I

Having adverted to the courts of juitice, may I beg leave to introduce a word concerning the courts of equity? This eftablishment might have proved useful in England, during its fubjection to the polity of the fiefs, and when the laws were unavoidably equivocal, rude and undigested. What, during fuch a period, was the least bad might pafs for good. But, America remains no. longer under the fame circumstances. fhould much like to have the judges follow the letter of the law. If it appear to them, in certain cafes, either obfcure or unjuft, instead of erecting themselves into legislators, let them confult the legislative power. I dread left the courts of equity, under the pretence of deciding according to the letter of the law, fhould corrupt it, and, by imparting to it an arbitrary disposition, pervert its nature. My apprehenfions appear to rest upon a stronger ground when I reflect (nor do I think myself mistaken) that, amongst all the nations of Europe, the civi

lians have availed themselves of their abili ties folely for the purpose of rendering the meaning of the law obfcure and indecifive. To this are they indebted for their confequence: and we, indeed, should stand much lefs in need of them if they did not conduct us through the dark windings of a labyrinth. I muft again repeat: if any law fhould prove equivocal, or Teem too rigid and hoftile to the rules and dictates of humanity, it then becomes neceffary to recur to the legislative power; which alone enjoys the right of introducing its own amendments; and it is a point of high concern to the fecurity and quiet of the citizens, that no court of justice should, at its own difcretion, affume a jurifprudence which may eafily degenerate into intolerable tyranny; because it will quickly become obedient to all the paffions of the judges.

You must forgive my freedom, when I declare that, in these American conftitu

tions are several laws which it is impoffible to avoid approving and condemning, at the fame moment. For inftance: the republic of Maffachufets enacts that "as, in time of

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peace, armies are dangerous to liberty, they

"ought not to be maintained without the con

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fent of the legislature;" and next adds that "the military power shall always be held in "exact fubordination to the civil authority and "be governed by it". This law clearly and excellently points out, but does not prevent, the danger. Wherefore has it referred only to the times of peace+? Is it because,

• Conftitution of Maffachufets; part 1. chap. 17.

during

+ Abbé de Mably, though right in point of argument, appears to have fet out upon a wrong principle. Surely, to declare that the military power fhall always be holden in exac fubordination to the civil authority and governed by it, is a provifion equally and pointedly allufive to times of war and peace, And, ftrictly, in the fame meaning, are the following clauses:

"The military fhould be kept under strict fubordination to, "and governed by the civil power."

Conftitution of Pennfylvania; fect. 13.

"A well

during a state of war, armies are less disposed to remain under a subjection to the civil power? Perfons endued even with considerable understanding would feel a difficulty in affenting to this paradox. And, in

"A well-regulated militia is the proper, natural and safe "defence of a free government."

"Standing armies are dangerous to liberty, and ought not to be raised or kept up without the confent of the legifla"ture."

"In all cafes, and at all times, the military ought to be "under ftria fubordination to, and governed by, the civil power."

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"No foldier ought to be quartered in any house, in time of peace, without the consent of the owner; and, in time of war, in such manner only as the legislator sball direct:” Conftitution of Delaware; fect. 19, 20, 21.

:

"In time of war, quarters (for foldiers) ought not to be "made but by the civil magiftrate, in a manner ordained by the legiflator." Conftitution of Maffachufets; part 1. art. 27.

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Three claufes in the conftitution of Maryland contain exactly the fame words as the foregoing.

And almost literatim with these is another clause in the declaration of rights by the North Carolinians. Even a smaller quantity of plain and sterling sense would have proved fufficient to overthrow the paradox in question. K.

deed, too often do we read, from history, of generals who have inspired their troops with fome portion of their own ambition. The end of this law is vague and mutilated. The question is not that the army ought to continue in fubordination to the civil power; for, fuch a truth is trivial; and it behoves the legislator to employ all poffible means and measures, in order that this fubordination, being once established, may exist, secure from every derangement. What numerous precautions are neceffary in a free ftate, for the purpose of making good foldiers, yet never venturing to turn their power to unbecoming uses! These points neglected, the times will reproduce a Sylla, a Marius, a Cæfar, a Cromwell, or a Valftein.

In the conftitution of the ftate of New York" it is enacted that the militia, at all "times thereafter, as well in peace as in war,