Angleterre_.’ ‘An alien born may purchase lands or other estates, but
not for his own use; for the King is thereupon entitled to them.’ ‘Yet
an alien may acquire a property in goods, money, and other personal
estate, or may hire a house for his habitation. For this is necessary
for the advancement of trade.’ ‘Also, an alien may bring an action
concerning personal property, and may make a will and dispose of his
personal estate.’ When I mention these rights of an alien, I must be
understood of alien friends only, or such whose countries are in peace
with ours; for alien enemies have no rights, no privileges, unless by
the King’s special favor during the time of war.’Blackstone, B.1. c.10.
page 372. ‘An alien friend may have personal actions, but not real; an
alien enemy shall have neither real, personal, nor mixed actions. The
reason why an alien friend is allowed to maintain a personal action is,
because he would otherwise be incapacitated to merchandise, which may be
as much to our prejudice as his.’ Cunningham’s Law Diet, title, Aliens.
The above is the clear law of England, practised from the earliest ages
to this day, and never denied. The passage quoted by M. de Meusnier from
Black-stone, c.26. is from his chapter ‘Of title to things personal
by occupancy.’ The word ‘personal’ shows that nothing in this chapter
relates to lands which are real estate; and therefore, this passage does
not contradict the one before quoted from the same author (1.B. c.10.),
which says, that the lands of an alien belong to the King. The words,
‘of title by occupancy,’ show, that it does not relate to debts, which
being a moral existence only, cannot be the subject of occupancy.
Blackstone, in this passage (B.2. c.26.), speaks only of personal goods
of an alien, which another may find and seize as prime occupant.
Page 193. ‘_Le remboursement presentera des difficultés des sommes
considérables_,’ &c. There is no difficulty nor doubt on this subject.
Every one is sensible how this is to be ultimately settled. Neither
the British creditor, nor the State, will be permitted to lose by these
payments. The debtor will be credited for what he paid, according to
what it was really worth at the time he paid it, and he must pay the
balance. Nor does he lose by this; for if a man who owed one thousand
dollars to a British merchant, paid eight hundred paper dollars into
the treasury, when the depreciation was at eight for one, it is clear he
paid but one hundred real dollars, and must now pay nine hundred. It is
probable he received those eight hundred dollars for one hundred bushels
of wheat, which were never worth more than one hundred silver dollars.
He is credited, therefore, the full worth of his wheat. The equivoque is
in the use of the word ‘dollar.’
Page 226. ‘_Qu’on abolisse les privilèges du clergé_.’ This privilege,
originally allowed to the clergy, is now extended to every man, and even
to women. It is a right of exemption from capital punishment for the
first offence in most cases. It is then a pardon by the law. In other
cases, the Executive gives the pardon. But when laws are made as mild as
they should be, both those pardons are absurd. The principle of Beccaria
is sound. Let the legislators be merciful, but the executors of the law
inexorable. As the term ‘privilèges du clergé’ may be misunderstood
by foreigners, perhaps it will be better to strike it out here and
substitute the word ‘pardon.’
Page 239. ‘_Les commissaires veulent_,’ &c. Manslaughter is the killing
a man with design, but in a sudden gust of passion, and where the killer
has not had time to cool. The first offence is not punished capitally,
but the second is. This is the law of England and of all the American
States; and is not a new proposition. Those laws have supposed that a
man, whose passions have so much dominion over him, as to lead him to
repeated acts of murder, is unsafe to society: that it is better he
should be put to death by the law, than others more innocent than
himself on the movements of his impetuous passions.
Ibid. ‘_Mal-aisé d’indiquer la nuance précise,_’ &c. In forming a scale
of crimes and punishments, two considerations have principal weight. 1.
The atrocity of the crime. 2. The peculiar circumstances of a country,
which furnish greater temptations to commit it, or greater facilities
for escaping detection, The punishment must be heavier to counterbalance
this. Were the first the only consideration, all nations would form the
same scale. But as the circumstances of a country have influence on
the punishment, and no two countries exist precisely under the same
circumstances, no two countries will form the same scale of crimes and
punishments. For example; in America the inhabitants let their horses go
at large in the uninclosed lands which are so extensive as to maintain
them altogether. It is easy, therefore, to steal them and easy to
escape. Therefore the laws are obliged to oppose these temptations with
a heavier degree of punishment. For this reason the stealing of a horse
in America is punished more severely, than stealing the same value in
any other form. In Europe where horses are confined so securely, that it
is impossible to steal them, that species of theft need not be punished
more severely than any other. In some countries of Europe, stealing
fruit from trees in punished capitally. The reason is, that it being
impossible to lock fruit trees up in coffers, as we do our money, it is
impossible to oppose physical bars to this species of theft. Moral ones
are therefore opposed by the laws. This to an unreflecting American
appears the most enormous of all the abuses of power; because he has
been used to see fruits hanging in such quantities, that if not taken by
men they would rot: he has been used to consider them therefore as of
no value, and as not furnishing materials for the commission of a
crime. This must serve as an apology for the arrangement of crimes and
punishments in the scale under our consideration. A different one would
be formed here; and still different ones in Italy, Turkey, China, &c.
Page 240. ‘_Les officiers Americains,_’ &c. to page 264, ‘_qui le
méritoient_.’ I would propose to new-model this section in the following
manner, 1. Give a succinct history of the origin and establishment of
the Cincinnati. 2. Examine whether in its present form it threatens
any dangers to the State. 3. Propose the most practicable method of
preventing them.
Having been in America during the period in which this institution was
formed, and being then in a situation which gave me opportunities
of seeing it in all its stages, I may venture to give M. de Meusnier
materials for the first branch of the preceding distribution of the
subject. The second and third he will best execute himself. I should
write its history in the following form. When on the close of that war
which established the independence of America, its army was about to be
disbanded, the officers, who, during the course of it, had gone through
the most trying scenes together, who by mutual aids and good offices
had become dear to one another, felt with great oppression of mind the
approach of that moment which was to separate them, never perhaps to
meet again. They were from different States, and from distant parts
of the same State. Hazard alone could therefore give them but rare and
partial occasions of seeing each other. They were of course to abandon
altogether the hope of ever meeting again, or to devise some occasion
which might bring them together. And why not come together on purpose
at stated times? Would not the trouble of such a journey be greatly
overpaid by the pleasure of seeing each other again, by the sweetest
of all consolations, the talking over the scenes of difficulty and of
endearment they had gone through? This too would enable them to know who
of them should succeed in the world, who should be unsuccessful, and
to open the purses of all to every laboring brother. This idea was too
soothing not to be cherished in conversation. It was improved into
that of a regular association, with an organized administration, with
periodical meetings, general and particular, fixed contributions for
those who should be in distress, and a badge by which not only those
who had not had occasion to become personally known should be able to
recognise one another, but which should be worn by their descendants,
to perpetuate among them the friendships which had bound their ancestors
together.
General Washington was, at that moment, oppressed with the operation
of disbanding an army which was not paid, and the difficulty of this
operation was increased, by some two or three States having expressed
sentiments, which did not indicate a sufficient attention to their
payment. He was sometimes present, when his officers were fashioning, in
their conversations, their newly proposed society. He saw the innocence
of its origin, and foresaw no effects less innocent. He was, at that
time, writing his valedictory letter to the States, which has been so
deservedly applauded by the world. Far from thinking it a moment to
multiply the causes of irritation, by thwarting a proposition which had
absolutely no other basis but that of benevolence and friendship, he was
rather satisfied to find himself aided in his difficulties by this new
incident, which occupied, and, at the same time, soothed the minds
of the officers. He thought, too, that this institution would be
one instrument the more, for strengthening the federal bond, and for
promoting federal ideas. The institution was formed. They incorporated
into it the officers of the French army and navy, by whose sides they
had fought, and with whose aid they had finally prevailed, extending it
to such grades, as they were told might be permitted to enter into it.
They sent an officer to France, to make the proposition to them, and to
procure the badges which they had devised for their order. The moment of
disbanding the army having come, before they could have a full meeting
to appoint their President, the General was prayed to act in that office
till their first general meeting, which was to be held at Philadelphia,
in the month of May following.
The laws of the society were published. Men who read them in their
closers, unwarmed by those sentiments of friendship which had produced
them, inattentive to those pains which an approaching separation had
excited in the minds of the instituters, politicians, who see in every
thing only the dangers with which it threatens civil society, in fine,
the laboring people, who, shielded by equal laws, had never seen any
difference between man and man, but had read of terrible oppressions,
which people of their description experience in other countries, from
those who are distinguished by titles and badges, began to be alarmed at
this new institution. A remarkable silence, however, was observed.
Their solicitudes were long confined within the circles of private
conversation. At length, however, a Mr. Burke, Chief Justice of South
Carolina, broke that silence. He wrote against the new institution,
foreboding its dangers, very imperfectly indeed, because he had nothing
but his imagination to aid him. An American could do no more; for to
detail the real evils of aristocracy, they must be seen in Europe.
Burke’s fears were thought exaggerations in America; while in Europe,
it is known that even Mirabeau has but faintly sketched the curses of
hereditary aristocracy, as they are experienced here, and as they would
have followed in America, had this institution remained. The epigraph
of Burke’s pamphlet, was ‘Blow ye the trumpet in Zion.’ Its effect
corresponded with its epigraph. This institution became, first, the
subject of general conversation. Next, it was made the subject of
deliberation in the legislative Assemblies of some of the States. The
Governor of South Carolina censured it, in an address to the Assembly
of that State. The Assemblies of Massachusetts, Rhode Island, and
Pennsylvania condemned its principles. No circumstance, indeed, brought
the consideration of it expressly before Congress; yet it had sunk deep
into their minds. An offer having been made to them, on the part of
the Polish order of Divine Providence, to receive some of their
distinguished citizens into that order, they made that an occasion to
declare, that these distinctions were contrary to the principles of
their Confederation.
The uneasiness excited by this institution had very early caught the
notice of General Washington. Still recollecting all the purity of the
motives which gave it birth, he became sensible that it might produce
political evils, which the warmth of those motives had masked. Add to
this, that it was disapproved by the mass of citizens of the Union.
This, alone, was reason strong enough, in a country where the will
of the majority is the law, and ought to be the law. He saw that
the objects of the institution were too light to be opposed to
considerations as serious as these; and that it was become necessary to
annihilate it absolutely. On this, therefore, he was decided. The
first annual meeting at Philadelphia was now at hand; he went to that,
determined to exert all his influence for its suppression. He proposed
it to his fellow officers, and urged it with all his powers. It met an
opposition which was observed to cloud his face with an anxiety, that
the most distressful scenes of the war had scarcely ever produced. It
was canvassed for several days, and, at length, it was no more a doubt,
what would be its ultimate fate. The order was on the point of receiving
its annihilation, by the vote of a great majority of its members. In
this moment, their envoy arrived from France, charged with letters from
the French officers, accepting with cordiality the proposed badges of
union, with solicitations from others to be received into the order,
and with notice that their respectable Sovereign had been pleased
to recognise it, and to permit his officers to wear its badges. The
prospect was now changed. The question assumed a new form. After the
offer made by them, and accepted by their friends, in what words
could they clothe a proposition to retract it, which would not cover
themselves with the reproaches of levity and ingratitude? which would
not appear an insult to those whom they loved? Federal principles,
popular discontent, were considerations, whose weight was known and felt
by themselves. But would foreigners know and feel them equally? Would
they so far acknowledge their cogency, as to permit, without any
indignation, the eagle and ribbon to be torn from their breasts, by
the very hands which had placed them there? The idea revolted the whole
society. They found it necessary, then, to preserve so much of their
institution as might continue to support this foreign branch, while they
should prune off every other, which would give offence to their fellow
citizens: thus sacrificing, on each hand, to their friends and to their
country.
The society was to retain its existence, its name, its meetings, and
its charitable funds: but these last were to be deposited with their
respective legislatures. The order was to be no longer hereditary; a
reformation, which had been pressed even from this side the Atlantic; it
was to be communicated to no new members; the general meetings, instead
of annual, were to be triennial only. The eagle and ribbon, indeed, were
retained, because they were worn, and they wished them to be worn, by
their friends who were in a country where they would not be objects
of offence; but themselves never wore them. They laid them up in their
bureaus, with the medals of American Independence, with those of the
trophies they had taken, and the battles they had won. But through all
the United States, no officer is seen to offend the public eye with the
display of this badge. These changes have tranquillized the American
States. Their citizens feel too much interest in the reputation of their
officers, and value too much whatever may serve to recall to the memory
of their allies, the moments wherein they formed but one people, not to
do justice to the circumstance which prevented a total annihilation of
the order. Though they are obliged by a prudent foresight, to keep out
every thing from among themselves, which might pretend to divide them
into orders, and to degrade one description of men below another, yet
they hear with pleasure, that their allies, whom circumstances have
already placed under these distinctions, are willing to consider it as
one, to have aided them in the establishment of their liberties, and to
wear a badge which may recall them to their remembrance; and it would
be an extreme affliction to them, if the domestic reformation which has
been found necessary, if the censures of individual writers, or if any
other circumstance, should discourage the wearing of their badge, or
lessen its reputation.
This short but true, history of the order of the Cincinnati, taken from
the mouths of persons on the spot, who were privy to its origin and
progress, and who know its present state, is the best apology which can
be made for an institution, which appeared to be, and was really, so
heterogeneous to the governments in which it was erected.
It should be further considered, that, in America, no other distinction
between man and man had ever been known, but that of persons in office,
exercising powers by authority of the laws, and private individuals.
Among these last, the poorest laborer stood on equal ground with the
wealthiest millionary, and generally, on a more favored one, whenever
their rights seemed to jar. It has been seen that a shoemaker, or other
artisan, removed by the voice of his country from his work-bench, into a
chair of office, has instantly commanded all the respect and obedience,
which the laws ascribe to his office. But of distinctions by birth or
badge, they had no more idea than they had of the mode of existence in
the moon or planets. They had heard only that there were such, and knew
that they must be wrong. A due horror of the evils which flow from these
distinctions, could be excited in Europe only, where the dignity of man
is lost in arbitrary distinctions, where the human species is classed
into several stages of degradation, where the many are crouched under
the weight of the few, and where the order established can present to
the contemplation of a thinking being, no other picture, than that
of God Almighty and his angels, trampling under foot the host of the
damned. No wonder, then, that the institution of the Cincinnati should
be innocently conceived by one order of American citizens, should raise
in the other orders, only a slow, temperate, and rational opposition,
and should be viewed in Europe as a detestable parricide.
The second and third branches of this subject, nobody can better execute
than M. de Meusnier. Perhaps it may be curious to him to see how they
strike an American mind at present. He shall, therefore, have the ideas
of one, who was an enemy to the institution from the first moment of
its conception, but who was always sensible, that the officers neither
foresaw nor intended the injury they were doing to their country.
As to the question, then, whether any evil can proceed from the
institution, as it stands at present, I am of opinion there may. 1.
From the meetings. These will keep the officers formed into a body; will
continue a distinction between the civil and military, which, it would
be for the good of the whole to obliterate, as soon as possible; and
military assemblies will not only keep alive the jealousies and fears of
the civil government, but give ground for these fears and jealousies. For
when men meet together, they will make business, if they have none; they
will collate their grievances, some real, some imaginary, all highly
painted; they will communicate to each other the sparks of discontent;
and these may engender a flame, which will consume their particular, as
well as the general happiness. 2. The charitable part of the institution
is still more likely to do mischief, as it perpetuates the dangers
apprehended in the preceding clause. For here is a fund provided, of
permanent existence. To whom will it belong? To the descendants of
American officers, of a certain description. These descendants, then,
will form a body, having a sufficient interest to keep up an attention
to their description, to continue meetings, and perhaps, in some moment,
when the political eye shall be slumbering, or the firmness of their
fellow citizens relaxed, to replace the insignia of the order, and
revive all its pretensions. What good can the officers propose, which
may weigh against these possible evils? The securing their descendants
against want? Why afraid to trust them to the same fertile soil, and
the same genial climate, which will secure from want the descendants
of their other fellow citizens? Are they afraid they will be reduced to
labor the earth for their sustenance? They will be rendered thereby both
more honest and happy. An industrious farmer occupies a more dignified
place in the scale of beings, whether moral or political, than a lazy
lounger, valuing himself on his family, too proud to work, and drawing
out a miserable existence, by eating on that surplus of other men’s
labor, which is the sacred fund of the helpless poor. A pitiful annuity
will only prevent them from exerting that industry and those talents,
which would soon lead them to better fortune.
How are these evils to be prevented? 1. At their first general meeting,
let them distribute the funds on hand to the existing objects of their
destination, and discontinue all further contributions. 2. Let them
declare, at the same time, that their meetings, general and particular,
shall thenceforth cease. 3. Let them melt up their eagles, and add
the mass to the distributable fund, that their descendants may have no
temptation to hang them in their button-holes.
These reflections are not proposed as worthy the notice of M. de
Meusnier. He will be so good as to treat the subject in his own way, and
no body has a better. I will only pray him to avail us of his forcible
manner, to evince that there is evil to be apprehended, even from the
ashes of this institution, and to exhort the society in America to
make their reformation complete; bearing in mind, that we must keep the
passions of men on our side, even when we are persuading them to do what
they ought to do.
Page 268. ‘_Et en effet la population_,’ &c. Page 270. ‘_Plus de
confiance_.’
To this, we answer, that no such census of the numbers was ever given
out by Congress, nor ever presented to them: and further, that
Congress never have, at any time, declared by their vote, the number of
inhabitants in their respective States. On the 22nd of June, 1775, they
first resolved to emit paper money. The sum resolved on was two millions
of dollars. They declared, then, that the twelve confederate colonies
(for Georgia had not yet joined them) should be pledged for the
redemption of these bills. To ascertain in what proportion each State
should be bound, the members from each were desired to say, as nearly as
they could, what was the number of the inhabitants of their respective
States. They were very much unprepared for such a declaration. They
guessed, however, as well as they could. The following are the numbers,
as they conjectured them, and the consequent apportionment of the two
millions of dollars.
[Illustration: Population Estimates--1775, page422]