Doctor Franklin

I did not become acquainted with Dr. Franklin till after his return from France and election to the Chief Magistracy of Pennsylvania. During the session of the Grand Convention, of which he was a member and as long after as he lived, I had opportunities of enjoying much of his conversation, which was always a feast to me. I never passed half an hour in his company without hearing some observation or anicdote worth remembering.

Among those which I have often repeated, and can therefore be sure that my memory accurately retains, are the following.

Previous to the Convention, and whilst the States were seeking by their respective regulations, to enlarge as much as possible their share of the general commerce, the Dr. alluding to their jealousies and competitions remarked that it would be best for all of them to let the trade be free, in which case it would level itself, and leave to each its proper share. These contests he said, put him in mind of what had once passed between a little boy & little girl eating milk & bread out of the same bowl, “Brother,” cried the little girl, “eat on your own side, you get more than your share.”

In the Convention, the difference of opinions was often very great, and it occasionally happened that the votes of the States were equally divided, and the questions undecided. On a particular day, when several subjects of great importance were successively discussed, and great diversity of opinions expressed, it happened that on each of them this was the case; so that nothing was done through the whole day and appearances were not a little discouraging, as to a successful issue to the undertaking. After the adjournment the Docr. observed to several of us who were near him, in allusion to the poor sample wch had been given, of human reason that there was on board a ship in which he once crossed the atlantic, a man who had from his birth been without the sense of smelling. On sitting down to dinner one day one of the Mess, cut off a piece of beef, and putting it to his nose, cried out, this beef stinks. The one next to him, cutting and smelling a piece, said not at all, it is as sweet as any meat I ever smelt. A third passing a piece across his nose several times; stinks, says he, no, I believe not: yes, I believe it does, repeating the opposite opinions as often as he made the trial. The same doubts and contrarieties went round as the company, one after the other, expressed their opinions. Now, gentlemen, exclaimed the man, without the Sense of smelling, I am satisfied of what I have long suspected, that what you call smelling has no existence, and that it is nothing but mere fancy & prejudice.

For the anicdote at the close of the Convention relating to the rising son [sic] painted on the wall behind the Presidts chair see note at the end of the Debates.1

In a conversation with him one day whilst he was confined to his bed, the subject of religion with its various do[c]trines & modes happening to turn up, the Dr. remarked that he should be glad to see an experiment made of a religion that admitted of no pardon for transgressions; the hope of impunity being the great encouragement to them. In illustration of this tendency, he said that when he was a young man he was much subject to fits of indigestion brought on by indulgence at the table. On complaining of it to a friend, he recommended as a remedy a few drops of oil of wormwood, whenever that happened; and that he should carry a little viol [sic] of it about him. On trial he found the remedy to answer, and then said he, having my absolution in my pocket, I went on sinning more freely than ever.

On entering his chamber in his extreme age when he had been much exhausted by pain and was particularly sensible of his weakness, Mr. M. said he, these machines of ours however admirably formed will not last always. Mine I find is just worn out. It must have been an uncommonly good one I obse[r]ved to last so long especially under the painful malady which had co-operated with age in preying on it, adding that I could not but hope that he was yet to remain some time with us, and that the cause of his suffering might wear out faster than his Constitution. The only alleviation he said to his pain was Opium, and that he found as yet to be a pretty sure one. I told him I took for granted he used it as sparingly as possible as frequent doses must otherwise impair his constitutional strength. He was well aware he said that every dose He took had that effect; but he had no other remedy; and thought the best terms he cd make with his complaint was to give up a part of his remaining life, for the greater ease of the rest.

The following anecdotes are from the report of others.

Among the measures of the first Revolutionary Congress, it was proposed that a Committee should be appointed to provide a Medical Chest for the army. The Docr. voted agst. it. Much surprize being manifested by some members, the Docr. in his justification, related an anecdote of the Celebrated Dr. Fothergill,2 who being desired by a philosophical friend to say candidly whether he thought Physicians of real service to mankind, replied by observing that he must first know whether his friend included old women among Physicians; If he did he thought they were of great service.

Whilst the plan of the original “Articles of Confederation” were depending,3 great difficulty was found in agreeing on the powers proper to be granted by the States to the general Congress, much jealousy being entertained by the former lest the latter being possessed of too many powers, should by degrees swallow up those of the States. The Docr. was more apprehensive of encroachments by the States, and in support of his opinion related what had occurred when the Union in 1706 between England & Scotland was on foot. The Scotch Orators & patriots opposed the measure as pregnant with ruin to their Country. In a Sermon one of their Preachers vehemently declaimed agst. it. Not only would the dignity the independence & commerce of Scotland be lost. Her religious as well as civil interests would be sacrificed in favor of England. In a word the Whale would swallow Jonas. But how said the Docr. has it turned out. Why that Jonas had in fact swallowed the Whale (Bute4 & other Scotsmen having then the sway in the Br. Cabinet).5

Case of the story concerning Abraham & the angels against persecution—see the sundry accts. of it in  6 & his improvemt by adding to the alleged original in the appeal to Abraham—the words “who art thyself a sinner.”7

Dialogue with ephemeral insect—see Fs. Franklin’s Gazette.8

General Washington

(See the papers referred to in this, annexed to the letters to Genl. Washington.)9

See correspondence with him and memoranda of conversations.10

The strength of his character lay in his integrity his love of justice his fortitude, the soundness of his judgment, and his remarkable prudence to which he joined an elevated sense of patriotic duty, and a reliance on the enlightened & impartial world as the tribunal by which a lasting sentence on his career would be pronounced. Nor was he without the advantage of a Stature & figure, which however insignificant when separated from greatness of character, do not fail when combined with it to aid the attraction. But what particularly distinguished him, was a modest dignity which at once commanded the highest respect, and inspired the purest attachment.

Although not idolizing public opinion, no man could be more attentive to the means of ascertaining it. In comparing the candidates for office, he was particularly inquisitive as to their standing with the public, and the opinion entertained of them by men of public weight. On important questions to be decided by him, he spared no pains to gain information from all quarters; freely asking from all whom he held in esteem, and who were intimate with him, a free communication of their sentiments, receiving with great attention the different arguments and opinions offered to him, and making up his own judgment with all the leisure that was permitted. If any erroneous changes took place in his views of persons and public affairs, near the close of his life as has been insinuated, they may probably be accounted for by circumstances which threw him into an exclusive communication with men of one party, who took advantage of his retired situation, to make impressions unfavorable to their opponents.

Note the circumstances relating to his first inaugural Address to Congress.11

Explain what passed in relation to the title & place proper in answering him.12

When the navigation bill (at the 1st. Congress under the new Constitution) in which the proposed discrimination between foreign nations & against G. Britain had been defeated by the Senate, he (Gen W.) was so much disappointed, that he told Mr. Dalton one of the Senators from Massachussetts, that he would not have signed the Bill, but for the expectation given him that the Senate would provide for the object in some other mode deemed more eligible.13

The constitutionality of the National Bank, was a question on which his mind was greatly perplexed. His belief in the utility of the establishment & his disposition to favor a liberal construction of the National powers, formed a bias on one side. On the other, he had witnessed14 what passed in the Convention which framed the Constitution, and he knew the tenor of the reasonings & explanations under which it had been ratified by the State Conventions. His perplexity was increased by the opposite arguments and opinions of his Official Advisers Mr. Jefferson & Mr. Hamilton.15 He held several free conversations with me on the subject, in which he listened favorably as I thought to my views of it, but certainly without committing himself in any manner whatever.16

Not long before the expiration of the ten days allowed for his decision, he desired me to reduce into form, the objections to the Bill, that he might be prepared, in case he should return it without his signature. This I did in a paper of which the following is a copy.17 (which see & here insert).

From this circumstance, with the manner in which the paper had been requested & received, I had inferred that he would not sign the Bill: but it was an inference nowise implying that he had precluded himself from consistently signing it.

As it was, he delayed to the last moment, the message communicating his signature.18

The delay had begotten strong suspicions in the zealous friends of the Bill, that it would be rejected. One of its ablest Champions, under this impression, told me he had been making an exact computation of the time elapsed, and that the Bill would be a law, in spite of its return with objections, in consequence of the failure to make the return within the limited term of ten days. I did not doubt that if such had been the case advantage would have been taken of it, and that the disappointed party would have commenced an open opposition to the President; so great was their confidence in the wealth and strength they possessed, and such the devotion of the successful speculators in the funds, and of the anti:republican partizans, to the plans & principles of the Secretary of the Treasury. The conversation had scarcely ended, when the message arrived with notice that the Bill had been approved and signed.

In explaining the grounds on which he refused to comply with the call of the House of Reps. for the papers relating to Mr. Jay’s negociations & Treaty with G. B. in 1795,19 he was led into a reference to a vote in the Grand Convention negativing a proposition to allow the H. of Reps. a participation in concluding Treaties, as an argument agst. their right to the papers called for. The reference and inference were misjudged.20 1. The question on wch. the vote in the Convention was taken, was not the same with that on wch. the call for papers turned; since the House tho’ not a party to a Treaty might, as in the case of the British Parlt, have a legislative right to deliberate on the provisions depending on them for its execution. 2. The vote in the Convention, as nakedly stated, did not necessarily imply a negative on the powers of the House, as it might have proceeded from collateral motives distinct from the merits of the question, such as its being out of time or place, or a belief that without an affirmative vote, an agency of the House of Reps. in the case of Treaties, sufficiently resulted from the text of the Constitutional plan then before the Convention. 3. If the meaning of the Constitution was to be looked for elsewhere than in the instrument, it was not in the General Convention, but the State Conventions. The former proposed it only; it was from the latter that it derived its validity and authority. The former were the Committee that prepared the Bill, the latter the authoritative Bodies which made it a law, or rather through which the Nation made it its own Act. It is the sense of the nation therefore not the sense of the General Convention, that is to be consulted: and that sense, if not taken from the act itself, is to be taken from the proceedings of the State Conventions & other public indications, as the true keys to the sense of the Nation. 4. But what rendered the argument from the case cited particularly unfortunate was the circumstance, that the Bank-Bill had been signed, notwithstanding the vote in the General Convention negativing expressly a proposition to give to Congress a power to establish a Bank.21

On the other hand the Call of the H of Reps. for papers which might be of a confidential nature, was in terms too peremptory and unqualified;22 and the President might therefore justifiably decline, on his responsibility to the Nation, to comply with it. Having myself at the time, taken this view of the subject I proposed that the call should be so varied, as to limit it to such papers as in the judgment of the President might with propriety be communicated. The proposition was very disagreeable to the warmest advocates for the Call, and brought on me some displeasure from a few with whom I was most intimate. The proposition being rejected, I voted for the call, in its unqualified terms, tho taking for granted that the President would exercise his responsible discretion on the subject. The practice of the House has since expressly limited the calls for Executive communications to such as in the judgment of the President the public interest might not forbid.

In the original plan of the Bank contained in the Bill of 179  :23 was a clause making the Bank co-durable with the public debt. It was not without some difficulty limited to the period of years fixed in the law. A more impolitic mode of regulating its duration than the original one could not have been devised. Instead of motives with the B. to aid the Govt. in making the most of its resources, it gave the B. a direct & powerful interest in prolonging the Pub. debt, by embarrassing them, & even promoting wars & wasteful ⟨expenditure establishmts military as well as civil⟩. See Sheet headed “Bank.”

On the 28th. of Feby. 1793. Mr. Giles moved in the House of Reps. certain Reso⟨l⟩utions charging the Secy. of the Treasury with drawing a sum of money borrowed in Europe, into the U. S. and applying it, contrary to the legal appropriation, and also contrary to the instruction of the President (accompanying his commission to the Secy. as the agent for borrowing).24 It was suspected that the object of the Secy. had been to divert money from an intended payment to France, which he disliked, and to aid the Bank to which he was partial.

As the instruction of the President to the Secy. which was before the House was violated by the Act of the latter, his friends contended that he might, as was to be presumed, have recd. subsequent instructions authorizing it, which had not been communicated, and that in any view, if there had been a violation of the appropriating law the President was the responsible functionary, and that the charge was an imputation on him, rather than on the Secretary.

On the other side it was insisted that if subsequent & different instructions had been given by the Presidt. the Secy. would not have failed to make them known in his own defence, which had not been done.

The perfect confidence felt in the integrity of the President, and the delicacy & respect for his feelings, had their natural effect on the occasion. Still it was considered as not a little remarkable that if he had given a sanction to the conduct of the Secy. he should not have protected him agst. the Charge by authorizing the Secy to disclose the fact: and if the Secy. had proceeded contrary to his instructions as well as to the law, that he shd. have exposed himself to the inferences from his reserve under such circumstances.

The mystery is explained by the following extracts from letters from Ed: Randolph at that time Attorney Genl. of the U.S.25

“July 9. 1811. E R. to J. Madison.

“Without one feeling left of the character of a partizan, but still living to friendship, a man whose hand is known to Mr. Madison asks him whether he r[e]collects or ever heard that after Col: Hamilton had been severely pressed for a supposed misappropriation of the money devoted by law to special purposes, he Col: H produced a letter, authorizing it, signed by President Washington, while on his tour to South Carolina; that the President at first denied its existence in positive & vehement terms, not having preserved a copy of it; but that it was afterwards acknowledged by him, and registered in the Treasury Department, ut valeret quantum valere potuit.”26

From the same to the same.

Aug. 8. 1811.27

“The following clue (to) a second search at the Treasury may perhaps succeed. Giles’ Resolutions had been defeated before Col: H. suggested thro’ one of his indirect conduits to the ear of the President, that during his tour in the South, he had sanctioned by two letters, the measure which was so severely criminated. He (the P.) mentioned the circumstance to me, with surprize & passion, declaring in the most excluding terms, that he never did write or cause to be written letters to that purport. Some days afterwards Col: H. put them into the Presidents hands, and by him they were communicated to me, with an instruction to write to Col: H. avowing them. This I did, and it would seem impossible that upon a subject on which his sensibility was so much kindled, that a document of justification should have been laid aside as a private paper. These facts are most distinctly recollected.”28

The communication in these letters is to be ascribed to the friendly feeling in the writer to J. M. who had taken an active part in the discussions produced by Mr. Giles’ Resolutions. The second letter, was written in consequence of an intimation, that from an enquiry at the Treasury Department it did not appear that any such paper as that described had been deposited there.

The inference from the whole seems to be that the Secretary of the Treasury must have prepared as was not unusual with Heads of Depts. in the ordinary course of business, & forwarded to the P. letters to be signed by him, that the Presidt. in the hurry of a journey, & regarding them as29 fiscal operations merely requiring his formal sanction, signed & returned them without particularly attending to or charging his memory with them: & that the Secy. of the Treasury aware that this might be the case, forebore to avail himself of the document he possessed, or to involve the President in the responsibility he was willing to take on himself.

It is proper to remark that Mr. Randolph’s statement came from a dismissed officer, and that it was subsequent to a paralytic stroke which ended in greatly effeebling his mind. But there is reason to confide in his declaration that he retained no feeling of a partizan; and the tenor of his letters indicates no incompetency to the task assumed in them. The explanatory facts stated carry indeed the greatest probability on the face of them. If the acknowledgt by President Washington referred to,30 shd. not have escaped the search made in the Treasury Dept. it must be among the papers of Col: Hamilton, unless indeed involved in some destruction of the files of that Department; for it can not be presumed that the preservation of such a paper could have been wholly neglected.

Bank

(These essays belong with the printed ones in Freneau to the class of political economy.)31

Banks, in their accomodations to prudent borrowers & in furnishing a currency more easy to be counted and transmitted than the metals have acquired so many friends, that if it were desirable to abolish them entirely & every where, the attempt would be hopeless. But the more impossible or inadvisable it may be to abolish them, the more necessary it is to guard agst. the evils resulting from their number, and agst. the abuses incident to the ordinary constitution of them. These abuses may be diminished by a variety of particular regulations. Might not a more radical remedy be found in a different Construction and organization of the administrative Body?

The greatest,32 certainly the most offensive abuses of Banks proceed from the opportunity and interests of the Directors. They can obtain discounts for themselves, even it is said to privileged amounts: They can suspend limit and resume the discounts to others as they please: Their stations inform them of the wants and business of all who deal with and depend on the Bank under their management. With these advantages alone they may by first lending money to themselves, and then immediately shutting the Bank to others, with a knowledge of the effect on others, carry on speculations as gainful as reproachful. Whether the following case happened or not, it will illustrate this source of abuse. A combination of a few influencial Bank Directors, who were Shippers of flour, after drawing under the rules of the B. the amount permitted to Directors, procured a curtailment of discounts, which compelled the Holders of flour, as was foreseen, to sell at reduced prices. As soon as the Mercantile Directors had loaded their ships, and appearances would allow, the ordinary course of discounts was restored.33 A candid or an incautious Bank Director many years ago was heard to say, that altho’ there was no salary annexed to the place; it was fairly worth five thousand dollars a year.

As a remedial Plan of a Bank the Directors might be converted into impartial Judges, in the discharge of their trust, by receiving a liberal salary paid out of the Bank dividends, might be disabled from holding Bank Stock & from borrowing directly or indirectly from the Institution, and might take a customary Oath of Office. Under these regulations, they might without bias, at least without the temptations now before them, exercise the functions required from them & fulfill the ends of the Institution. If it be objected that by holding an interest in the Institution they will be more solicitous to increase its profits, the answer is that at present they may promote their particular interest, in ways impairing those profits. If objected that the men engaged in the business connecting people with the Banks make the best directors, because best acquainted with the Affairs of the Customers of the Bank; the answer is that the Directors soon acquire in their places, more of that sort of information than they carry into them. And it is a general answer to objections, that the question is whether all the advantages claimed for the present constitution of Boards of Directors, are not overbalanced by its disadvantages, and by the advantages of a Board such as that suggested.

Force of precedents in case of the Bank—& in expounding the Constn.34 Equal division of Senate, when the Bill negatived by V. P. not occasioned by unconstitutionality but inexpediency of the Bill.35

reasoning36 of Supreme Ct. founded on erroneous views &—1. as to the ratification of Const: by people if meant people collectively & not by States. 2. imputing concurrence of those formerly opposed to changes of opinion, instead of precedents superceding opinions 3. endeavoring to retain right of Court to pronounce on the consty. of a law after making Legisl. omnipotent as to the expediency of means. 4: expounding power of Congs.—as if no other Sovereignty existed in the States supplemental to the enumerated powers of Congs. 5. making the Judy. exclusive expositor of the Constitutionality of laws; the co-ordinate authorities Legisl: & Execut. being equally expositors within the scope of their functions.37

Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments.

Monopolies tho’ in certain cases useful, ought to be granted with caution, and guarded with strictness agst. abuse. The Constitution of the U. S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community, as a purchase of property which the owner might otherwise withold from public use. There can be no just objection to a temporary monopoly in these cases: but it ought to be temporary because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors: and because, for the same reason, the same discovery might be expected in a short time from other hands.

Monopolies have been granted in other Countries, and by some of the States in this, on another principle, that of supporting some useful undertaking, untill experience and success should render the monopoly unnecessary, & lead to a salutary competition. This was the policy of the monopoly granted in Virga. to Col: Jno. Hoomes to establish a passenger-Stage from   to  .38 But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.

In all cases of monopoly, not excepting those in favor of Authors & inventors, it would be well to reserve to the State, a right to extinguish39 the monopoly by paying a specified and reasonable sum. This would guard against the public discontents resulting from the exorbitant gains of individuals, and from the inconvenient restrictions combined with them. This view of the subject suggested the clause in the bill relating to J. Rumsey in the Virga. Legislature in the year 178  ,40 providing that the State might cancel his privilege by paying him ten thousand dollars. And to secure him agst. the possibility of a payment in depreciated medium, then a prevalent apprehension, it was proposed that the sum should be paid in metal & that of a specified weight & fineness.

One objection to a Bank is that it involves a qualified Monopoly; and the objection certainly has weight in proportion to the degree & duration of the Monopoly.

Perpetual monopolies of every sort, are forbidden not only by the genius of free Govts: but by the imperfection of human foresight. (Among such monopolies, cannot be included the grants in perpetuity of public lands to individuals, the grants being made according to rules of impartiality, for a valuable consideration; and all lands being held equally by that tenure from the public, the vital principle of monopoly is lost. The benefit is not confined to one or a few, but is enjoyed by the whole or a majority of the Community. The evil of an excessive & dangerous cumulation of landed property in the hands of individuals is best precluded by the prohibition of entails, by the suppression of the rights of primogeniture, and by the liability of landed property to the payment of debts. In Countries where there is a rapid increase of population as the U.S. these provisions are evidently sufficient; and in all Countries wd. probably be found so). Where Charters of incorporation, even the Common ones to towns for the sake of local police, contain clauses implying contracts, and irrevocabily [sic], they are liable to objections of equal force. The ordinary limitation on incorporated Societies is a proviso that their laws shall not violate the laws of the land. But how easily may it happen that redress for such violations may not be pursued into effect? How much injury may accrue during the pursuit of redress. And above all how much local injustice and oppression may be committed by laws & regulations, not in strict construction violating any law of the land. Within the local limits, parties generally exist founded on different sorts of property, sometimes on divisions by streets or little streams; frequently on political and religious differences. Attachments to rival individuals, are not seldom a source of the same divisions. In all these cases, the party animosities are the more violent as the compass of the Society may more easily admit of the contagion & collision of the passions; and according to that violence is the danger of oppression by one party on the other; by the majority on the Minority. The ways in which this can be effected, even beyond the cognizance of the paramount law, of the land have scar[c]e any other limits than the ingenuity and interest of those who possess the power. Is a tax to be collected? What inequality may attend the rule or mode of assessment? Is a public building to be erected, what is to guard agst. partiality or favoritism in fixing its site? Is there a single regulation of police which will not differently affect the component parts of the society, and afford an opportunity to the majority to sacrifice to their prejudices or their conveniency the conveniency or the interests of the minor party.

When the town incorporated is not only a market town for the neighbourhood, but a port for an external commerce the effect of its police has a wider range, and its corporate powers the greater need of some other controul than the vague & inefficient one, of the law of the land.

The best illustration of these remarks is to be found in the recorded proceedings of the various local Corporations. What is generally known sufficiently justifies them. Without even a recurrence to facts a common knowlege of human nature, would suggest the probability of the abuses on which they are founded.

The most effectual & perhaps the least exceptionable provision agst. them seems to be that of super-adding to the general restraint of the law of the land, a previous veto in some impartial & convenient quarter on each particular by law. The Executive authority of the State or that authority in consultation with a judge or judges of the highest grade might perhaps be relied on for the controul on these local legislatures, most likely to preserve a just, a uniform, and an impartial exercise of their subordinate powers.41

The danger of silent accumulations & encroachments by Ecclesiastical Bodies have not sufficiently engaged attention in the U.S.

They have the noble merit of first unshackling the conscience from persecuting laws, and of establishing among religious Sects a legal equality. If some of the States have not embraced this just and this truly Xn principle in its proper latitude, all of them present examples by which the most enlightened States of the old world may be instructed; and there is one State at least, Virginia, where religious liberty is placed on its true foundation and is defined in its full latitude. The general principle is contained in her declaration of rights, prefixed to her Constitution, but it is unfolded and defined, in its precise extent, in the Act of the Legislature, usually named the Religious Bill, which passed into a law in the year 1786.42 Here the separation between the authority of human laws, and the natural rights of Man excepted from the grant on which all political authority is founded, is traced as distinctly as words can admit, and the limits to this authority established with as much solemnity as the forms of legislation can express. The law has the further advantage of having been the result of a formal appeal to the sense of the Community, and a deliberate sanction of a vast majority, comprizing every Sect of Christians in the State. This Act is a true standard of Religious liberty: its principle the great barrier agst. usurpations on the rights of conscience. As long as it is respected & no longer, these will be safe. Every provision for them—short of this principle, will be found to leave crevices at least, thro’ which bigotry may introduce persecution; a monster, that feeding & thriving on its own venom, gradually swells to a size & strength43 overwhelming all laws divine & human. Ye States of America which retain in your Constitutions or Codes any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise44 your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions.

Strongly guarded as is the separation between Religion & Govt. in the Constitution of the United States, the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precidents [sic] already furnished in their short history. (See the cases in which negatives were put by J.M. on two bills passd by Congs. and his signature witheld from another).45 See also attempt in Kentucky, for example, where it was proposed to exempt Houses of Worship from taxes.46

The most notable attempt was that in Virga. to establish a Genl. assessment for the support of all Xn sects: This was proposed in the year  47 by P. H. and supported by all his eloquence, aided by the remaining prejudices of the Sect which before the Revolution had been established by law.48 The progress of the measure was arrested by urging that the respect due to the people required in so extraordinary a case an appeal to their deliberate will. The bill was accordingly printed & published with that view. At the instance of Col. George Nicholas, Col. George Mason & others, the memorial & remonstrance agst. it, was drawn up, (which see)49 and printed Copies of it circulated thro’ the State, to be signed by the people at large.50 It met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law. When the Legislature assembled, the number of Copies & signatures presented displayed such an overwhelming opposition of the people, that the plan of a Genl. Assessmt. was crushed under it; and advantage taken of the crisis to carry thro’ the Legisl. the Bill above referred to, establishing religious liberty. In the course of the opposition to the bill in the House of Delegates, which was warm & strenuous from some of the minority, an experiment was made on the reverence entertained for the name & sanctity of the Saviour, by proposing to insert the words “Jesus Christ” after the words “our lord” in the preamble, the object of which, would was [sic] have been, to imply a restriction of the liberty defined in the Bill, to those professing his religion only. The amendment was discussed, and rejected by a vote of   agst   (See letter of J. M. to Mr. Jefferson dated  )51 the opponents of the amendment having turned the feeling as well as judgment of the House agst. it, by successfully contending that the better proof of reverence for that holy name wd. be not to profane it by making it a topic of legisl. discussion & particularly by making his religion the means of abridging the natural and equal rights of all men, in defiance of his own declaration that his Kingdom was not of this World. This view of the subject was much enforced by the circumstance that it was espoused by some members who were particularly distinguished by their reputed piety and Christian zeal.

But besides the danger of a direct mixture of Religion & civil Gover[n]ment, there is an evil which ought to be guarded agst. in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical Corporations. The power of all corporations, ought to be limited in this respect. The growing wealth acquired by them never fails to be a source of abuses. A warning on this subject is emphatically given in the example of the various Charitable establishments in G. B. the management of which has been lately scrutinized.52 The excessive wealth of ecclesiastical corporations and the misuse of it in many Countries of Europe has long been a topic of complaint. In some of them the Church has amassed half perhaps the property of the nation. When the reformation took place, an event promoted if not caused by that disordered state of things, how enormous were the treasures of religious societies, and how gross the corruptions engendered by them; so enormous & so gross as to produce in the Cabinets & Councils of the Protestant States, a disregard, of all the pleas of the interested party drawn from the sanctions of the law, and the sacredness of property held in religious trust. The history of England during the period of the reformation offers a sufficient illustration for the present purpose.

Are the U.S. duly awake to the tendency of the precedents they are establishing, in the multiple incorporations of Religious Congregations with the faculty of acquiring & holding property real as well as personal? Do not many of these acts give this faculty, without limit either as to ti⟨me⟩ or as to amount? And must not bodies, perpetual in their existence, ⟨a⟩nd which may be always gaining, without ever losing, speedily gain more than is useful, and in time more than is safe? Are there not already examples in the U.S. of ecclesiastical wealth equally beyond its object and the foresight of those who laid the foundation of it? In the U. S. there is a double motive for fixing limits in this case, because wealth may increase not only from additional gifts, but from exorbitant advances in the value of the primitive one. In grants of vacant lands, and of lands in the vicinity of growing towns & Cities the increase of value is often such as if foreseen, would essentially controul the liberality conferring them. The people of the U. S. owe their Independence & their liberty, to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprized in the precedent. Let them exert the same wisdom, in watching agst. every evil lurking under plausible disguises, and growing up from small beginnings. Obsta principiis.53

See the Treatise of Father Paul on beneficiary matters.54

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?

In strictness the answer on both points must be in the negative. The Constitution of the U.S. forbids every thing like an establishment of a national religion. The law appointing Chaplains55 establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them; and these are to be paid out of the national taxes. Does not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation.

The establishment of the chaplainship to Congs. is a palpable violation of equal rights, as well as of Constitutional principles. The tenets of the Chaplains elected shut the door of worship agst. the members whose creeds & consciences forbid a participation in that of the Majority. To say nothing of other sects, this is the case with that of Roman Catholics & Quakers who have always had members in one or both of the Legislative branches. Could a Catholic clergyman ever hope to be appointed a Chaplain? To say that [his] religious principles are obnoxious or that his sect is small, is to lift the veil at once and exhibit in its naked deformity the Doctrine th⟨at⟩ religious truth is to be tested by numbers, or that the major sects have a right to govern the minor.

If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their constituents shd. discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Congs. wd. suffice for the purpose? How just wd. it be in its principle? How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience? ⟨Why⟩ should the expence of a religious worship for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Govt.

Were the establishment to be tried by its fruits, are not the daily devotions conducted by these legal Ecclesiastics, already degenerating into a scanty attendance, and a tiresome formality?

Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the aphorism de minimis non curat lex:56 or to class it “cum maculis quas aut incuria fudit, aut humana parum cavit natura.”57

Better also to disarm in the same way the precedent of Chaplainships for the army and navy, than erect it into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right principle, & trust to its consequences, than confide in the reasoning however specious in favor of a wrong one. Look thro the armies & navies of the world, and say whether in the appointment of their ministers of religion, the spiritual interest of the flocks or the temporal interest of the Shepherds, be most in view: whether here, as elsewhere the political care of religion, is not a nominal more than a real aid. If the spirit of ar⟨m⟩ies be devout, the spirit out of the armies will never be less so; and a failure of religious instruction & exhortation from a voluntary source within or without, will rarely happen: and if such be not the spirit of armies, the official services of their Teachers are not likely to produce it. It is more likely to flow from the labours of a spontaneous Zeal. The armies of the puritans had their appointed Chaplains, but without these there would have been no lack of public devotion in that devout age.

The case of navies with insulated crews may be less within the scope of these reflections. But it is not entirely so. The chance of a devout officer, might be of as much worth to religion, as the service of an ordinary chaplain.58 But we are always to keep in mind that it is safer to trust the consequences of a right principle, than reasonings in support of a bad one.

Religious proclamations by the Executive recommending thanksgivings & fasts are shoots from the same root with the legislative acts reviewed.

Altho’ recommendations only, they imply a religious agency, making no part of the trust delegated to political rulers.

The objections to them are 1. that Govts. ought not to interpose in relation to those subject to their authority but in cases where they can do it with effect. An advisory Govt. is a contradiction in terms. 2. The members of a Govt. as such can in no sense, be regarded as possessing an advisory trust from their Constituents in their religious capacities. They can not form an Convocation,59 Council or Synod, and as such issue decrees or injunctions addressed to the faith or the Consciences of the people. In their individual capacities, as distinct from their official station, they might unite in recommendations of any sort whatever; in the same manner as any other individuals might do. But then their recommendations o⟨ught?⟩ to express the true character from which they emanate. 3. They see⟨m⟩ ⟨to⟩ imply and certainly nourish the erronious idea of a national religion. Th⟨is⟩ idea just as it related to the Jewish nation under a theocracy, having been improperly a⟨d⟩opted by so many nations which have embraced Xnity, is too apt to lurk ⟨in?⟩ the bosoms even of Americans, who in general are aware of the disti⟨nction⟩ between religious & political societies. The idea also of a union of all w⟨ho?⟩ form one nation under one Govt. in acts of devotion to the God of all is an imposing idea. But reason and the principles of the Xn religion require that ⟨if?⟩ all the individuals composing a nation were of the same precise creed & wished to unite in a universal act of religio⟨n⟩ at the same time, the union ought to be effected thro’ the intervention of their religious not of their political representatives. In a nation composed of various sects, some alienated widely from others, and where no agreement cou⟨ld⟩ take place thro’ the former, the interposition of the latter is doubly wrong; 4. the tendency of the practice, to narrow the recommendation to the standard of the predominant sect. The60 1st. Proclamation of Genl. Washington dated Jany. 1. 1795.61 recommending a day of thanksgiving, embraced all who believed in a supreme ruler of the Universe. That of Mr. Adams called for a Xn wors⟨hip.⟩62 Many private letters reproached the Proclamations issued by J.M.63 for usin⟨g⟩ ⟨the⟩ general terms, used in that of Presidt. W—n; and some of them for not inserting particular⟨s⟩ according with the faith of certain Xn sects. The practice if not strictly guarded, naturally terminates in a conformity to the creed of the major⟨ity⟩ and of a single sect, if amounting to a majority. 5. the last & not the least Objection is the liability of the practice, to subserviency to political views; to the scandal of religion, as well as the increase of party animosities. Candid or incautious politicians will not always disown such views. In truth it is difficult to frame such a religious Proclamation, generally suggested by a political State of things, without referring to them in terms having some bearing on party questions. The Proclamation of Pres: W. which was issued just after the suppression of the Insurrection in Penna.64 and at a time when the public mind was divided on several topics, was so construed by many. Of this the Secretary of State65 himself, E. Randolph seems to have had an anticipation.

The original draught of that Instrument filed in the Dept. of State66 ⟨in⟩ the hand writing of Mr. Hamilton the Secretary of the Treasury. It appears ⟨th⟩at several slight alterations only had been made at the suggestion of ⟨the?⟩ Secretary of State; and in a marginal Note in his hand, it is remark⟨ed⟩ ⟨th⟩at “In short this proclamation ought to savour as much as possible of religion, & ⟨not⟩ ⟨too?⟩ much of having a political object.” In a subjoined note in the hand of Mr. Ha⟨mil⟩ton, this remark is answered by the counter-remark that “A proclamation ⟨of?⟩ a government which is a national act, naturally embraces objects which are ⟨po⟩litical.” So naturally, is the idea of policy associated with religion whatever be ⟨the⟩ mode or the occasion, when a function of the latter is assumed by those in power. During the administration of Mr. Jefferson no religious proclama⟨tion⟩ issued. It being understood that his successor was disinclined to such interpo⟨si⟩tions of the Executive, and by some supposed moreover that they might originate with more propri⟨e⟩ty with the Legislative Body, a resolution was passed requesting him to issue a ⟨p⟩roclamation (See the resolution in the Journals of Congress[)].67

It was thought not proper to refuse a compliance altogether; but a ⟨for⟩m & language were employed, which were meant to deaden68 as much as pos⟨sib⟩le any claim of political right to enjoin religious observances by resting these expressly on the voluntary ⟨c⟩ompliance of individuals, and even by limiting the recommendation to such as wished a simultaneous as well as voluntary performance of a religious act on the occasion. The following is a copy of the proclamation: (see it in69 Niles Reg. Vol 8 p. 17).

Popular elections

On the purity of these depend the reputation & success of Representative Govts. In some of the States whilst they were Colonies, the original manners & usage of the people maintained this purity. It was much favored also by the frequency of elections, which were annual; nor were half yearly elections without example. The rule of voting by ballot was another precaution guard agst. the use of undue means by Candidates for the popular suffrage. In a number of the Colonies Candidates were in the practice not only of publicly offering their services, but of soliciting the votes of the people and of giving them treats, particularly of intoxicating drinks. In Virga. when the elections for the Colonial Legislature were septennial, & the original Settlers of the prevailing sentiments & manners of the parent70 nation, the modes of canvassing for popular votes in that Country were generally practiced. The people not only tolerated, but expected and even required to be courted and treated. No Candidate who neglected these attentions could be elected. His forbearance wd. have been ascribed to a mean parsimony, or to a proud disrespect for the voters.

The spirit of the revolution and the adoption of annual Elections seeming to favor a more chaste mode of conducting elections in Virga. My way of thinking on the subject determined me to attempt by an example to introduce one. It was found that the old habits were too deeply rooted to be suddenly reformed. Particular circumstances obtained for me success in the first election at which I was a Candidate. At the next I was outvoted by two Candidates, neither of them having superior pretensions and one peculiarly deficient in them; but both of them availing themselves of all the means of influence familiar to the people. My reserve was imputed to want of respect for them, if to no other unpopular motive.

Time, the genius of the Govt. and the shortness of the term, have considerably diminished the undue means of canvassing; but the practice still prevails too much of treating the people, and the Candidates failing to do so would be charged with or suspected of unworthy motives—As a remedy—Let one or more of the Candidates propose in the outset, that all should, instead of spending money on ardent spirits and other treats contribute the estimated amount, as a fund for supporting & educating the poor; and if not agreed to by others Let him take that course as an example. So beneficent a substitute, for a corrupting practice wd. be espoused by all the most virtuous & respectable voters—& must soon triumph over the remaining prejudice.

The “Federalist.”

The papers, so entitled, were written in the latter part of 1787, & the early part of 1788 by Alexander Hamilton, John Jay and James Madison. The original and immediate object of them was to promote the ratification of the new Constitution by the State of N. York where it was powerfully opposed, and where its success was deemed of critical importance. According to the original plan & In the early numbers, the papers went out as from a Citizen of N.Y. It being found however that they were republished in other States and were making a diffusive impression in favor of the Constitution, that limited character was laid aside.

The undertaking was proposed by A. Hamilton to J.M. with a request to join him & Mr. Jay in carrying it into effect. William Duer71 was also included in the Original plan & wrote two or perhaps more papers, which tho’ intelligent & sprightly, were not continued; nor did they make a part of the printed Collection.72

The papers were first published in the Newspapers of the City. They were written most of them in great haste, and without any special allotment of the different parts of the subject to the several writers. J.M. being at the time a member of the then Congress, and A.H. being also a member, and occupied moreover in his profession at the bar, it was understood that each was to write as their respective situations permitted, preserving as much as possible an order & connection in the papers successively published. This will account for any deficiency in that respect, and also for an occasional repetition of the views taken of particular branches of the subject. The haste with which many of the papers were penned, in order to get thro’ the subject whilst the Constitution was before the public, and to comply with the arrangement by which the printer was to keep his newspaper open for four numbers every week, was such that the performance must have borne a very different aspect, without the aid of historical and other notes which had been used in the Convention,73 and without the familiarity with the whole subject produced by the discussions there. In [sic] frequently happened that whilst the printer was putting into type parts of a number, the following parts were under the pen, & to be furnished in time for the press.

In the beginning it was the practice of the Writers, of A.H. & J.M. particularly to communicate each to the other, their respective papers before they were sent to the press. This was rendered so inconvenient, by the shortness of the time allowed, that it was dispensed with. Another reason was, that it was found most agreeable to each, not to give a positive sanction to all the doctrines and sentiments of the other; there being a known difference in the general complexion of their political theories.

The particular papers assigned to each of the writers have been differently presented to the public. The statement from a memorandum left with Mr. Benson74 by Mr. H., just before his death, is very erroneous, owing doubtless to the hurry in which the memorandum was made out. Besides the considerable number of papers written by J. M., and in the lump classed with those written by himself, he ascribes to himself No. 64 written by Mr. Jay; and to Mr. Jay. No.  75 written not by him but by J. M. (see life of Mr. Jay by Delaplaine).76 The paper No. 49 also in which Mr. Jefferson is painted in such strong colours, was not likely to be even approved by Mr. H; and the paper No. 54. on the subject of the negroes as comprized in the ratio of representation, was most likely to be within the share executed by the Southern member of the Club. There can be little difficulty in admitting this instance of the fallibility of Mr. H.’s memory; on comparing it with a far more extraordinary one, furnished in his letter to Mr. Pickering77 written at full leisure, in which, among other things which ought not to have been written, he says that in his plan of a Constitution deposited with J.M. he proposed that the President shd. be chosen for three years (see Niles’s Register  )78 when in fact, as the original* in his own hand must shew, that there as elsewhere he desired a President during good behaviour.

A true distribution of the numbers of the Federalist among the three writers is contained in the Edition of that work by Jacob Gideon.80 It was furnished to him by me, with a perfect knowlege of its accuracy as it related to myself, and a full confidence in its equal accuracy as it relates to the two others.

In the same volume, edited by J. G. he has published along with Mr. H’s pamphlet under the name of “Pacificus” a pamphlet in answer to it by me under the name of “Helvidius” whose distinguished character was drawn by the pencil of Tacitus.81 The Pamphlet “Pacificus” had been improperly included in a former Edition of the “Federalist” of which it could not make a part, being not written as that was, conjointly with others, to recommend the adoption of the Constitution, but in opposition to one at least of the others, and as a comment on the Constitution long after its adoption. I suggested to Mr. Gideon the impropriety of what had been done, with a view to a publication of the Federalist without combining with it, what was entirely foreign to it. The Editor having determined to publish both of the pamphlets rather that [sic] omit what had been included in a former Edition, I sent him the copy of Helvidius which he published.82

I ought not perhaps to acknowlege my having written this polemic tract, without acknowleging at the same time my consciousness & regret, that it breathes a spirit which was of no advantage either to the subject, or to the Author. If an apology for this, & for other faults can be made it must be furnished by the circumstances, of the pamphlet being written in much haste, during an intense heat of the weather, and under an excitement stimulated by friends, agst. a publication breathing not only the intemperance of party, but giving as was believed a perverted view of Presidt. Washington’s proclamation of neutrality83 and calculated to put a dangerous gloss on the Constitution of the U.S.