Letter from Marcellus to Daniel Webster

27

This principle seems to have had its origin in the opinions of Mr. Jefferson, which are found in his published letters. See Vol. III. p. 27. 426. and Vol. IV. 196. 275. 396.

The general principle adopted by Mr. Jefferson is, that the earth belongs in usufruct to the living ; that the dead have neither power nor rights over it ; that no man can by natural right oblige the lands he occupied, or the persons who succeed him in that occupation, to the payment of debts contracted by him, for if he could, he might, during his own life, eat up the usufruct of the lands for several generations to come, and then the lands would belong to the dead, and not to the living ; that what is true of every member of the society individually, is true of them all collectively ; since the rights of the whole can be no more than the sum of the rights of individuals ; that each generation may be considered as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation ; that the period of a generation is thirty-four years ; that a majority of a generation therefore will be dead at the end of eighteen years and eight months ; and that at nineteen years from the date of a contract, the majority of contractors (the generation) are dead and their contract with them. Mr. Jefferson then supposes a case in which a majority of a generation borrow a sum of money equal to the fee simple value of a state, and consume it in eating, drinking or quarreling and fighting. From this he infers, that in nineteen years, when the majority are dead, there is an end of the debt.

This theory seems to have been suggested by a consideration of the evil of an enormous national debt, like that

28

of Great Britain ; and the alarm which the writer felt, lest the United States should be involved in a like calamity. At any rate, it is the most extraordinary instance of false premises and fallacious reasoning that ever entered the head of an enthusiast.

What is a generation? A multitude of individuals, old and young, unconnected by any legal or political tie which can constitute them a person in law, or a corporation, and of course incapable of contracting debts or expending money, as a body ; in short, incapable of doing any act as a body. A generation can neither make a law nor repeal it.

And what sort of social right is that which an individual has to purchase or sell lands and contract debts, when the mere fact of the death of the majority of the society, an event over which he can have no control, dissolves the contract, and expunges the debt? And how is the fact, at any time, to be ascertained, that a majority are dead? A man who can seriously reason in this manner is worthy of a strait jacket.

But the case of a state or its legislature stands on different principles. A state is a perpetual corporation ; all the members of it are united by consent or compact in one body, constituting a person in law, capable of enacting laws, and repealing them, and of contracting and paying debts. This corporation never dies ; and the powers it had the last year, or twenty or a hundred years ago, are the same powers which it possesses this year. The act of the state, fifty years ago, is the act of the state this year ; and a contract made fifty years ago, binding the state then, continues to bind the same state now. A change of the mem-

29

bers of the corporation makes no change in the being or powers of the body.

These principles, known and established by every government on earth, show in what cases one legislature can repeal or amend the act of a former legislature.

The legislature is the acting state ; it is the only form of the state in which it can act at all. A convention is a legislature elected for a particuar purpose ; and for that purpose, the framing of a constitution, organizing the several departments of the government, it may be convenient to consider it as a body having powers superior to those of an ordinaty legislature, and particularly when the constitution is ratified by the whole body of citizens, acting as individuals.

But in ordinary cases of legislation, the legislature is the supreme power, or the state in the only form in which it can act, as a state.

This body then has always the same powers, and the legislature of this year may repeal a law enacted the last year. The reason is, that a law is the will of the state, acting on itself or on its own members, and the body that repeals a law is the same body that enacted it.

But in the case of charters granted or debts contracted, there are two parties, the state and the individuals to whom a grant or a promise is made ; there are two wills concerned, both of which are essential to the act. In this case one party has no better right to annul a grant or violate a promise, than one private person has to annul a covenant

30

which he has made with another. Nor does it make any difference, whether the state acts by an ordinary legislature or by a convention, for, in both cases, the state is the same party. A change of representation no more alters the identity of the party to a contract, than a man changing his coat makes him another man.

It is not unusual for a state, in granting charters, to reserve the right of repealing the act--a reservation which shows that legislatures have always considered a grant without such reservation as not repealable. Indeed all the principles of justice and right, in regard to the contracts of individuals with each other, are applicable to grants and contracts of states.

The citizen or citizens who accept a charter, with a clause of reservation as above stated, accept the grant on the condition specified, and no injury is done by the legislature in taking back the grant.

The doctrine that there can be no vested rights subverts the foundations of society ; and a country, adopting and acting on that doctrine, would soon be depopulated, or compelled to submit to be governed by a military force.

Many of our public evils have evidently proceeded from false opinions propagated by some of the founders of our government. Their ideas of a free government were not always correct. Mr. Jefferson, and many other distinguished men, believed, that men can govern themselves without a master ; meaning, probably, without a king. True, but they cannot govern themselves without a controlling power, a force of some kind or other that shall be sufficient to keep them in subjection. If the citizens of a state will

31

voluntarily create such a power, they can be governed ; if they will not, they can not be governed ; that is, there can be no regular administration of just laws without a coercive power. If men will not have a king, they must have laws and magistrates, armed with power to bring them all into obedience. If this is not the fact, there is no free government.

We hear it constantly proclaimed, that men may be governed by reason. Why then have they never before been governed by reason? Why do not men govern their social actions without law? Why do not parties in controversy settle their private disputes by the dictates of their reason? Why are courts, consisting of men uninterested in the controversies of individuals, established to decide upon questions of private rights? If men are capable of governing themselves by reason, why have all democratic and republican governments come to ruin? Why have they not been permanent?

Corruption, it will be said, has ruined them. True ; and this is conceding the whole question. It is the depravity of man which has ruined all former free governments, and which will ruin ours.

We have already had terrible examples of the manner in which men govern themselves without a master, that is, not only without a king, but without a competent force of law. And it is not a little singular, that when the citizens of Baltimore had suffered immensely by popular violence, they had no remedy except to organize a military force of volunteers for their protection. What is more worthy of notice, they gave the command to one who had, all his life,