Quincy Feb. 12. 1808
My good Son
Since you will not allow me the whole of Parson Nelsons Epithets for his Son I will insist upon retaining the better half of them. Nothing was farther from my intention than to underrate the Character of Admiral Nelson. I can Subscribe to all that you Say in his praise: yet I would not exchange Sons with the Parson, though the Admiral were still living with all his Wealth, Virtues, Titles and Victories.
The proposed Amendment to the Constitution, to make the Judges removeable by Address of the two houses alarms me. The Question was debated in Boston yesterday in our H. of Reps. I have not heard the Result. I am grieved to see that you favour the Amendment! What can be at the bottom of this Maneuvre? Is it for the express or implied Purpose of removing Marshall Cushing and Chace? According to present Appearance if that Amendment was now in Force, those three Judges at least would be discarded before Congress would rise. The Independence of the Judges is fortified in our national Constitution beyond all former Example. So much the better. It is the only Security of our Lives, and Liberties. Our Executive is the Creature of a Party: our Legislature in both Houses is the Creature of a Party: nothing remains but the Judiciary which has any Appearance of independence of Party. The Spirit of Party is insatiable. If this Amendment is embraced it will not be long before others will be proposed, to make their Commissions during pleasure, to limit them to a few Years, or to make the Judgs eligible by Congress or by the People for Six Years, for four Years, for two Years, or for one. To this Part of the Constitution I say esto perpetua.
Educated and living for fifty Years in a profound Veneration for the Rules of Evidence and the order of Proceedings, the ordo Judiciorum of the Common Law in our Trybunals of Justice I lamented what I thought too much Levity of Expression relative to those Subjects in your Report in the Case of John Smith. Though the discretion of the Senate may be above the Law I would never exercise it but according to Law.
But to return to the Judiciary. The Independence of the Judges appears to me to be our best Security against the Passions and Power of Parties. The great division of our Country into a northern and a Southern Interest, will be a perpetual Source of Parties and Struggles. Sometimes one and sometimes the other will predominate, and independent Judges will be the best protectors against the Violence and Excesses of the prevailing Party. In Addition to this formidable Cause of discord, We have all others which other Nations have experienced. We have the great divisions of the rich and the poor, Creditors and Debtors. In England the Prerogatives of the Crown, have been able to ballance these Parties and restrain the Excesses of both by independent Judges, by prohibiting Usury and by Bankrupt Laws. An American Statesman ought every Year of his Life to read the Roman History: especially Dionysius Hallicarnassensis. Livy is manifestly too much of an Aristocrat, though in general he agrees with Dionysius. The Creditors in Rome, threw Cassius down the Tarpeian Rock, killed Mælius without Judge or Jury by Cincinnatus’s Master of the Horse, and precipitated Manlius down the Tarpeian Rock from the Principle of Patrician Envy and the Jealousy of Camillus. The Grachi afterwards fell in a Similar Struggle. All these Things were done by the Struggles between Debtor and Creditor. Patricians like Cincinnatus and Camillus and many others, by abstaining from Usury, by professing Poverty and a Contempt of Riches, gained the Esteem of Plebeians and Debtors and at the same time asserting in the highest Tone, the Authority of the Senate and the Claims of Creditors, became Consuls, Generals and Dictators and sacrificed all their Rivals, who presumed to compassionate the People.
It was a Principle established at Rome from the foundation of the City that Debtors who could not pay should be delivered to their Creditors, as Slaves. The Creditors, all Usurers, practised intollerable Cruelties on their Debtors the description of which cannot be read without horror. These Cruelties first produced the Secession of the People to the Sacred Mountain.
Fifty Years afterwards by the Law of the Twelve Tables, the Creditors had the same Rights over their Debtors. If the Debt was not paid, the Debtor was condemned to loose his head, or be Sold as a Slave. This was not all. The Creditors were permitted to cutt the Body of a Debtor to pices and divide him among them. All this was pretended to be to inspire horror for the breach of Faith, in the commerce of the World and civil Society. The Principle was good and ought to be held Sacred: but the application and abuse of it, was execrable. These Oppressions augmented continually. “Repleri vinctis nobiles domos.” “Ubicumque Patricius habitet, ibi carcerum privatum esse.” Forty Years after a Law passed to give Creditors a right over the fortune only, and not the Persons of the Debtors. Livy condemns this Law “Victum eo die, ob impotentum injuriam unius, ingens vinculum fidei. This Law was no Bulwark against the avarice of Creditors, for forty Years afterwards it was necessary to revive it when the People retired to Janiculum. This Subject of Debts continued to excite Troubles to the End of the Commonwealth. The Senate always favoured the Creditors instead of opposing their Extortions and Oppression, upon the Principle that the Sacred Pledge of public faith, ought never to be retrenched from human Society. Cicero, in his offices, as you well remember, maintains the same Principle “If Faith be not observed, no Commonwealth can subsist: and there is no faith where Debtors, can exempt themselves <
by> from paying their debts.” Another Cause of continual Broils was a new distribution of lands. In later times Cicero says, “to discharge Debtors by Authority, or to pass the Law for the distribution of Lands, is to sap the two principal foundations of the State, of which the one is peace and the other Justice. “So many Efforts were never made as in my Consulship, for remitting Debts. Arms were taken up and Troops raised, and persons of all Ranks and Conditions, Cataline and Caesar among others entered into the Conspiracy. But they found so vigorous an Opposer in me, that the Commonwealth was entirely deliverd from that danger.” There never were So many debtors, nor were ever payments made with more fidelity. When People saw themselves incapable of Using fraud they thought only of discharging themselves. In all this Cicero was right. Nevertheless Usury was at a most horrid Excess. The Patriots Pompey, Brutus &c. And the Philosopher Seneca had Money at Interest and some of them at the rate of twelve per Cent a month. In Such a State of Things how was it possible that the Debtors and Plebeians should not find a Cæsar to lead them and throw of the Yoke. Notwithstanding Ciceros boast of his Efforts and Success the Evil was not eradicated, as he soon found at the expence of his head and Lands.
Our Situation resembles that of Rome, if it is not worse. We have no permanent Senate to keep the People Steady. Our old Families and great fortunes are grasping at immense Tracts of wild Lands, to lay the foundations for great Estates for their Posterity: desperate Debtors and unthinking Plebeians wander into the Wilderness, Seize upon Lands wherever they please, without title, clear a few Acres, build log houses, sell these Improvements to new Comers and remove to commit fresh Trespasses and Intrusions. The Proprietors fill the Courts with Actions of Ejectment, Combinations are formed to resist the Laws. Our Eastern People are on the Point of Insurrection. The Pensylvania Rebellion was excited by this cause more than by the excize Law or Stamp Act, and the Frontiers are kept in a State of Effervescence from St. Croix to Missisippi. This is one Cause of a growing Envy and Hatred of the common People against the Gentlemen. our Paper Money our Banks and Corporations are made the Instruments of Accumulating Wealth, which is loaned at two per Cent a Month. Fortunes of Creditors grow up like Musrooms and impoverished Debtors break by dozens and others by hundreds live in continual fear of failing. This is another Source of Envy and hatred of the common People against the Gentry.
Washington like Camillus and Cincinnatus, by professing disinterestedness as sincerely as either, gained an immense Popularity among the common People, and by espousing the Cause of Proprietors and Creditors acquired an equally transcendant Applause among them. Hamilton by professing a disinterest which no body believed, but by aiding and abetting the Creditors, became their Idol.
Jefferson and Madison and Burr, by seeming to favour the Debtors and by opposing the Claims of the Creditors, undermined their Influence and became the favourites of the Debtors. Burr too by the Same System obtained his Popularity: but he could Speculate and form a Manhattan Bank, the great Catapulto that beat down the Walls of federalism, and preserve his popularity with the Debtors at the same time. He got rid of his great rival Hamilton, not quite so clerverly or legally as Cincinnatus did of Mælius and Camillus of Manlius, but very effectually and has hitherto Sett the Laws at Defyance. our Parties will perpetually produce such Characters and such revolutions and as our Legislature and Executive will be always under the Influence of the prevailing Party, I say We have no Security, but in the total and absolute Independence of the Judges. I cannot but consider the Acquittal of Burr as the Effet of this independence and a proof of its importance. Our Treason Laws may be defective, but I believe Marshalls Conduct strictly and correctly legal as the Laws now Stand. I am therefore zealously against any innovation, though our Senate have agreed to the Amendment and you will probably have instructions to vote for it. I know not how you will think yourself obliged to vote, and pretend not to advise you. But I shall forever lament the prevalence of Party Spirit so far as to shake this Pillar of our Constitution.
I write Letters too, fit only to be burnt. Inclosed is one which I determined to burn, and I desire you to do it, or send it back to me for that purpose for I am ashamed to send it where it was intended.
My dear Son, I can do nothing for You or my Country but pray for the Prosperity of both as I do very Sincerely. To the Wisdom and Goodness of divine Providence I resign both, imploring its direction in this very difficult time.
MHi: Adams Papers.