« AnteriorContinuar »
does not contract the one before quoted from the same author, (1 Bl. 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 considerables," &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 privileges 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 "privileges du clergé " may be understood by foreigners, perhaps, it will be better to strike it out here, and substitute the word "pardon."
Page 239. "Les commissaries venlent," &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 now 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 precise," &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 then, 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 is 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 arrangements 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 meritoient." 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 recognize 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 closets, unwarmed by those sentiments of friendship which had produced them, inattentive to those pains which an approach
ing separation had excited in the minds of the institutors, politicians, who see in everything 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