor.

. . . Uno avulso non deficit alter, Aureus, et simili frondescit virga metallo.

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["And when [a bough] is torn away, another gold one grows in its place with leaves of the

same metal."]

And this takes away that vanity from under the sun which is an error proceeding more or

less from all other rulers under heaven but an equal commonwealth.

These things considered, it will be convenient in this place to speak a word to such as go

about to insinuate to the nobility or gentry a fear of the people, or into the people a fear of

the nobility or gentry, as if their interests were each destructive to [the] other, when in truth

an army may as well consist of soldiers without officers or of officers without soldiers, as a

commonwealth, especially such a one as is capable of greatness, of a people without a

gentry or of a gentry without a people. Wherefore this (though not always so intended, as

may appear by Machiavelli who else would be guilty) is a pernicious error. There is

something first in the making of a commonwealth, then in the governing of her, and last of

all in the leading of her armies, which, though there be great divines, great lawyers, great

men in all professions, seems to be peculiar to the genius of a gentleman. For so it is in the

universal series of [history], that if any man have founded a commonwealth, he was first a

gentleman. Moses had his education by the daughter of Pharaoh; Theseus and Solon, of

noble birth, were held by the Athenians worthy to be kings; Lycurgus was of the blood-

royal; Romulus and Numa princes; Brutus and Publicola patricians; the Gracchi that lost

their lives for the people of Rome and the restitution of that commonwealth were the sons of

a father adorned with two Triumphs, and of Cornelia, the daughter of Scipio, who being

sought in marriage by King Ptolemy, disdained to be the queen of Egypt. And the most

renowned Olphaus Megaletor [Oliver Cromwell], sole Legislator (as you will see) of the

Commonwealth of Oceana, was derived from a noble family. Nor will it be any occasion of

scruple in this case that Hobbes affirms the politics to be no ancienter than his book De cive.

Such also as have gotten any fame in the civil government of a commonwealth, or by the

leading of her armies, have been gentlemen. For so in all other respects were those plebeian

magistrates elected by the people of Rome, being of known descents and of equal virtues,

save only that they were excluded from the name by the usurpation of the patricians.

Holland, through this defect at home, has borrowed princes for her generals and gentlemen

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for her commanders, of divers nations. And Switzerland, if she have defect in this kind,

rather lends her people to the colors of other princes than makes that noble use of them

herself which should assert the liberty of mankind. For where there is not a nobility to bolt

out the people, they are slothful, regardless of the world and the public interest of liberty, as

even that of Rome had been without her gentry. Wherefore let the people embrace the gentry

in peace as the light of their eyes and in war as the trophy of their arms. And if Cornelia

disdained to be Queen of Egypt, if a Roman consul looked down from his tribunal upon the

greatest king, let the nobility love and cherish the people that afford them a throne so much

higher in a commonwealth, and in the acknowledgment of their virtue, than the crowns of

monarchs.

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John Locke, Second Treatise , Sections 25-51 (1689)

Online Source:


Print Source:John Locke, Second Treatise (1689), Sections 25-51.

Document:

John Locke, Second Treatise, Sections 25—51 (1689)

25. Whether we consider natural Reason, which tells us, that Men, being once born, have a

right to their Preservation, and consequently to Meat and Drink, and such other things, as

Nature affords for their Subsistence: Or Revelation, which gives us an account of those

Grants God made of the World to Adam, and to Noah, and his Sons, 'tis very clear, that God,

as King David says, Psal. CXV. xvi. has given the Earth to the Children of Men, given it to

Mankind in common. But this being supposed, it seems to some a very great difficulty, how

any one should ever come to have a Property in any thing: I will not content my self to

answer, That if it be difficult to make out Property, upon a supposition, that God gave the

World to Adam and his Posterity in common; it is impossible that any Man, but one

universal Monarch, should have any Property, upon a supposition, that God gave the World

to Adam, and his Heirs in Succession, exclusive of all the rest of his Posterity. But I shall

endeavour to shew, how Men might come to have a property in several parts of that which

God gave to Mankind in common, and that without any express Compact of all the

Commoners.

26. God, who hath given the World to Men in common, hath also given them reason to make

use of it to the best advantage of Life, and convenience. The Earth, and all that is therein, is

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given to Men for the Support and Comfort of their being. And though all the Fruits it

naturally produces, and Beasts it feeds, belong to Mankind in common, as they are produced

by the spontaneous hand of Nature; and no body has originally a private Dominion,

exclusive of the rest of Mankind, in any of them, as they are thus in their natural state: yet

being given for the use of Men, there must of necessity be a means to appropriate them

some way or other before they can be of any use, or at all beneficial to any particular Man.

The Fruit, or Venison, which nourishes the wild Indian, who knows no Inclosure, and is still

a Tenant in common, must be his and so his, i.e. a part of him, that another can no longer

have any right to it, before it can do him any good for the support of his Life.

27. Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a

Property in his own Person. This no Body has any Right to but himself. The Labour of his

Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he

removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour

with, and joyned to it something that is his own, and thereby makes it his Property. It being

by him removed from the common state Nature placed it in, hath by this labour something

annexed to it, that excludes the common right of other Men. For this Labour being the

unquestionable Property of the Labourer, no man but he can have a right to what that is once

joyned to, at least where there is enough, and as good left in common for others.

28. He that is nourished by the Acorns he pickt up under an Oak, or the Apples he gathered

from the Trees in the Wood, has certainly appropriated them to himself. No Body can deny

but the nourishment is his. I ask then, When did they begin to be his? When he digested? Or

when he eat? Or when he boiled? Or when he brought them home? Or when he pickt them

up? And 'tis plain, if the first gathering made them not his, nothing else could. That labour

put a distinction between them and common. That added something to them more than

Nature, the common Mother of all, had done; and so they became his private right. And will

any one say he had no right to those Acorns or Apples he thus appropriated, because he had

not the consent of all Mankind to make them his? Was it a Robbery thus to assume to

himself what belonged to all in Common? If such a consent as that was necessary, Man had

starved, notwithstanding the Plenty God had given him. We see in Commons, which remain

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so by Compact, that 'tis the taking any part of what is common, and removing it out of the

state Nature leaves it in, which begins the Property; without which the Common is of no

use. And the taking of this or that part, does not depend on the express consent of all the

Commoners. Thus the Grass my Horse has bit; the Turfs my Servant has cut; and the Ore I

have digg'd in any place where I have a right to them in common with others, become my

Property, without the assignation or consent of any body. The labour that was mine,

removing them out of that common state they were in, hath fixed my Property in them.

29. By making an explicit consent of every Commoner, necessary to any ones appropriating

to himself any part of what is given in common, Children or Servants could not cut the Meat

which their Father or Master had provided for them in common, without assigning to every

one his peculiar part. Though the Water running in the Fountain be every ones, yet who can

doubt, but that in the Pitcher is his only who drew it out? His labour hath taken it out of the

hands of Nature, where it was common, and belong'd equally to all her Children, and hath

thereby appropriated it to himself.

30. Thus this Law of reason makes the Deer, that Indian's who hath killed it; 'tis allowed to

be his goods who hath bestowed his labour upon it, though before, it was the common right

of every one. And amongst those who are counted the Civiliz'd part of Mankind, who have

made and multiplied positive Laws to determine Property, this original Law of Nature for

the beginning of Property, in what was before common, still takes place; and by vertue

thereof, what Fish any one catches in the Ocean, that great and still remaining Common of

Mankind; or what Ambergriese any one takes up here, is by the Labour that removes it out

of that common state Nature left it in, made his Property who takes that pains about it. And

even amongst us the Hare that any one is Hunting, is thought his who pursues her during the

Chase. For being a Beast that is still looked upon as common, and no Man's private

Possession; whoever has imploy'd so much labour about any of that kind, as to find and

pursue her, has thereby removed her from the state of Nature, wherein she was common, and

hath begun a Property.

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31. It will perhaps be objected to this, That if gathering the Acorns, or other Fruits of the

Earth, &c. makes a right to them, then any one may ingross as much as he will. To which I

Answer, Not so. The same Law of Nature, that does by this means give us Property, does

also bound that Property too. God has given us all things richly, 1 Tim. vi. 17. is the Voice

of Reason confirmed by Inspiration. But how far has he given it us? To enjoy. As much as

any one can make use of to any advantage of life before it spoils; so much he may by his

labour fix a Property in. Whatever is beyond this, is more than his share, and belongs to

others. Nothing was made by God for Man to spoil or destroy. And thus considering the

plenty of natural Provisions there was a long time in the World, and the few spenders, and to

how small a part of that provision the industry of one Man could extend it self, and ingross it

to the prejudice of others; especially keeping within the bounds, set by reason of what might

serve for his use; there could be then little room for Quarrels or Contentions about Property

so establish'd.

32. But the chief matter of Property being now not the Fruits of the Earth, and the Beasts

that subsist on it, but the Earth it self; as that which takes in and carries with it all the rest: I

think it is plain, that Property in that too is acquired as the former. As much Land as a Man

Tills, Plants, Improves, Cultivates, and can use the Product of, so much is his Property. He

by his Labour does, as it were, inclose it from the Common. Nor will it invalidate his right to

say, Every body else has an equal Title to it; and therefore he cannot appropriate, he cannot

inclose, without the Consent of all his Fellow-Commoners, all Mankind. God, when he gave

the World in common to all Mankind, commanded Man also to labour, and the penury of his

Condition required it of him. God and his Reason commanded him to subdue the Earth, i.e.

improve it for the benefit of Life, and therein lay out something upon it that was his own, his

labour. He that in Obedience to this Command of God, subdued, tilled and sowed any part of

it, thereby annexed to it something that was his Property, which another had no Title to, nor

could without injury take from him.

33. Nor was this appropriation of any parcel of Land, by improving it, any prejudice to any

other Man, since there was still enough, and as good left; and more than the yet unprovided

could use. So that in effect, there was never the less left for others because of his inclosure

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for himself. For he that leaves as much as another can make use of, does as good as take

nothing at all. No Body could think himself injur'd by the drinking of another Man, though

he took a good Draught, who had a whole River of the same Water left him to quench his

thirst. And the Case of Land and Water, where there is enough of both, is perfectly the same.

34. God gave the World to Men in Common; but since he gave it them for their benefit, and

the greatest Conveniencies of Life they were capable to draw from it, it cannot be supposed

he meant it should always remain common and uncultivated. He gave it to the use of the

Industrious and Rational, (and Labour was to be his Title to it;) not to the Fancy or

Covetousness of the Quarrelsom and Contentious. He that had as good left for his

Improvement, as was already taken up, needed not complain, ought not to meddle with what

was already improved by another's Labour: If he did, 'tis plain he desired the benefit of

another's Pains, which he had no right to, and not the Ground which God had given him in

common with others to labour on, and whereof there was as good left, as that already

possessed, and more than he knew what to do with, or his Industry could reach to.

35. 'Tis true, in Land that is common in England, or any other Country, where there is Plenty

of People under Government, who have Money and Commerce, no one can inclose or

appropriate any part, without the consent of all his Fellow-Commoners: Because this is left

common by Compact, i.e. by the Law of the Land, which is not to be violated. And though it

be Common, in respect of some Men, it is not so to all Mankind; but is the joint property of

this Countrey, or this Parish. Besides, the remainder, after such inclosure, would not be as

good to the rest of the Commoners as the whole was, when they could all make use of the

whole: whereas in the beginning and first peopling of the great Common of the World, it

was quite otherwise. The Law Man was under, was rather for appropriating. God

Commanded, and his Wants forced him to labour. That was his Property which could not be

taken from him where-ever he had fixed it. And hence subduing or cultivating the Earth, and

having Dominion, we see are joyned together. The one gave Title to the other. So that God,

by commanding to subdue, gave Authority so far to appropriate. And the Condition of

Humane Life, which requires Labour and Materials to work on, necessarily introduces

private Possessions.

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36. The measure of Property, Nature has well set, by the Extent of Mens Labour, and the

Conveniency of Life: No Mans Labour could subdue, or appropriate all: nor could his

Enjoyment consume more than a small part; so that it was impossible for any Man, this way,

to intrench upon the right of another, or acquire, to himself, a Property, to the Prejudice of

his Neighbour, who would still have room, for as good, and as large a Possession (after the

other had taken out his) as before it was appropriated. This measure did confine every Man's

Possession, to a very moderate Proportion, and such as he might appropriate to himself,

without Injury to any Body in the first Ages of the World, when Men were more in danger to

be lost, by wandering from their Company, in the then vast Wilderness of the Earth, than to

be straitned for want of room to plant in. And the same measure may be allowed still,

without prejudice to any Body, as full as the World seems. For supposing a Man, or Family,

in the state they were, at first peopling of the World by the Children of Adam, or Noah; let

him plant in some in-land, vacant places of America, we shall find that the Possessions he

could make himself upon the measures we have given, would not be very large, nor, even to

this day, prejudice the rest of Mankind, or give them reason to complain, or think

themselves injured by this Man's Incroachment, though the Race of Men have now spread

themselves to all the corners of the World, and do infinitely exceed the small number

[which] was at the beginning. Nay, the extent of Ground is of so little value, without labour,

that I have heard it affirmed, that in Spain it self, a Man may be permitted to plough, sow,

and reap, without being disturbed, upon Land he has no other Title to, but only his making

use of it. But, on the contrary, the Inhabitants think themselves beholden to him, who, by his

Industry on neglected, and consequently waste Land, has increased the stock of Corn, which

they wanted. But be this as it will, which I lay no stress on; This I dare boldly affirm, That

the same Rule of Propriety, (viz.) that every Man should have as much as he could make use

of, would hold still in the World, without straitning any body, since there is Land enough in

the World to suffice double the Inhabitants had not the Invention of Money, and the tacit

Agreement of Men to put a value on it, introduced (by Consent) larger Possessions, and a

Right to them; which, how it has done, I shall, by and by, shew more at large.

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37. This is certain, That in the beginning, before the desire of having more than Men needed,

had altered the intrinsick value of things, which depends only on their usefulness to the Life

of Man; or [Men] had agreed, that a little piece of yellow Metal, which would keep without

wasting or decay, should be worth a great piece of Flesh, or a whole heap of Corn; though

Men had a Right to appropriate, by their Labour, each one to himself, as much of the things

of Nature, as he could use: Yet this could not be much, nor to the Prejudice of others, where

the same plenty was still left, to those who would use the same Industry. To which let me

add, that he who appropriates land to himself by his labour, does not lessen but increase the

common stock of mankind. For the provisions serving to the support of humane life,

produced by one acre of inclosed and cultivated land, are (to speak much within compasse)

ten times more, than those, which are yeilded by an acre of Land, of an equal richnesse,

lyeing wast in common. And therefor he, that incloses Land and has a greater plenty of the

conveniencys of life from ten acres, than he could have from an hundred left to Nature, may

truly be said, to give ninety acres to Mankind. For his labour now supplys him with

provisions out of ten acres, which were but the product of an hundred lying in common. I

have here rated the improved land very low in making its product but as ten to one, when it

is much nearer an hundred to one. For I aske whether in the wild woods and uncultivated

wast of America left to Nature, without any improvement, tillage or husbandry, a thousand

acres will yeild the needy and wretched inhabitants as many conveniencies of life as ten

acres of equally fertile land doe in Devonshire where they are well cultivated?

Before the Appropriation of Land, he who gathered as much of the wild Fruit, killed, caught,

or tamed, as many of the Beasts as he could; he that so employed his Pains about any of the

spontaneous Products of Nature, as any way to alter them, from the state which Nature put

them in, by placing any of his Labour on them, did thereby acquire a Property in them: But

if they perished, in his Possession, without their due use; if the Fruits rotted, or the Venison

putrified, before he could spend it, he offended against the common Law of Nature, and was

liable to be punished; he invaded his Neighbour's share, for he had no Right, farther than his

Use called for any of them, and they might serve to afford him Conveniencies of Life.

16

38. The same measures governed the Possession of Land too: Whatsoever he tilled and

reaped, laid up and made use of, before it spoiled, that was his peculiar Right; whatsoever he

enclosed, and could feed, and make use of, the Cattle and Product was also his. But if either

the Grass of his Inclosure rotted on the Ground, or the Fruit of his planting perished without

gathering, and laying up, this part of the Earth, notwithstanding his Inclosure, was still to be

looked on as Waste, and might be the Possession of any other. Thus, at the beginning, Cain

might take as much Ground as he could till, and make it his own Land, and yet leave enough

to Abel's Sheep to feed on; a few Acres would serve for both their Possessions. But as

Families increased, and Industry inlarged their Stocks, their Possessions inlarged with the

need of them; but yet it was commonly without any fixed property in the ground they made

use of, till they incorporated, settled themselves together, and built Cities, and then, by

consent, they came in time, to set out the bounds of their distinct Territories, and agree on

limits between them and their Neighbours, and by Laws within themselves, settled the

Properties of those of the same Society. For we see, that in that part of the World which was

first inhabited, and therefore like to be best peopled, even as low down as Abraham's time,

they wandred with their Flocks, and their Herds, which was their substance, freely up and

down; and this Abraham did, in a Country where he was a Stranger. Whence it is plain, that

at least, a great part of the Land lay in common; that the Inhabitants valued it not, nor

claimed Property in any more than they made use of. But when there was not room enough

in the same place, for their Herds to feed together, they, by consent, as Abraham and Lot

did, Gen. xiii. 5. separated and inlarged their pasture, where it best liked them. And for the

same Reason Esau went from his Father, and his Brother, and planted in Mount Seir, Gen.

xxxvi. 6.

39. And thus, without supposing any private Dominion, and property in Adam, over all the

World, exclusive of all other Men, which can no way be proved, nor any ones Property be

made out from it; but supposing the World given as it was to the Children of Men in

common, we see how labour could make Men distinct titles to several parcels of it, for their

private uses; wherein there could be no doubt of Right, no room for quarrel.

17

40. Nor is it so strange, as perhaps before consideration it may appear, that the Property of

labour should be able to over-ballance the Community of Land. For 'tis Labour indeed that

puts the difference of value on every thing; and let any one consider, what the difference is

between an Acre of Land planted with Tobacco, or Sugar, sown with Wheat or Barley; and

an Acre of the same Land lying in common, without any Husbandry upon it, and he will

find, that the improvement of labour makes the far greater part of the value. I think it will be

but a very modest Computation to say, that of the Products of the Earth useful to the Life of

man 9/10 are the effects of labour: nay, if we will rightly estimate things as they come to our

use, and cast up the several Expenses about them, what in them is purely owing to Nature,

and what to labour, we shall find, that in most of them 99/100 are wholly to be put on the

account of labour.

41. There cannot be a clearer demonstration of any thing, than several Nations of the

Americans are of this, who are rich in Land, and poor in all the Comforts of Life; whom

Nature having furnished as liberally as any other people, with the materials of Plenty, i.e. a

fruitful Soil, apt to produce in abundance, what might serve for food, rayment, and delight;

yet for want of improving it by labour, have not one hundredth part of the Conveniencies we

enjoy: And a King of a large fruitful Territory there feeds, lodges, and is clad worse than a

day Labourer in England.

42. To make this a little clearer, let us but trace some of the ordinary provisions of Life,

through their several progresses, before they come to our use, and see how much they

receive of their value from Humane Industry. Bread, Wine and Cloth, are things of daily use,

and great plenty, yet notwithstanding, Acorns, Water, and Leaves, or Skins, must be our

Bread, Drink and Clothing, did not labour furnish us with these more useful Commodities.

For whatever Bread is more worth than Acorns, Wine than Water, and Cloth or Silk than

Leaves, Skins, or Moss, that is wholly owing to labour and industry. The one of these being

the Food and Rayment which unassisted Nature furnishes us with; the other provisions

which our industry and pains prepare for us, which how much they exceed the other in

value, when any one hath computed, he will then see, how much labour makes the far

greatest part of the value of things, we enjoy in this World: And the ground which produces

18

the materials, is scarce to be reckon'd in, as any, or at most, but a very small, part of it; So

little, that even amongst us, Land that is left wholly to Nature, that hath no improvement of

Pasturage, Tillage, or Planting, is called, as indeed it is, wast; and we shall find the benefit

of it amount to little more than nothing. This shews, how much numbers of men are to be

preferd to largenesse of dominions, and that the increase of lands and the right imploying of

them is the great art of government. And that Prince who shall be so wise and godlike as by

established laws of liberty to secure protection and incouragement to the honest industry of

Mankind against the oppression of power and narrownesse of Party will quickly be too hard

for his neighbours. But this bye the bye. To return to the argument in hand.

43. An Acre of Land that bears here Twenty Bushels of Wheat, and another in America,

which, with the same Husbandry, would do the like, are without doubt, of the same natural,

intrinsick Value. But yet the Benefit Mankind receives from the one, in a Year, is worth 5 l.

and from the other possibly not worth a Penny, if all the Profit an Indian received from it

were to be valued, and sold here; at least, I may truly say, not 1/1000. 'Tis Labour then

which puts the greatest part of Value upon Land, without which it would scarcely be worth

any thing: 'tis to that we owe the greatest part of all its useful Products; for all that the Straw,

Bran, Bread, of that Acre of Wheat, is more worth than the Product of an Acre of as good

Land, which lies wast, is all the Effect of Labour. For 'tis not barely the Plough-man's Pains,

the Reaper's and Thresher's Toil, and the Bakers Sweat, is to be counted into the Bread we

eat; the Labour of those who broke the Oxen, who digged and wrought the Iron and Stones,

who felled and framed the Timber imployed about the Plough, Mill, Oven, or any other

Utensils, which are a vast Number, requisite to this Corn, from its being seed to be sown to

its being made Bread, must all be charged on the account of Labour, and received as an

effect of that; Nature and the Earth furnished only the almost worthless Materials, as in

themselves. 'Twould be a strange Catalogue of things, that Industry provided and made use

of, about every Loaf of Bread, before it came to our use, if we could trace them; Iron, Wood,

Leather, Bark, Timber, Stone, Bricks, Coals, Lime, Cloth, Dying-Drugs, Pitch, Tar, Masts,

Ropes, and all the Materials made use of in the Ship, that brought any of the Commodities

made use of by any of the Workmen, to any part of the Work, all which, 'twould be almost

impossible, at least too long, to reckon up.

19

44. From all which it is evident, that though the things of Nature are given in common, yet

Man (by being Master of himself, and Proprietor of his own Person, and the actions or

Labour of it) had still in himself the great Foundation of Property; and that which made up

the great part of what he applied to the Support or Comfort of his being, when Invention and

Arts had improved the conveniencies of Life, was perfectly his own, and did not belong in

common to others.

45. Thus Labour, in the Beginning, gave a Right of Property, where-ever any one was

pleased to imploy it, upon what was common, which remained, a long while, the far greater

part, and is yet more than Mankind makes use of. Men, at first, for the most part, contented

themselves with what un-assisted Nature Offered to their Necessities: and though

afterwards, in some parts of the World, (where the Increase of People and Stock, with the

Use of Money) had made Land scarce, and so of some Value, the several Communities

settled the Bounds of their distinct Territories, and by Laws within themselves, regulated the

Properties of the private Men of their Society, and so, by Compact and Agreement, settled

the Property which Labour and Industry began; and the Leagues that have been made

between several States and Kingdoms, either expressly or tacitly disowning all Claim and

Right to the Land in the others Possession, have, by common Consent, given up their

Pretences to their natural common Right, which originally they had to those Countries, and

so have, by positive agreement, settled a Property amongst themselves, in distinct Parts and

parcels of the Earth: yet there are still great Tracts of Ground to be found, which (the

Inhabitants thereof not having joyned with the rest of Mankind, in the consent of the Use of

their common Money) lie waste, and are more than the People, who dwell on it, do, or can

make use of, and so still lie in common. Tho' this can scarce happen amongst that part of

Mankind, that have consented to the use of Money.

46. The greatest part of things really useful to the Life of Man, and such as the necessity of

subsisting made the first Commoners of the World look after, as it doth the Americans now,

are generally things of short duration; such as, if they are not consumed by use, will decay

and perish of themselves: Gold, Silver, and Diamonds, are things, that Fancy or Agreement

20

hath put the Value on, more then real Use, and the necessary Support of Life. Now of those

good things which Nature hath provided in common, every one had a Right (as hath been

said) to as much as he could use, and had a Property in all that he could affect with his

Labour: all that his Industry could extend to, to alter from the State Nature had put it in, was

his. He that gathered a Hundred Bushels of Acorns or Apples, had thereby a Property in

them; they were his Goods as soon as gathered. He was only to look that he used them

before they spoiled; else he took more than his share, and robb'd others. And indeed it was a

foolish thing, as well as dishonest, to hoard up more than he could make use of. If he gave

away a part to any body else, so that it perished not uselesly in his Possession, these he also

made use of. And if he also bartered away Plumbs that would have rotted in a Week, for

Nuts that would last good for his eating a whole Year, he did no injury; he wasted not the

common Stock; destroyed no part of the portion of Goods that belonged to others, so long as

nothing perished uselesly in his hands. Again, if he would give us Nuts for a piece of Metal,

pleased with its colour; or exchanged his Sheep for Shells, or Wool for a sparkling Pebble or

a Diamond, and keep those by him all his Life, he invaded not the Right of others, he might

heap up as much of these durable things as he pleased; the exceeding of the bounds of his

just Property not lying in the largeness of his Possession, but the perishing of any thing

uselesly in it.

47. And thus came in the use of Money, some lasting thing that Men might keep without

spoiling, and that by mutual consent Men would take in exchange for the truly useful, but

perishable Supports of Life.

48. And as different degrees of Industry were apt to give Men Possessions in different

Proportions, so this Invention of Money gave them the opportunity to continue to enlarge

them. For supposing an Island, separated from all possible Commerce with the rest of the

World, wherein there were but a hundred Families, but there were Sheep, Horses and Cows,

with other useful Animals, wholsome Fruits, and Land enough for Corn for a hundred

thousand times as many, but nothing in the Island, either because of its Commonness, or

Perishableness, fit to supply the place of Money: What reason could any one have there to

enlarge his Possessions beyond the use of his Family, and a plentiful supply to its

21

Consumption, either in what their own Industry produced, or they could barter for like

perishable, useful Commodities, with others? Where there is not something both lasting and

scarce, and so valuable to be hoarded up, there Men will not be apt to enlarge their

Possessions of Land, were it never so rich, never so free for them to take. For I ask, What

would a Man value Ten Thousand, or an Hundred Thousand Acres of excellent Land, ready

cultivated, and well stocked too with Cattle, in the middle of the in-land Parts of America,

where he had no hopes of Commerce with other Parts of the World, to draw Money to him

by the Sale of the Product? It would not be worth the inclosing, and we should see him give

up again to the wild Common of Nature, whatever was more than would supply the

Conveniencies of Life to be had there for him and his Family.

49. Thus in the beginning all the World was America, and more so than that is now; for no

such thing as Money was any where known. Find out something that hath the Use and Value

of Money amongst his Neighbours, you shall see the same Man will begin presently to

enlarge his Possessions.

50. But since Gold and Silver, being little useful to the Life of Man in proportion to Food,

Rayment, and Carriage, has its value only from the consent of Men, whereof Labour yet

makes, in great part, the measure, it is plain, that Men have agreed to disproportionate and

unequal Possession of the Earth, they having by a tacit and voluntary consent found out a

way, how a man may fairly possess more land than he himself can use the product of, by

receiving in exchange for the overplus, Gold and Silver, which may be hoarded up without

injury to any one, these metalls not spoileing or decaying in the hands of the possessor. This

partage of things, in an inequality of private possessions, men have made practicable out of

the bounds of Societie, and without compact, only by putting a value on gold and silver and

tacitly agreeing in the use of Money. For in Governments the Laws regulate the right of

property, and the possession of land is determined by positive constitutions.

51. And thus, I think, it is very easie to conceive without any difficulty, how Labour could at

first begin a title of Property in the common things of Nature, and how the spending it upon

our uses bounded it. So that there could then be no reason of quarrelling about Title, nor any

22

doubt about the largeness of Possession it gave. Right and conveniency went together; for as

a Man had a Right to all he could imploy his Labour upon, so he had no temptation to labour

for more than he could make use of. This left no room for Controversie about the Title, nor

for Incroachment on the Right of others; what Portion a Man carved to himself, was easily

seen; and it was useless as well as dishonest to carve himself too much, or take more than he

needed.

23

John Trenchard, Cato’s Letters , no. 68, 3 March 1721

Online Source:


Print Source:

Trenchard, John, and Gordon, Thomas. Cato's Letters. In The English Libertarian Heritage, edited by David L. Jacobson. American Heritage Series. Indianapolis: Bobbs-Merrill, 1965.Document pp. 177-78.

Document:

John Trenchard, Cato's Letters, no. 68, 3 March 1721

To live securely, happily, and independently, is the End and Effect of Liberty; and it is the

Ambition of all Men to live agreeably to their own Humours and Discretion. Nor did ever

any Man that could live satisfactorily without a Master, desire to live under one; and real or

fancied Necessity alone makes Men the Servants, Followers, and Creatures of one another.

And therefore all Men are animated by the Passion of acquiring and defending Property,

because Property is the best Support of that Independency, so passionately desired by all

Men. Even Men the most dependent have it constantly in their Heads and their Wishes, to

become independent one Time or other; and the Property which they are acquiring, or mean

to acquire by that Dependency, is intended to bring them out of it, and to procure them an

agreeable Independency. And as Happiness is the Effect of Independency, and

Independency the Effect of Property; so certain Property is the Effect of Liberty alone, and

can only be secured by the Laws of Liberty; Laws which are made by Consent, and cannot

be repealed without it.

24


All these Blessings, therefore, are only the Gifts and Consequences of Liberty, and only to

be found in free Countries, where Power is fixed on one Side, and Property secured on the

other; where the one cannot break Bounds without Check, Penalties or Forfeiture, nor the

other suffer Diminution without Redress; where the People have no Masters but the Laws,

and such as the Laws appoint; where both Laws and Magistracy are formed by the People or

their Deputies; and no Demands are made upon them, but what are made by the Law, and

they know to a Penny what to pay before it is asked; where they that exact from them more

than the Law allows, are punishable by the Law; and where the Legislators are equally

bound by their own Acts, equally involved in the Consequences.

25

Bernard Mandeville, The Grumbling Hive; Or, Knaves Turn’d Honest (1705)

Online Source:

Jack Lynch, Rutgers UniversityHTTP://ANDROMEDA.RUTGERS.EDU/~JLYNCH/TEXTS/HIVE.HTML

Print Source:The text is transcribed from the 1705 edition of The Grumbling Hive. A few short passages that are illegible in that edition are supplied from The Fable of the Bees (London, 1714).

Document:

Bernard Mandeville, The Grumbling Hive; Or, Knaves Turn’d Honest (1705)

A Spacious Hive well stock'd with Bees,

That lived in Luxury and Ease;

And yet as fam'd for Laws and Arms,

As yielding large and early Swarms;

Was counted the great Nursery [5]

Of Sciences and Industry.

No Bees had better Government,

More Fickleness, or less Content.

They were not Slaves to Tyranny,

Nor ruled by wild Democracy; [10]

But Kings, that could not wrong, because

Their Power was circumscrib'd by Laws.

These Insects lived like Men, and all

Our Actions they perform'd in small:

They did whatever's done in Town, [15]

26

http://andromeda.rutgers.edu/~jlynch/Texts/hive.html

And what belongs to Sword, or Gown:

Tho' th'Artful Works, by nible Slight;

Of minute Limbs, 'scaped Human Sight

Yet we've no Engines; Labourers,

Ships, Castles, Arms, Artificers, [20]

Craft, Science, Shop, or Instrument,

But they had an Equivalent:

Which, since their Language is unknown,

Must be call'd, as we do our own.

As grant, that among other Things [25]

They wanted Dice, yet they had Kings;

And those had Guards; from whence we may

Justly conclude, they had some Play;

Unless a Regiment be shewn

Of Soldiers, that make use of none. [30]

Vast Numbers thronged the fruitful Hive;

Yet those vast Numbers made 'em thrive;

Millions endeavouring to supply

Each other's Lust and Vanity;

Whilst other Millions were employ'd, [35]

To see their Handy-works destroy'd;

They furnish'd half the Universe;

Yet had more Work than Labourers.

Some with vast Stocks, and little Pains

Jump'd into Business of great Gains; [40]

And some were damn'd to Sythes and Spades,

And all those hard laborious Trades;

Where willing Wretches daily sweat,

And wear out Strength and Limbs to eat:

Whilst others follow'd Mysteries, [45]

27

To which few Folks bind Prentices;

That want no Stock, but that of Brass,

And may set up without a Cross;

As Sharpers, Parasites, Pimps, Players,

Pick-Pockets, Coiners, Quacks, Sooth-Sayers, [50]

And all those, that, in Enmity

With down-right Working, cunningly

Convert to their own Use the Labour

Of their good-natur'd heedless Neighbour:

These were called Knaves; but, bar the Name, [55]

The grave Industrious were the Same.

All Trades and Places knew some Cheat,

No Calling was without Deceit.

The Lawyers, of whose Art the Basis

Was raising Feuds and splitting Cases, [60]

Opposed all Registers, that Cheats

Might make more Work with dipt Estates;

As were't unlawful, that one's own,

Without a Law-Suit, should be known.

They kept off Hearings wilfully, [65]

To finger the retaining Fee;

And to defend a wicked Cause,

Examin'd and survey'd the Laws;

As Burglars Shops and Houses do;

To find out where they'd best break through. [70]

Physicians valued Fame and Wealth

Above the drooping Patient's Health,

Or their own Skill: The greatest Part

Study'd, instead of Rules of Art,

28

Grave pensive Looks, and dull Behaviour; [75]

To gain th'Apothecary's Favour,

The Praise of Mid wives, Priests and all,

That served at Birth, or Funeral;

To bear with th'ever-talking Tribe,

And hear my Lady's Aunt prescribe; [80]

With formal Smile, and kind How d'ye,

To fawn on all the Family;

And, which of all the greatest Curse is,

T'endure th'Impertinence of Nurses.

Among the many Priests of JOVE, [85]

Hir'd to draw Blessings from Above,

Some few were learn'd and eloquent,

But Thousands hot and ignorant:

Yet all past Muster, that could hide

Their Sloth, Lust, Avarice and Pride; [90]

For which, they were as famed, as Taylors

For Cabbage; or for Brandy, Sailors:

Some meagre look'd, and meanly clad

Would mystically pray for Bread,

Meaning by that an ample Store, [95]

Yet lit'rally receiv'd no more;

And, whilst these holy Drudges starv'd,

Some lazy Ones, for which they serv'd,

Indulg'd their Ease, with all the Graces

Of Health and Plenty in their Faces. [100]

The Soldiers, that were forced to fight,

If they survived, got Honour by't;

Tho' some, that shunn'd the bloody Fray,

29

Had Limbs shot off, that ran away:

Some valiant Gen'rals fought the Foe; [105]

Others took Bribes to let them go:

Some ventur'd always, where 'twas warm;

Lost now a Leg, and then an Arm;

Till quite disabled, and put by,

They lived on half their Salary; [110]

Whilst others never came in Play,

And staid at Home for Double Pay.

Their Kings were serv'd; but Knavishly

Cheated by their own Ministry;

Many, that for their Welfare slaved, [115]

Robbing the very Crown they saved:

Pensions were small, and they lived high,

Yet boasted of their Honesty.

Calling, whene'er they strain'd their Right,

The slipp'ry Trick a Perquisite; [120]

And, when Folks understood their Cant,

They chang'd that for Emolument;

Unwilling to be short, or plain,

In any thing concerning Gain:

For there was not a Bee, but would [125]

Get more, I won't say, than he should;

But than he dared to let them know,

That pay'd for't; as your Gamesters do,

That, tho' at fair Play, ne'er will own

Before the Losers what they've won. [130]

But who can all their Frauds repeat!

The very Stuff, which in the Street

30

They sold for Dirt t'enrich the Ground,

Was often by the Buyers sound

Sophisticated with a Quarter [135]

Of Good-for-nothing, Stones and Mortar;

Tho' Flail had little Cause to mutter,

Who sold the other Salt for Butter.

Justice her self, famed for fair Dealing,

By Blindness had not lost her Feeling; [140]

Her Left Hand, which the Scales should hold,

Had often dropt 'em, bribed with Gold;

And, tho' she seem'd impartial,

Where Punishment was corporal,

Pretended to a reg'lar Course, [145]

In Murther, and all Crimes of Force;

Tho' some, first Pillory'd for Cheating,

Were hang'd in Hemp of their own beating;

Yet, it was thought, the Sword the bore

Check'd but the Desp'rate and the Poor; [150]

That, urg'd by mere Necessity,

Were tied up to the wretched Tree

For Crimes, which not deserv'd that Fate,

But to secure the Rich, and Great.

Thus every Part was full of Vice, [155]

Yet the whole Mass a Paradice;

Flatter'd in Peace, and fear'd in Wars

They were th'Esteem of Foreigners,

And lavish of their Wealth and Lives,

The Ballance of all other Hives. [160]

Such were the Blessings of that State;

31

Their Crimes conspired to make 'em Great;

And Vertue, who from Politicks

Had learn'd a Thousand cunning Tricks,

Was, by their happy Influence, [165]

Made Friends with Vice: And ever since

The worst of all the Multitude

Did something for the common Good.

This was the State's Craft, that maintain'd

The Whole, of which each Part complain'd: [170]

This, as in Musick Harmony,

Made Jarrings in the Main agree;

Parties directly opposite

Assist each oth'r, as 'twere for Spight;

And Temp'rance with Sobriety [175]

Serve Drunkenness and Gluttonny.

The Root of evil Avarice,

That damn'd ill-natur'd baneful Vice,

Was Slave to Prodigality,

That Noble Sin; whilst Luxury. [180]

Employ'd a Million of the Poor,

And odious Pride a Million more

Envy it self, and Vanity

Were Ministers of Industry;

Their darling Folly, Fickleness [185]

In Diet, Furniture, and Dress,

That strange, ridic'lous Vice, was made

The very Wheel, that turn'd the Trade.

Their Laws and Cloaths were equally

Objects of Mutability; [190]

32

For, what was well done for a Time,

In half a Year became a Crime;

Yet whilst they alter'd thus their Laws,

Still finding and correcting Flaws,

They mended by Inconstancy [195]

Faults, which no Prudence could foresee.

Thus Vice nursed Ingenuity,

Which join'd with Time; and Industry

Had carry'd Life's Conveniencies,

It's real Pleasures, Comforts, Ease, [200]

To such a Height, the very Poor

Lived better than the Rich before;

And nothing could be added more:

How vain is Mortals Happiness!

Had they but known the Bounds of Bliss; [205]

And, that Perfection here below

Is more, than Gods can well bestow,

The grumbling Brutes had been content

With Ministers and Government.

But they, at every ill Success, [210]

Like Creatures lost without Redress,

Cursed Politicians, Armies, Fleets;

Whilst every one cry'd, Damn the Cheats,

And would, tho' Conscious of his own,

In Others barb'rously bear none. [215]

One, that had got a Princely Store,

By cheating Master, King, and Poor,

Dared cry aloud; The Land must sink

33

For all its Fraud; And whom d'ye think

The Sermonizing Rascal chid? [220]

A Glover that sold Lamb for Kid.

The last Thing was not done amiss,

Or cross'd the Publick Business;

But all the Rogues cry'd brazenly,

Good Gods, had we but Honesty! [225]

MERC'RY smiled at th'Impudence;

And Others call'd it want of Sence,

Always to rail at what they loved:

But JOVE, with Indignation moved,

At last in Anger swore, he'd rid [230]

The bawling Hive of Fraud, and did.

The very Moment it departs,

And Honsty fills all their Hearts;

There shews 'em, like the Instructive Tree,

Those Crimes, which they're ashamed to see? [235]

Which now in Silence they confess,

By Blushing at their Uglyness;

Like Children, that would hide their Faults,

And by their Colour own their Thoughts;

Imag'ning, when they're look'd upon, [240]

That others see, what they have done.

But, Oh ye Gods! What Consternation,

How vast and sudden was the Alteration!

In half an Hour, the Nation round,

Meat fell a Penny in the Pound. [245]

The Mask Hypocrisie's flung down,

From the great Statesman to the Clown:

34

And some, in borrow'd Looks well known,

Appear'd like Strangers in their own.

The Bar was silent from that Day; [250]

For now the willing Debtors pay,

Even what's by Creditors forgot;

Who quitted them, who had it not.

Those, that were in the Wrong, stood mute,

And dropt the patch'd vexatious Suit. [255]

On which, since nothing less can thrive,

Than Lawyers in an honest Hive,

All, except those, that got enough,

With Ink-horns by their Sides trooped off.

Justice hang'd some, set others free; [260]

And, after Goal-delivery,

Her Presence be'ng no more requier'd,

With all her Train, and Pomp retir'd.

First marched 'some Smiths, with Locks and Grates,

Fetters, and Doors with Iron-Plates; [265]

Next Goalers, Turnkeys, and Assistants:

Before the Goddess, at some distance,

Her cheif and faithful Minister

Squire Catch, the Laws great Finisher,

Bore not th'imaginary Sword, [270]

But his own Tools, an Ax and Cord;

Then on a Cloud the Hood-wink'd fair

Justice her self was push'd by Air:

About her Chariot, and behind,

Were Sergeants, 'Bums of every kind, [275]

Tip-Staffs, and all those Officers,

That squeese a Living out of Tears.

35

Tho' Physick liv'd, whilst Folks were ill,

None would prescribe, but Bees of Skill;

Which, through the Hive dispers'd so wide, [280]

That none of 'em had need to ride,

Waved vain Disputes; and strove to free

The Patients of their Misery;

Left Drugs in cheating Countries grown,

And used the Product of their own, [285]

Knowing the Gods sent no Disease

To Nations without remedies.

Their Clergy rouz'd from Laziness,

Laid not their Charge on Journey-Bees;

But serv'd themselves, exempt from Vice, [290]

The Gods with Pray'r and Sacrifice;

All those, that were unfit, or knew,

Their Service might be spared, withdrew;

Nor was their Business for so many,

(If th'Honest stand in need of any.) [295]

Few only with the High-Priest staid,

To whom the rest Obedience paid:

Himself, employ'd in holy Cares;

Resign'd to others State Affairs:

He chased no Starv'ling from his Door, [300]

Nor pinch'd the Wages of the Poor:

But at his House the Hungry's fed,

The Hireling finds unmeasur'd Bread,

The needy Trav'ler Board and Bed.

36

Among the King's great Ministers, [305]

And all th'inferiour Officers

The Change was great; for frugally

They now lived on their Salary.

That a poor Bee should Ten times come

To ask his Due, a trifling Sum, [310]

And by some well hir'd Clerk be made,

To give a Crown, or ne'er be paid;

Would now be called a down-right Cheat,

Tho' formerly a Perquisite.

All Places; managed first by Three, [315]

Who watch'd each other's Knavery,

And often for a Fellow-feeling,

Promoted, one anothers Stealing,

Are happily supply'd by one;

By which some Thousands more are gone. [320]

No Honour now could be content,

To live, and owe for what was spent.

Liveries in Brokers Shops are hung,

They part with Coaches for a Song;

Sell Stately Horses by whole Sets; [325]

And Country Houses to pay Debts.

Vain Cost is shunn'd as much as Fraud;

They have no forces kept Abroad;

Laugh at the Esteem of Foreigners,

And empty Glory got by Wars; [330]

They fight but for their Country's Sake,

When Right or Liberty's at Stake.

37

Now mind the glorious Hive, and see,

How Honesty and Trade agree:

The Shew is gone, it thins apace; [335]

And looks with quite another Face,

For 'twas not only that they went,

By whom vast Sums were Yearly spent;

But Multitudes, that lived on them,

Were daily forc'd to do the same. [340]

In vain to other Trades they'd fly;

All were o're-stocked accordingly.

The Price of Land, and Houses falls

Mirac'lous Palaces, whose Walls,

Like those of THEBES, were raised by Play, [345]

Are to be let; whilst the once gay,

Well-seated Houshould Gods would be

More pleased t'expire in Flames, than see;

The mean Inscription on the Door

Smile at the lofty Ones they bore. [350]

The Building Trace is quite destroy'd,

Artificers are not employ'd;

No Limner for his Art is famed;

Stone-cutters, Garvers are not named.

Those, that remain'd, grown temp'rate, strive, [355]

So how to spend; but how to live;

And, when they paid the Tavern Score,

Resolv'd to enter it no more:

No Vintners Jilt in all the Hive

Could wear now Cloth of Gold and thrive; [360]

Nor TORCOL; such vast sums advance,

38

For BURGUNDY and ORTELANS;

The Courtier's gone, that with his Miss

Supp'd at his House on CHRISTMASS Peas;

Spending as much in two Hours stay, [365]

As keeps a Troop of Horse a Day.

The Haughty CHLOE; to live Great,

Had made her Husband rob the State:

But now she sells her Furniture,

Which the INDIES had been ransack'd for; [370]

Contracts the expensive Bill of Fare,

And wears her strong Suit a whole Year:

The slight and fickle Age is past;

And Cloaths, as wel as Fashions last.

Weavers that ioyn'd rich Silk with Plate, [375]

And all the Trades subordinate,

Are gone. Still Peace and Plenty reign,

And every thing is cheap, tho' plain;

Kind Nature, free from Gard'ners Force,

Allows all Fruits in her own Course; [380]

But Rarities cannot be had,

Where Pains to get 'em are not paid.

As Pride and Luxury decrease,

So by degrees they leave the Seas,

Not Merchants now; but Companies [385]

Remove whole Manufacturies.

All Arts and Crafts neglected lie;

Content the Bane of Industry,

Makes 'em admire their homely Store,

And neither seek, nor covet more. [390]

39

So few in the vast Hive remain;

The Hundredth part they can't maintain

Against th'Insults of numerous Foes;

Whom yet they valiantly oppose;

Till some well-fenced Retreat is found; [395]

And here they die, or stand their Ground,

No Hireling in their Armies known;

But bravely fighting for their own;

Their Courage and Integrity

At last were crown'd with Victory. [400]

They triumph'd not without their Cost,

For many Thousand Bees were lost.

Hard'ned with Toils, and Exercise

They counted Ease it self a Vice;

Which so improv'd their Temperance, [405]

That to avoid Extravagance,

They flew into a hollow tree,

Blest with content and Honesty.

THE M O R A L.

THEN LEAVE COMPLAINTS: FOOLS ONLY STRIVE

TO MAKE A GREAT AN HONEST HIVE. [410]

T'ENJOY THE WORLD'S CONVENIENCIES,

BE FAMED IN WAR, YET LIVE IN EASE

WITHOUT GREAT VICES, IS A VAIN

EUTOPIA SEATED IN THE BRAIN.

FRAUD, LUXURY, AND PRIDE MUST LIVE; [415]

WHILST WE THE BENEFITS RECEIVE.

HUNGER'S A DREADFUL PLAGUE NO DOUBT,

40

YET WHO DIGESTS OR THRIVES WITHOUT?

DO WE NOT OWE THE GROWTH OF WINE

TO THE DRY, CROOKED, SHABBY VINE? [420]

WHICH, WHIST ITS SHUTES NEGLECTED STOOD,

CHOAK'D OTHER PLANTS, AND RAN TO WOOD;

BUT BLEST US WITH HIS NOBLE FRUIT;

AS SOON AS IT WAS TIED, AND CUT:

SO VICE IS BENEFICIAL FOUND, [425]

WHEN IT'S BY JUSTICE LOPT AND BOUND;

NAY, WHERE THE PEOPLE WOULD BE GREAT,

AS NECESSARY TO THE STATE,

AT HUNGER IS TO MAKE 'EM EAT.

BARE VERTUE CAN'T MAKE NATIONS LIVE [430]

IN SPLENDOUR; THEY, THAT WOULD REVIVE

A GOLDEN AGE, MUST BE AS FREE,

FOR ACORNS, AS FOR HONESTY.

41

William Blackstone, Commentaries 1:134-35, 140-141 (1765)

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Document:

William Blackstone, Commentaries 1:134--35, 140-41 (1765)

III. The third absolute right, inherent in every Englishman, is that of property: which

consists in the free use, enjoyment, and disposal of all his acquisitions, without any control

or diminution, save only by the laws of the land. The original of private property is probably

founded in nature, as will be more fully explained in the second book of the ensuing

commentaries: but certainly the modifications under which we at present find it, the method

of conserving it in the present owner, and of translating it from man to man, are entirely

derived from society; and are some of those civil advantages, in exchange for which every

individual has resigned a part of his natural liberty. The laws of England are therefore, in

point of honor and justice, extremely watchful in ascertaining and protecting this right. Upon

this principle the great charter has declared that no freeman shall be disseised, or divested, of

his freehold, or of his liberties, or free customs, but by the judgment of his peers, or by the

law of the land. And by a variety of antient statutes it is enacted, that no man's lands or

goods shall be seised into the king's hands, against the great charter, and the law of the land;

and that no man shall be disinherited, nor put out of his franchises or freehold, unless he be

42


duly brought to answer, and be forejudged by course of law; and if any thing be done to the

contrary, it shall be redressed, and holden for none.

So great moreover is the regard of the law for private property, that it will not authorize the

least violation of it; no, not even for the general good of the whole community. If a new

road, for instance, were to be made through the grounds of a private person, it might perhaps

be extensively beneficial to the public; but the law permits no man, or set of men, to do this

without consent of the owner of the land. In vain may it be urged, that the good of the

individual ought to yield to that of the community; for it would be dangerous to allow any

private man, or even any public tribunal, to be the judge of this common good, and to decide

whether it be expedient or no. Besides, the public good is in nothing more essentially

interested, than in the protection of every individual's private rights, as modelled by the

municipal law. In this, and similar cases the legislature alone can, and indeed frequently

does, interpose, and compel the individual to acquiesce. But how does it interpose and

compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but

by giving him a full indemnification and equivalent for the injury thereby sustained. The

public is now considered as an individual, treating with an individual for an exchange. All

that the legislature does is to oblige the owner to alienate his possessions for a reasonable

price; and even this is an exertion of power, which the legislature indulges with caution, and

which nothing but the legislature can perform.

Nor is this the only instance in which the law of the land has postponed even public

necessity to the sacred and inviolable rights of private property. For no subject of England

can be constrained to pay any aids or taxes, even for the defence of the realm or the support

of government, but such as are imposed by his own consent, or that of his representatives in

parliament.

. . . . .

In these several articles consist the rights, or, as they are frequently termed, the liberties of

Englishmen: liberties more generally talked of, than thoroughly understood; and yet highly

43

necessary to be perfectly known and considered by every man of rank or property, lest his

ignorance of the points whereon it is founded should hurry him into faction and

licentiousness on the one hand, or a pusillanimous indifference and criminal submission on

the other. And we have seen that these rights consist, primarily, in the free enjoyment of

personal security, of personal liberty, and of private property. So long as these remain

inviolate, the subject is perfectly free; for every species of compulsive tyranny and

oppression must act in opposition to one or other of these rights, having no other object upon

which it can possibly be employed. To preserve these from violation, it is necessary that the

constitution of parliaments be supported in it's full vigor; and limits certainly known, be set

to the royal prerogative. And, lastly, to vindicate these rights, when actually violated or

attacked, the subjects of England are entitled, in the first place, to the regular administration

and free course of justice in the courts of law; next to the right of petitioning the king and

parliament for redress of grievances; and lastly to the right of having and using arms for

self-preservation and defense. And all these rights and liberties it is our birthright to enjoy

entire; unless where the laws of our country have laid them under necessary restraints.

Restraints in themselves so gentle and moderate, as will appear upon farther enquiry, that no

man of sense or probity would wish to see them slackened. For all of us have it in our choice

to do every thing that a good man would desire to do; and are restrained from nothing, but

what would be pernicious either to ourselves or our fellow citizens. So that this review of

our situation may fully justify the observation of a learned French author, who indeed

generally both thought and wrote in the spirit of genuine freedom; and who hath not

scrupled to profess, even in the very bosom of his native country, that the English is the only

nation in the world, where political or civil liberty is the direct end of it's constitution.

Recommending therefore to the student in our laws a farther and more accurate search into

this extensive and important title, I shall close my remarks upon it with the expiring wish of

the famous father Paul to his country, "Esto perpetua!"

44

James Madison, “Property,” 29 March 1792

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Document:

James Madison, “Property,” 29 March 1792

This term in its particular application means "that dominion which one man claims and

exercises over the external things of the world, in exclusion of every other individual."

In its larger and juster meaning, it embraces every thing to which a man may attach a value

and have a right; and which leaves to every one else the like advantage.

In the former sense, a man's land, or merchandize, or money is called his property.

In the latter sense, a man has a property in his opinions and the free communication of them.

He has a property of peculiar value in his religious opinions, and in the profession and

practice dictated by them.

He has a property very dear to him in the safety and liberty of his person.

45


He has an equal property in the free use of his faculties and free choice of the objects on

which to employ them.

In a word, as a man is said to have a right to his property, he may be equally said to have a

property in his rights.

Where an excess of power prevails, property of no sort is duly respected. No man is safe in

his opinions, his person, his faculties, or his possessions.

Where there is an excess of liberty, the effect is the same, tho' from an opposite cause.

Government is instituted to protect property of every sort; as well that which lies in the

various rights of individuals, as that which the term particularly expresses. This being the

end of government, that alone is a just government, which impartially secures to every man,

whatever is his own.

According to this standard of merit, the praise of affording a just securing to property,

should be sparingly bestowed on a government which, however scrupulously guarding the

possessions of individuals, does not protect them in the enjoyment and communication of

their opinions, in which they have an equal, and in the estimation of some, a more valuable

property.

More sparingly should this praise be allowed to a government, where a man's religious rights

are violated by penalties, or fettered by tests, or taxed by a hierarchy. Conscience is the most

sacred of all property; other property depending in part on positive law, the exercise of that,

being a natural and unalienable right. To guard a man's house as his castle, to pay public and

enforce private debts with the most exact faith, can give no title to invade a man's

conscience which is more sacred than his castle, or to withhold from it that debt of

protection, for which the public faith is pledged, by the very nature and original conditions

of the social pact.

46

That is not a just government, nor is property secure under it, where the property which a

man has in his personal safety and personal liberty, is violated by arbitrary seizures of one

class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang,

would be in his proper functions in Turkey or Indostan, under appellations proverbial of the

most compleat despotism.

That is not a just government, nor is property secure under it, where arbitrary restrictions,

exemptions, and monopolies deny to part of its citizens that free use of their faculties, and

free choice of their occupations, which not only constitute their property in the general sense

of the word; but are the means of acquiring property strictly so called. What must be the

spirit of legislation where a manufacturer of linen cloth is forbidden to bury his own child in

a linen shroud, in order to favour his neighbour who manufactures woolen cloth; where the

manufacturer and wearer of woolen cloth are again forbidden the oeconomical use of

buttons of that material, in favor of the manufacturer of buttons of other materials!

A just security to property is not afforded by that government, under which unequal taxes

oppress one species of property and reward another species: where arbitrary taxes invade the

domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the

keenness and competitions of want are deemed an insufficient spur to labor, and taxes are

again applied, by an unfeeling policy, as another spur; in violation of that sacred property,

which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved

to him, in the small repose that could be spared from the supply of his necessities.

If there be a government then which prides itself in maintaining the inviolability of property;

which provides that none shall be taken directly even for public use without indemnification

to the owner, and yet directly violates the property which individuals have in their opinions,

their religion, their persons, and their faculties; nay more, which indirectly violates their

property, in their actual possessions, in the labor that acquires their daily subsistence, and in

the hallowed remnant of time which ought to relieve their fatigues and soothe their cares, the

influence [inference?] will have been anticipated, that such a government is not a pattern for

the United States.

47

If the United States mean to obtain or deserve the full praise due to wise and just

governments, they will equally respect the rights of property, and the property in rights: they

will rival the government that most sacredly guards the former; and by repelling its example

in violating the latter, will make themselves a pattern to that and all other governments.

48

Thomas Jefferson to Isaac McPherson, 13 August 1813

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Document:

Thomas Jefferson to Isaac McPherson, 13 August 1813

It has been pretended by some, (and in England especially,) that inventors have a natural and

exclusive right to their inventions, and not merely for their own lives, but inheritable to their

heirs. But while it is a moot question whether the origin of any kind of property is derived

from nature at all, it would be singular to admit a natural and even an hereditary right to

inventors. It is agreed by those who have seriously considered the subject, that no individual

has, of natural right, a separate property in an acre of land, for instance. By an universal law,

indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is

the property for the moment of him who occupies it, but when he relinquishes the

occupation, the property goes with it. Stable ownership is the gift of social law, and is given

late in the progress of society. It would be curious then, if an idea, the fugitive fermentation

of an individual brain, could, of natural right, be claimed in exclusive and stable property. If

nature has made any one thing less susceptible than all others of exclusive property, it is the

action of the thinking power called an idea, which an individual may exclusively possess as

long as he keeps it to himself; but the moment it is divulged, it forces itself into the

possession of every one, and the receiver cannot dispossess himself of it. Its peculiar

49


character, too, is that no one possesses the less, because every other possesses the whole of

it. He who receives an idea from me, receives instruction himself without lessening mine; as

he who lights his taper at mine, receives light without darkening me. That ideas should

freely spread from one to another over the globe, for the moral and mutual instruction of

man, and improvement of his condition, seems to have been peculiarly and benevolently

designed by nature, when she made them, like fire, expansible over all space, without

lessening their density in any point, and like the air in which we breathe, move, and have our

physical being, incapable of confinement or exclusive appropriation. Inventions then cannot,

in nature, be a subject of property. Society may give an exclusive right to the profits arising

from them, as an encouragement to men to pursue ideas which may produce utility, but this

may or may not be done, according to the will and convenience of the society, without claim

or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England

was, until we copied her, the only country on earth which ever, by a general law, gave a

legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a

great case, and by a special and personal act, but, generally speaking, other nations have

thought that these monopolies produce more embarrassment than advantage to society; and

it may be observed that the nations which refuse monopolies of invention, are as fruitful as

England in new and useful devices.

50

Thomas Jefferson to John Adams, 28 October 1813

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The Adams-Jefferson Letters: The Complete Correspondence between Thomas Jefferson and Abigail and John Adams. Edited by Lester J. Cappon. 2 vols. Chapel Hill: University of North Carolina Press for the Institute of Early American History and Culture, Williamsburg, Virginia, 1959.Document: Volume 2, pp. 387-92.

Document:

Thomas Jefferson to John Adams, 28 October 1813

DEAR SIR,

-- According to the reservation between us, of taking up one of the subjects of our

correspondence at a time, I turn to your letters of Aug. 16. and Sep. 2.

The passage you quote from Theognis, I think has an Ethical, rather than a political object.

The whole piece is a moral exhortation, {parainesis}, and this passage particularly seems to

be a reproof to man, who, while with his domestic animals he is curious to improve the race

by employing always the finest male, pays no attention to the improvement of his own race,

but intermarries with the vicious, the ugly, or the old, for considerations of wealth or

ambition. It is in conformity with the principle adopted afterwards by the Pythagoreans, and

expressed by Ocellus in another form. {Peri de tes ek ton allelon anthropon geneseos} etc. --

{oych edones eneka e} {mixis}. Which, as literally as intelligibility will admit, may be thus

translated. `Concerning the interprocreation of men, how, and of whom it shall be, in a

perfect manner, and according to the laws of modesty and sanctity, conjointly, this is what I 51

http://www.let.rug.nl/usa/P/tj3/writings/brf/jefl223.htm

think right. First to lay it down that we do not commix for the sake of pleasure, but of the

procreation of children. For the powers, the organs and desires for coition have not been

given by god to man for the sake of pleasure, but for the procreation of the race. For as it

were incongruous for a mortal born to partake of divine life, the immortality of the race

being taken away, god fulfilled the purpose by making the generations uninterrupted and

continuous. This therefore we are especially to lay down as a principle, that coition is not for

the sake of pleasure.' But Nature, not trusting to this moral and abstract motive, seems to

have provided more securely for the perpetuation of the species by making it the effect of

the oestrum implanted in the constitution of both sexes. And not only has the commerce of

love been indulged on this unhallowed impulse, but made subservient also to wealth and

ambition by marriages without regard to the beauty, the healthiness, the understanding, or

virtue of the subject from which we are to breed. The selecting the best male for a Haram of

well chosen females also, which Theognis seems to recommend from the example of our

sheep and asses, would doubtless improve the human, as it does the brute animal, and

produce a race of veritable {aristoi} ["aristocrats"]. For experience proves that the moral and

physical qualities of man, whether good or evil, are transmissible in a certain degree from

father to son. But I suspect that the equal rights of men will rise up against this privileged

Solomon, and oblige us to continue acquiescence under the {'Amayrosis geneos aston} ["the

degeneration of the race of men"] which Theognis complains of, and to content ourselves

with the accidental aristoi produced by the fortuitous concourse of breeders. For I agree with

you that there is a natural aristocracy among men. The grounds of this are virtue and talents.

Formerly bodily powers gave place among the aristoi. But since the invention of gunpowder

has armed the weak as well as the strong with missile death, bodily strength, like beauty,

good humor, politeness and other accomplishments, has become but an auxiliary ground of

distinction. There is also an artificial aristocracy founded on wealth and birth, without either

virtue or talents; for with these it would belong to the first class. The natural aristocracy I

consider as the most precious gift of nature for the instruction, the trusts, and government of

society. And indeed it would have been inconsistent in creation to have formed man for the

social state, and not to have provided virtue and wisdom enough to manage the concerns of

the society. May we not even say that that form of government is the best which provides

the most effectually for a pure selection of these natural aristoi into the offices of

52

government? The artificial aristocracy is a mischievous ingredient in government, and

provision should be made to prevent it's ascendancy. On the question, What is the best

provision, you and I differ; but we differ as rational friends, using the free exercise of our

own reason, and mutually indulging it's errors. You think it best to put the Pseudo-aristoi

into a separate chamber of legislation where they may be hindered from doing mischief by

their coordinate branches, and where also they may be a protection to wealth against the

Agrarian and plundering enterprises of the Majority of the people. I think that to give them

power in order to prevent them from doing mischief, is arming them for it, and increasing

instead of remedying the evil. For if the coordinate branches can arrest their action, so may

they that of the coordinates. Mischief may be done negatively as well as positively. Of this a

cabal in the Senate of the U.S. has furnished many proofs. Nor do I believe them necessary

to protect the wealthy; because enough of these will find their way into every branch of the

legislation to protect themselves. From 15. to 20. legislatures of our own, in action for 30.

years past, have proved that no fears of an equalisation of property are to be apprehended

from them.

I think the best remedy is exactly that provided by all our constitutions, to leave to the

citizens the free election and separation of the aristoi from the pseudo-aristoi, of the wheat

from the chaff. In general they will elect the real good and wise. In some instances, wealth

may corrupt, and birth blind them; but not in sufficient degree to endanger the society.

It is probable that our difference of opinion may in some measure be produced by a

difference of character in those among whom we live. From what I have seen of

Massachusets and Connecticut myself, and still more from what I have heard, and the

character given of the former by yourself, [vol. 1. pa. 111.] who know them so much better,

there seems to be in those two states a traditionary reverence for certain families, which has

rendered the offices of the government nearly hereditary in those families. I presume that

from an early period of your history, members of these families happening to possess virtue

and talents, have honestly exercised them for the good of the people, and by their services

have endeared their names to them.

53

In coupling Connecticut with you, I mean it politically only, not morally. For having made

the Bible the Common law of their land they seem to have modelled their morality on the

story of Jacob and Laban. But altho' this hereditary succession to office with you may in

some degree be founded in real family merit, yet in a much higher degree it has proceeded

from your strict alliance of church and state. These families are canonised in the eyes of the

people on the common principle `you tickle me, and I will tickle you.' In Virginia we have

nothing of this. Our clergy, before the revolution, having been secured against rivalship by

fixed salaries, did not give themselves the trouble of acquiring influence over the people. Of

wealth, there were great accumulations in particular families, handed down from generation

to generation under the English law of entails. But the only object of ambition for the

wealthy was a seat in the king's council. All their court then was paid to the crown and it's

creatures; and they Philipised in all collisions between the king and people. Hence they were

unpopular; and that unpopularity continues attached to their names. A Randolph, a Carter, or

a Burwell must have great personal superiority over a common competitor to be elected by

the people, even at this day.

At the first session of our legislature after the Declaration of Independance, we passed a law

abolishing entails. And this was followed by one abolishing the privilege of Primogeniture,

and dividing the lands of intestates equally among all their children, or other representatives.

These laws, drawn by myself, laid the axe to the root of Pseudo-aristocracy. And had

another which I prepared been adopted by the legislature, our work would have been

compleat. It was a Bill for the more general diffusion of learning. This proposed to divide

every county into wards of 5. or 6. miles square, like your townships; to establish in each

ward a free school for reading, writing and common arithmetic; to provide for the annual

selection of the best subjects from these schools who might recieve at the public expence a

higher degree of education at a district school; and from these district schools to select a

certain number of the most promising subjects to be compleated at an University, where all

the useful sciences should be taught. Worth and genius would thus have been sought out

from every condition of life, and compleatly prepared by education for defeating the

competition of wealth and birth for public trusts.

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My proposition had for a further object to impart to these wards those portions of self-

government for which they are best qualified, by confiding to them the care of their poor,

their roads, police, elections, the nomination of jurors, administration of justice in small

cases, elementary exercises of militia, in short, to have made them little republics, with a

Warden at the head of each, for all those concerns which, being under their eye, they would

better manage than the larger republics of the county or state. A general call of ward-

meetings by their Wardens on the same day thro' the state would at any time produce the

genuine sense of the people on any required point, and would enable the state to act in mass,

as your people have so often done, and with so much effect, by their town meetings. The law

for religious freedom, which made a part of this system, having put down the aristocracy of

the clergy, and restored to the citizen the freedom of the mind, and those of entails and

descents nurturing an equality of condition among them, this on Education would have

raised the mass of the people to the high ground of moral respectability necessary to their

own safety, and to orderly government; and would have compleated the great object of

qualifying them to select the veritable aristoi, for the trusts of government, to the exclusion

of the Pseudalists: and the same Theognis who has furnished the epigraphs of your two

letters assures us that {`oydemian po Kyrn agathoi polin olesan andres,} ["Curnis, good men

have never harmed any city"]'. Altho' this law has not yet been acted on but in a small and

inefficient degree, it is still considered as before the legislature, with other bills of the

revised code, not yet taken up, and I have great hope that some patriotic spirit will, at a

favorable moment, call it up, and make it the key-stone of the arch of our government.

With respect to Aristocracy, we should further consider that, before the establishment of the

American states, nothing was known to History but the Man of the old world, crouded

within limits either small or overcharged, and steeped in the vices which that situation

generates. A government adapted to such men would be one thing; but a very different one

that for the Man of these states. Here every one may have land to labor for himself if he

chuses; or, preferring the exercise of any other industry, may exact for it such compensation

as not only to afford a comfortable subsistence, but where-with to provide for a cessation

from labor in old age. Every one, by his property, or by his satisfactory situation, is

interested in the support of law and order. And such men maysafely and advantageously

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reserve to themselves a wholsome controul over their public affairs, and a degree of

freedom, which in the hands of the Canaille of the cities of Europe, would be instantly

perverted to the demolition and destruction of every thing public and private. The history of

the last 25. years of France, and of the last 40. years in America, nay of it's last 200. years,

proves the truth of both parts of this observation.

But even in Europe a change has sensibly taken place in the mind of Man. Science had

liberated the ideas of those who read and reflect, and the American example had kindled

feelings of right in the people. An insurrection has consequently begun, of science, talents

and courage against rank and birth, which have fallen into contempt. It has failed in it's first

effort, because the mobs of the cities, the instrument used for it's accomplishment, debased

by ignorance, poverty and vice, could not be restrained to rational action. But the world will

recover from the panic of this first catastrophe. Science is progressive, and talents and

enterprize on the alert. Resort may be had to the people of the country, a more governable

power from their principles and subordination; and rank, and birth, and tinsel-aristocracy

will finally shrink into insignificance, even there. This however we have no right to meddle

with. It suffices for us, if the moral and physical condition of our own citizens qualifies them

to select the able and good for the direction of their government, with a recurrence of

elections at such short periods as will enable them to displace an unfaithful servant before

the mischief he meditates may be irremediable.

I have thus stated my opinion on a point on which we differ, not with a view to controversy,

for we are both too old to change opinions which are the result of a long life of inquiry and

reflection; but on the suggestion of a former letter of yours, that we ought not to die before

we have explained ourselves to each other. We acted in perfect harmony thro' a long and

perilous contest for our liberty and independance. A constitution has been acquired which,

tho neither of us think perfect, yet both consider as competent to render our fellow-citizens

the happiest and the securest on whom the sun has ever shone. If we do not think exactly

alike as to it's imperfections, it matters little to our country which, after devoting to it long

lives of disinterested labor, we have delivered over to our successors in life, who will be

able to take care of it, and of themselves.

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Of the pamphlet on aristocracy which has been sent to you, or who may be it's author, I have

heard nothing but thro' your letter. If the person you suspect it may be known from the

quaint, mystical and hyperbolical ideas, involved in affected, new-fangled and pedantic

terms, which stamp his writings. Whatever it be, I hope your quiet is not to be affected at

this day by the rudeness of intemperance of scribblers; but that you may continue in

tranquility to live and to rejoice in the prosperity of our country until it shall be your own

wish to take your seat among the Aristoi who have gone beforeyou.

Ever and affectionately yours.

P. S. Can you assist my memory on the enquiries of my letter of Aug. 22.?

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Mark D. Rosen

“An Important Question of Constitutional Structure”

An Important Question of Constitutional Structure1

Professor Mark D. RosenChicago-Kent College of Law

[email protected]

Our discussion will center on three sets of materials: (1) an exchange concerning the scope of presidential powers between Alexander Hamilton and James Madison known as the Pacificus-Helvidius debates, (2) the relationship between two Supreme Court cases, the famous decision in Marbury v. Madison, 5 U.S. 137 (1803), authored by Chief Justice Marshall, and the lesser known opinion in Ames v. Kansas, 111 U.S. 449 (1884), and (3) a recent debate concerning the constitutionality of the North American Free Trade Agreement (NAFTA).

As we shall see, all materials implicate a very basic, important “structural” question of constitutional law: whether constitutionally allocated power is exclusively held by a single institution or instead can be concurrently held (and exercised) by two institutions. Because the Constitution spends most of its time allocating power to specific institutions, this question is of pervasive significance.

I. The Pacificus-Helvidius Debates

In 1778 the United States entered into the Treaty of Alliance with France in which the United States pledged to come to France’s aid if it 1 Prepared for Seminar on the History and Principles of the American Founding, and sponsored by the Jack Miller Center for the Teaching of America’s Founding Principles and the Montesquieu Forum. Much of the material herein is excerpted from Mark D. Rosen, From Exclusivity to Concurrence, 94 MINNESOTA LAW REVIEW 1051 (2010).

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were attacked by Great Britain. Fifteen years later, France found itself at war with Great Britain. President Washington wanted to issue a proclamation declaring that the United States was not obligated by the Treaty to enter the war on behalf of France.

The question that divided Hamilton and Madison was whether President Washington had the power to interpret the Treaty and issue such a proclamation. The sticking point was that the Constitution explicitly grants Congress – not the President – the power “To declare War.” U.S. Const. Article I, §8, cl. 11. Madison, writing under the name “Helvidius,” argued that only Congress had power to interpret the Treaty on account of its power to declare war. Writing under the pseudonym of “Pacificus,” Hamilton argued that both the President and Congress had power to interpret the Treaty.

Hamilton acknowledged that Congress had the power to interpret the Treaty pursuant to its power to declare war, but urged that the President also had the power to interpret the Treaty under the President’s executive powers:

[H]owever true it may be, that tháeñ right of the Legislature to declare waárñ includes the right of judging whether the Náationñ be under obligations to make War or not—it will not follow that the Executive is in any case excluded from a similar right of Judgment, in the execution of its own functions.

According to Hamilton, the source of the President’s power to interpret the treaty was the Vesting Clause, which provides that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. Article II, §1, cl. 1. Hamilton believed that the “executive power” encompassed a broad swath of foreign relations powers.

Madison vehemently disagreed with Hamilton’s view, dedicating the bulk of his Helvidius Number II to disputing it. Madison’s position boils down to three arguments.

1. First, Madison says that he has identified a “material error” in 59

Hamilton’s position insofar Hamilton failed to fully apply his own principles:

[Hamilton] had before admitted that the right to declare war . . . includes the right to judge whether the United States be obliged to declare war or not. Can the inference be avoided, that the executive instead of having a similar right to judge, is as much excluded from the right to judge as from the right to declare?

Why cannot such an “inference be avoided”? This is what Madison says:

[T]he same specific function or act, cannot possibly belong to the two departments and be separately exerciseable by each . . . A concurrent authority in two independent departments to perform the same function with respect to the same thing, would be as awkward in practice, as it is unnatural in theory.

2. Madison’s second argument is as follows:

[Hamilton] cannot disentangle himself by considering the right of the executive to judge as concurrent with that of the legislature. For if the executive have a concurrent right to judge, and the right to judge be included in (it is in fact the very essence of) the right to declare, he must go on and say that the executive has a concurrent right also to declare.3. Madison’s final argument is that Hamilton’s approach opens the

door to potential conflicts:

If the legislature and executive have both a right to judge of the obligations to make war or not, it must sometimes happen . . . that they will judge differently. . . . In what light does this present the constitution to the people who established it? In what light would it present to the world, a nation, thus speaking, thro’ two different organs, equally constitutional and authentic, two opposite languages, on the same subject and under the same existing circumstances?President Washington followed Hamilton’s view and issued the

Neutrality Proclamation in 1793.

II. From Marbury to Ames

A. Marbury v. Madison60

Background: President Adams had nominated William Marbury to serve as justice of the peace in the District of Columbia. Marbury’s nomination was approved by the U.S. Senate, as required under federal law, but the secretary of state refused to deliver Marbury’s commission, preventing him from assuming office as justice of the peace. Marbury filed a lawsuit in the United States Supreme Court, asking that the Court issue an order of mandamus directing Secretary of State Madison to deliver Marbury’s commission.

Why had Marbury filed his suit in the Supreme Court? He had relied on section 13 of the Judiciary Act of 1789 – one of Congress’ first pieces of legislation – which provided that the Supreme Court “shall have power to issue . . . writs of mandamus . . . to any . . . persons holding office, under the authority of the United States.”

Relevant Constitutional Materials

Article III of the Constitution creates the federal judiciary. It further provides that “[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” U.S. Const. Art. III, §2, cl. 2. The federal district courts and/or state courts had original jurisdiction over other matters that fell within the scope of Article III’s judicial power. Courts with “original jurisdiction” are where cases are tried. “Appellate jurisdiction” refers to courts with power to check the determinations of the courts that exercise original jurisdiction.

Question Presented and the Marbury Court’s analysis

The substantive question presented in Marbury v. Madison was whether the part of section 13 of the Judiciary Act that granted the

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Supreme Court power to issue writs of mandamus constitutional. Everyone understood that the Constitution’s language of “public Ministers and Consuls” referred only to diplomats from other countries, not to a federal official like the Secretary of State. The constitutional question in Marbury hence boiled down to the question of whether Congress had power under the Constitution to expand the Supreme Court’s original jurisdiction beyond the three categories enumerated in the Constitution.

The Marbury Court specifically considered the question of whether Congress could “assign original jurisdiction to [the Supreme Court] in other cases than those specified in” the Constitution. Writing for the Court, Chief Justice Marshall rejected this proposition, explaining that “[a]ffirmative words are often, in their operation, negative of other objects than those affirmed; and in this case, a negative or exclusive sense must be given to them, or they have no operation at all.” In other words, from the fact that the Constitution “apportion[ed] the judicial power between the supreme and inferior courts,” the Chief Justice concluded that only the institution that had been constitutionally allocated original jurisdiction could exercise original jurisdiction. Any other interpretation would render the Constitution’s language “mere surplusage.”

B. Ames v. Kansas

Background

A lawsuit brought by the state of Kansas against several corporations was in federal district court. The Judicial Act of 1789 had a provision that granted federal district courts jurisdiction in the lawsuit that Kansas had brought. At issue in Ames v. Kansas was the constitutionality of that federal statute in this circumstance. The argument on behalf of the statute’s unconstitutionality was based on Article III’s grant of original

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jurisdiction to the Supreme Court in those cases “in which a State shall be a Party.” No one disputed that Kansas was a State that was a party to the lawsuit, and hence everyone acknowledged that the Supreme Court had original jurisdiction over this case under the Constitution. Did Congress have the power to statutorily grant original jurisdiction to another federal court (i.e., to the federal district court)?

Reasoning

The Court in Ames acknowledged that Marbury “used language . . . which might, perhaps, imply that such original jurisdiction as had been granted by the Constitution was exclusive.” On this approach, the Supreme Court alone (among federal courts) would have had original jurisdiction over cases such as this in which a state was a party.

But Ames rejected Marbury’s approach and upheld Congress’s power to grant inferior courts original jurisdiction over the same subjects that fall within the Supreme Court’s constitutionally granted original jurisdiction. Instead of Marbury’s exclusivity, Ames reasoned as follows:

[T]he grant of jurisdiction over a certain subject matter to one court does not, of itself, imply that that jurisdiction is to be exclusive. In the clause in question [in the Constitution] there is nothing but mere affirmative words of grant, and none that import a design to exclude the subordinate jurisdiction of other courts of the United States on the same subject matter.Ames supported its holding by referring to an analogous practice that

had arisen in relation to federal district courts’ jurisdiction over cases involving ambassadors. The same section of the Constitution that grants the Supreme Court original jurisdiction over suits involving states provides that “the supreme Court shall have original Jurisdiction . . . [i]n all Cases affecting Ambassadors.” But since the early days of our Republic, this language has not been understood to mean that only the Supreme Court has original jurisdiction in cases affecting Ambassadors. The 1789 Judiciary Act provided that the Supreme Court “‘shall have

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exclusively all such jurisdiction of suits or proceedings against ambassadors’” but “‘original, but not exclusive, jurisdiction of all suits brought by ambassadors . . . .’” The Ames Court specifically noted that this legislation reflected Congress’s “construction” of the Constitution, and the Court provided a practical rationale for Congress’s “understand[ing] that the original jurisdiction vested in the Supreme Court was [not] necessarily exclusive:”

[K]eep[ing] open the highest court of the nation for the determination, in the first instance, of suits involving . . . a diplomat or commercial representative of a foreign government . . . was due to the rank and dignity of those for whom the [constitutional] provision was made; but to . . . deprive an ambassador, public minister or consul of the privilege of suing in any court he chose having jurisdiction of the parties and the subject matter of his action, would be, in many cases, to convert what was intended as a favor into a burden.The Ames Court also noted that this “construction” of Article III was

provided by “the first Congress, in which were many who had been leading and influential members of the convention, and who were familiar with the discussions that preceded the adoption of the Constitution by the States and with the objections urged against it.”

III. The Treaty Power

The Constitution specifies only one mechanism by which the United States can create international agreements—the treaty—concerning which it states that the “[President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” Many of the most important international agreements that the United States entered into during the twentieth century, however, are not treaties, but, instead, are congressional-executive agreements, which are negotiated by the President and approved by simple majorities of both houses of Congress

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pursuant to Congress’ power to “regulate Commerce with foreign Nations.” U.S. Const. Art. I, §8, cl. 3.

A prominent example of the congressional-executive agreement is the North American Free Trade Agreement, which received sixty-one supporting votes and thirty-eight “noes” in the Senate—short of the two-thirds of senators present necessary for a treaty. The agreement bringing the United States into the World Trade Organization was also a congressional-executive agreement, not a treaty.

Laurence Tribe, one of our country’s leading constitutional scholars, has argued that the NAFTA is unconstitutional on the ground that agreements like NAFTA can only be created by treaty. Other prominent constitutional scholars disagree. The question has not been presented to the United States Supreme Court.

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