University of Virginia Library

2. CHAP. II.

Though I am not employed in political affairs; or,
meaning to make my book a treatise of finance; yet I
may be indulged in a few remarks on the preceding
subjects.

I am far from being greatly confident that I am right;
nevertheless I will acknowledge that in the case of the
certificates, I always found myself inclined to have made
a discrimination. It seems to me that even on the principles
of the municipal law, it would have been justifiable.
Let us apply the chancery decisions to the case
of the contract between the original holders, and the
transferrees. In a court of equity, a contract will be
set aside on the principle of,

1st. Fraud.

2d. The unconscionableness of the bargain.

3d. The being against the public interest, and good
policy.

1st. Fraud: And in this case, it is not necessary to
prove express fraud: presumptive is sufficient. “This
court, meaning the court of chancery, says lord chancellor
Hardwicke, will relieve against presumptive fraud,
so that equity goes farther than the rule of law; for
there fraud must be proved, and not presumed only.”
1st Atkins 352.

To apply this principle in our case. Is there not
presumption of fraud, where the holder of a certificate
parts with it for a little more than the tenth of what is
really due upon it? But it is well known that actual
and express fraud, did in general exist in the traffic in
these securities, the purchasers, individually, or in
combination with others, decrying the credit of the government,

and depreciating as much as possible, the
value of the certificates.

But the same great chancellor, lays it down, that
“To take an advantage of another man's necessity is
equally bad as taking advantage of his weakness, and
in such situation, as incapable of making a right use of
his reason, as in the other. Fraud has been constantly
presumed, or inferred from circumstances, and conditions
of parties; weakness and necessity on the one side,
and extortion and avarice, on the other; and merely
from the intrinsic unconscionableness of the bargain. There
are hard unconscionable bargains, which have been
construed fraudulent, and there are instances, where
even the common law hath relieved for this reason expressly.”
1st Atkins 352.

2d. But the bare unconscionableness of the bargain,
all idea of fraud out of the question, would be sufficient
to set aside the contract in a court of equity.

Sir John Strange, the master of the rolls in the court
of chancery lays it down; that “there may be cases
where this court will interpose to prevent improvident
persons from ruining themselves, before the expectancy
falls into possession, though no express fraud or imposition
appears.” 1st Atkins 346.

But let it be supposed that the contract was equal,
and conscionable at the time of making it; the one taking
a small sum certain, and the other receiving the uncertainty
of a large sun.; yet has it not become unconscionable
by the event? Did any purchaser ever expect
to be paid the whole nominal sum, in gold or silver?
The ideas of the time must be yet fresh in every man's
mind; and we well know that no man was so sanguine
as to expect this. It was supposed that something might
be done towards paying the interest at a future day, or
lands in the western country, might be obtained for
them. But whatever the purchaser might think, no
seller did imagine that for one-third, or one-half of a
dollar, he was transferring twenty or twenty five shillings.
It was not in the contemplation of the parties

to lose so much on the one side, or gain so much on the
other. It is an unexpected event that has put it in the
power of the public to do more in making a provision
for the payment of the public debt, than could at that
time be foreseen. What is more; it is an event brought
about by the joint efforts of the original holder and the
tranferree; I mean a new constitution of government,
under which the legislature of the states having the
command of all resources, was able to make a better
provision for these debts. It is unreasonable, and unconscionable
that the transferree should take all the advantage
of this event? Let any man putting a thousand
dollars in his pocket from the bank of the United States,
look at the war-worn soldier, or the widow and fatherless
who has parted with them, and say if his conscience
is not touched with a sense of the unreasonable gain.
If it is not, it ought to be. At any rate, on the principle
of unreasonableness, a contract of such undue advantage,
would not be sanctioned by the law. The

3d. Ground is that of the public interest, and good
policy. Lord Hardwicke lays it down, “that political
arguments, in the fullest sense of the word, as they
concern the government of a nation must, and have always
been of great weight in the consideration of this
court (the court of chancery) and though there may be
no dolus malus in the contract, as to other persons; yet,
if the rest of mankind are concerned, as well as the parties,
it may properly be said that it regards the public
utility.” 1st Atkins 352.

There can be nothing more hurtful to a people than
sudden losses, and sudden gains to individuals. Happiness
depends on a gradual accession of attainment. Perhaps
a sudden loss inflicting with melancholy, is not
more hurtful, than sudden great gains, hurrying into
a situation for which the mind is not gradually qualified.
But sudden gains out of the way of common industry,
affect the sensations of others, who partake not; and
feel chagrin and dissatisfaction with their state in life.

Such gains sap the foundation of common industry.
For what man will be equally content to labour in his
vocation, and pursue the common means of a livelihood
when he sees his neighbour all at once, by some fortunate
cast, so far before him in his acquisitions. It is
on this principle that our legislatures have prohibited
gaming, lotteries, &c. In the natural world there is
a gradation in all things. Animals grow to their size
in a course of years; trees and plants, have their progress;
Jonah's ground might spring up in a night by a
miracle; but in general all the productions of nature
have a regular period of increase.

The attainments of men are made to depend usually
upon their industry. As ye sow, so shall ye reap. In
well regulated societies this œconomy is imitated, and
where one estate comes by accident, five hundred are
acquired by common means. Such an institution of
things constitutes the health of any people.

On all or any of these grounds, therefore, fraud, unconscionableness,
or sound policy, a contract of the nature
in question, would have been set aside on a bill in
the chancery of England, and in our courts, the contract
would not be established against the original holder of a
certificate: or on payment to the transferree, an action
would lie to the original holder, counting for money
had and received to his use, and demanding all above
the sum originally paid, and with legal interest from
the date.

But it will occur, that there were in most cases a number
of transferrees between the original holder, and
the then possessor. The impracticability of making
these answerable to the original holder, for their respective
proportions of the undue gain, will put them out
of the question. The case would then have stood between
the original holder and the last transferree. Shall
he be answerable to the original holder for all the intermediate
gains? No. But let him take no more than
the then selling price of the certificates. It became the
legislature in the first instance to have ascertained the

current value of the public securities, and to have made
provision for the redemption of them in the hands of
the transferrees, at that value and no more; but in
the hands of the original holders, at the full specie value;
and let the sum saved from transferrees go to the
original holders who had transferred. Was it practicable
that these could be ascertained? Let the proof lie
on the original holders; and where it could not be
made, let the public be the gainers.

As to the assumption of the state debts, perhaps,
it would be adviseable for me to be as silent as the
bog-trotter; as it is possible, I may not have a perfect
knowledge of the question. But from the knowledge
I have on the subject, it has appeared to me I will not
say an unjust, but an impolitic measure. If more were
led to look to the general government, and to depend
upon it, as being the general debtor; yet with this it
took the odium of imposing duties to discharge the
whole. It would have been as well perhaps, to have
left the states themselves, to enact excise laws, or to
devise whatever other ways and means, they thought
proper while the imposts, which the United States
had now got in their collective capacity, would have
been sufficient to have answered the continental debt
where they were the immediate contractors. There
is that advantage in a public debt, that the fortunes of
many are made to depend on the existence of the government;
but as there, in the nature of things, can
be but few, in proportion to the whole, there will be
in that proportion, a greater number to be affected
with the payment, and to be careless of the existence of
the government, or to wish a dissolution of it. When
that debt, as in the present instance, by the necessiries
of the distressed, the distrust of the credulous, and opportunities
of the knowing, has come to be in few hands;
after having passed from the most deserving, at a small value
it exists with an odium upon it in the public mind,
which naturally transfers itself to all ways and means that
can be devised for the discharge of it. At the same time

that it is well to brace the government, and secure its
strength, it is an object of equal moment to preserve
it popular: affection, as well as power, are the bands
of authority.

As to the bank incorporation, I shall only say, that
the doctrine of insering powers by implication, is extremely
dangerous, and may easily be carried to overthrow
all the boundaries of any constitution. I think
it much the most adviseable, when the case is doubtful,
to wait until the same authority by which the constitution
is established, shall have declared its sense on the
subject. For otherwise, except as to the form of a government,
independent of its powers, a constitution will
be of no use.

A transgression of the constitution is the breach at
which tyranny enters; and of all things it is the most
difficult thing to preserve a constitution inviolate. The
Council of Censors in Pennsylvania, was a means, and
I think a good one. They did themselves honour in
the report they made with respect to the violation of
the constitution, though the spirit of party prevented
them from going far enough. Under the United States
there is but one means, and that is the decision of the
judiciary. The judges have done themselves honour in
a late case where they had the independence to declare
a law void which they considered as unconstitutional.
In the case of the bank, would not a writ of quo warranto
lie. I can have no doubt of it; and, I may
be mistaken, but I can have no doubt but that
the judges would find themselves bound to declare the
act in question not within the powers granted to the
United States, and therefore void.

As to Indian treaties, having occasionally in this
work, insinuated my ideas, it may seem a repetition
to say any thing more on the subject. Indeed the objection
may lie in general against the work, that certain
subjects, such as the Philosophical Society, Popular
Preaching, Indian Treaties, &c. have been too often
introduced. To this, I have to answer, that it has

been the system I proposed, not to exhaust a subject all
at once, but to touch it for the present, and introduce
it afterwards in a different point of view, where such
things might be added, as would otherwise originally
have been brought in; just as, in order to preserve a
relish for the same food, we do not dine upon it in continuance,
but having had veal to day, take pork to-morrow,
and the third day return to veal again.

Having certain ideas to inculcate, I bring them forward
at various times, and in different shapes, with
front, flank, rear, corps de reserve, &c. As the human
mind, from defect of attention, or incapacity, cannot
be reached all at once, in the manner of the prophet,
imitating his zeal, and knowledge of the heart, I give
“line upon line; precept upon precept; here a little,
and there a little.” This will be my apology, for
touching the subject of Indian treaties again in this
volume.

On this subject I lay down these principles; that an
Indian is a man, and you may bind him by kind words
and good acts. But he is an ignorant, uninlightened
man, and when you lose the affections of his heart,
you have little hold upon his reason to recover it:
Respect for you, in the first case, is the ground of his
attachment; fear of you in the last, must be your
means to reclaim him. Hence it depends upon circumstances
when a treaty is expedient, and when a war is necessary.

Apply this to our present situation with the Indians.
At the conclusion of the war with the British, we were
thought to be conquerors: though the savages were
kept in the dark with respect to the stipulated surrender
of the posts on the lakes, and the cession of the Indian
country by their allies, yet it had transpired among
them that we had been successful against the great king;
hence a fear of us was impressed, and it was expedient
to treat.

We did treat, and after some interval, as will always
be the case, war, again took place. They have

have had the advantage. This is not, therefore, the
crisis to treat.

Amongst ourselves, do we not find, that if you
yield to the imposition of an ignorant man, he will attribute
it to your want of discernment to observe it;
whereas, on your part, it was to avoid all contention
with a low person. If you are insulted by an ignorant
man, he will attribute it to your cowardice, that you do
not challenge him, whereas, it is an unwillingness to
have your name mentioned with his, as having had a
dispute at all. If you attempt to negociate a contract
with an ignorant man, and ask him just what you ought
to ask, he proposes less than he otherwise would have
done; and not until you convince him, that you are at
a world, in these matters, will you induce him to agree
to what is reasonable.

A small success with an ignorant man, against an adversary,
will give him hopes, which the occasion does
not justify; because he does not comprehend the principles,
and see how much accident, or causes that may
not exist again, had to do in the business. It is therefore
like selling a fowl in a rainy day, to attempt negociating
with an ignorant man, when his imagination
is not corrected by an experience of facts against him.
It is on the principles of human nature, that I found
my ideas of managing the Indians.

I would deprecate a treaty at present, because it
could not be permanent. We are in a fair way, to
bring things to a state in which it might be adviseable
to treat. Let the event be what it may, I am one of
those who not only approve of the present war against
the Indians, but also of the principle on which it is
carried on, viz. by a body of regular and well disciplined
troops. It is suggested by some, that the militia
would be adequate. What? Because in the course of
the war against the British, when we had not disciplined
troops at all times, and in sufficient numbers to oppose
to the enemy, the militia of necessity were obliged
to act, and sometimes acted well, will it be said that

they were preferable to the disciplined troops? we know
they were not, though occasionally they discovered
bravery, and were obedient to orders. But supposing
them equal; what is more, supposing them preferable;
are the inhabitants of the western country, to be perpetually
harrassed with militia duty? To be subject to
the necessity of quiting their occupations, and to be occasionally
soldiers? Did not the militia during the war
with Britain, groan under the necessity of being obliged
to act? And shall this grievance exist to the western
country, ten years after that war has been terminated;
and when it is in the power of the government, knowing
the seat of war with the savages, to have regular
troops to oppose them; not as in the case of the British,
where by means of their flects, the war was suddenly
transferable from place to place, and the militia were
obliged to act, in order to assist the parts of our army,
until a greater force should arrive.

Militia! That is, let every man do his own fighting.
Why not every man his smithing, masoning, weaving,
and tayloring, as well? Because it will be better to
have persons who will make a business of each particular
branch, and stick to it. It does not do to be a Jack
of all trades. Well, and why plow a spell, and then
fight? But the riflemen of the western country, are
the best calculated to fight the Indians. Well: enlist
such, and give them rifles, and make an abiding body
of them, that the country may have a permanent force
to depend upon. But they will not enlist. I engage
it, if you pay them well. When militia are called
upon they are not those that are drafted that go; they
are substitutes. They cost high to those that employ
them; and being the refuse of the country, they are
good for nothing when they are employed. But let
those that are drafted go. Well; draft them from the
inland parts of the government, that have not families
to defend on the frontiers, and see what will then be
said. Volunteers are the thing, making a sudden incursion.
If they make a sudden incursion, they will make

a sudden recursion, and leave the matter as they found
it. A large army cannot find the Indians. They will
run away. Well, stay till they come back. Occupy
the country; and occupying it, then prepare to treat.
Treating at their own towns you will not be imposed
upon by raggamuffins passing for chiefs; or tribes treating
who are at peace already, and are so situated that
they dare not go to war. But the western country is
not worth defending at the expence of a standing army.
Give it up then; absolve us from our allegiance, and
let us make terms with the British who have the command
of the Indians. For an army at least equal to
the present establishment must be kept up; otherwise
all the treaties that can be made, will be of no avail;
for a present visible force is the only sanction of engagements,
with the savages; more especially in their
present situation, impelled, and supported by the traders
of Britain. I will not say how far the government
takes a part, as there are different opinions on this subject.
But it is not the western country only that you
are defending. It is the very sea coast settlements. For
if we give way, and return to the east of the mountains,
will not the enemy come to the east after us?
If he finds no horses or blankets, on the one side, will
he not pursue his rout to the other? If he misses a scalp
short of the Schuylkill, will it not do to take it there?
The fact is, that the command of lake Erie, by posts
established upon it, and from thence to the Wabash,
are the only means of repressing the Indians; not so
much from the actual force of these establishments as
from the effect upon the imagination of the enemy; for
seeing the boldness of the step, they will count more
upon our force than they ought; as at present they
count less; and it will refute the British traders, who
deny the cession of the country made by that government.
But more especially, by encouraging our traders
under the protection of our posts, a commerce will
be established with the savages, under the nose of the
British, and we may equally have the direction of them.
Surely any man of the smallest reflection must know,
that a treaty and giving goods, is but a transitory act,
and can have but a transitory effect; whereas the means
that will reduce, and the interests that will conciliate,
ought to be permanent to be of any use.