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Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

These are powerful words. They are seditious words. They are words that can get you thrown in jail. Or even banned from social media platforms.

But they are also words that strike terror into the hearts of tyrants. Here’s the whole passage from where the quote came from.

All men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. —That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, —That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Do you recognize where that came from? Right, those are Thomas Jefferson’s words from the Declaration of Independence. Jefferson was very clear here. When a government becomes destructive to life, liberty, and the pursuit of happiness the people have a right to alter or abolish the government.

Jefferson wasn’t playing fast and loose with political rhetoric. He was simply reiterating a political concept that had been developed over a thousand years by scholars such as Augustine, Aquinas, John Calvin, John of Salisbury (Policraticus), and those who wrote the Magna Carta and the Magdeburg Confession.

Jefferson understood the weight of the action he was invoking. It was not something that was lightly considered or to be rushed into. He said the action had to be taken with great prudence.

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

Nonetheless, the people have a right to choose a new government when that government becomes despotic.

For the Christian, though, the question has always been: what constitutes a despotic or tyrannical government? And when does the Christian say enough is enough?

David Kopel in The Morality of Self-Defense and Military Action gives us one example from Salisbury’s main work, Policraticus (published 1159):

John explained that a good Christian should not be expected to obey the law or a superior’s order in all circumstances, for ‘Some things are … so detestable that no command will possibly justify them or render them permissible.’ For example, a military commander might order soldiers to deny the existence of God or to commit adultery. Similarly, if a prince ‘resists and opposes the divine commandments, and wishes to make me share in his war against God, then with unrestrained voice I must answer back that God must be preferred before any man on earth.’

That last example Salisbury presents is a little less clear than his first one. Indeed these issues are not easy to grapple with. But they must be grappled with regardless.

During Jefferson’s time, Christian men were a little more forthright in how to recognize an evil government. Samuel West in an Election Day sermon gave what was probably the most insightful Christian perspective on how we should view the theological nature of the concepts that were behind Jefferson and other founders’ seditious thoughts.

Here is his sermon in its entirety. It’s long, but it’s worth it to read it to its conclusion.

PUT THEM IN MIND TO BE SUBJECT TO PRINCIPALITIES AND POWERS, TO OBEY MAGISTRATES, TO BE READY TO EVERY GOOD WORK.- Titus iii. 1.

The great Creator, having designed the human race for society, has made us dependent on one another for happiness. He has so constituted us that it becomes both our duty and interest to seek the public good; and that we may be the more firmly engaged to promote each other’s welfare, the Diety has endowed us with tender and social affections, with generous and benevolent principles: hence the pain that we feel in seeing an object of distress; hence the satisfaction that arises in relieving the afflictions, and the superior pleasure which we experience in communicating happiness to the miserable. The Diety has also invested us with moral powers and faculties, by which we are enabled to discern the difference between right and wrong, truth and falsehood, good and evil: hence the approbation of mind that arises upon doing a good action, and the remorse of conscience which we experience when we counteract the moral sense and do that which is evil. This proves that, in what is commonly called a state of nature, we are the subjects of the divine law and government; that the Diety is our supreme magistrate, who has written his law in our hearts, and will reward or punish us according as we obey or disobey his commands. Had the human race uniformly persevered in a state of moral rectitude, there would have been little or no need of any other law besides that which is written in the heart,- for every one in such a state would be a law unto himself. There could be no occasion for enacting or enforcing of penal laws; for such are “not made for the righteous man, but for the lawless and disobedient, for the ungodly, and for sinners, for the unholy and profane, for murderers of fathers and murderers of mothers, for manslayers, for whoremongers, for them that defile themselves with mankind, for men-stealers, for liars, for perjured persons, and if there be any other thing that is contrary to “moral rectitude and the happiness of mankind. The necessity of forming ourselves into politic bodies, and granting to our rulers a power to enact laws for the public safety, and to enforce them by proper penalties, arises from our being in a fallen and degenerate state. The slightest view of the present state and condition of the human race is abundantly sufficient to convince any person of common sense and common honesty that civil government is absolutely necessary for the peace and safety of mankind; and, consequently, that all good magistrates, while they faithfully discharge the trust reposed in them, ought to be religiously and conscientiously obeyed. An enemy to good government is an enemy not only to his country, but to all mankind; for he plainly shows himself to be divested of those tender and social sentiments which are characteristic of a human temper, even of that generous and benevolent disposition which is the peculiar glory of a rational creature. An enemy to good government has degraded himself below the rank and dignity of a man, and deserves to be classed with the lower creation. Hence we find that wise and good men, of all nations and religions, have ever inculcated subjection to good government, and have borne their testimony against the licentious disturbers of the public peace.

Nor has Christianity been deficient in this capital point. We find our blessed Saviour directing the Jews to render to Caesar the things that were Caesar’s; and the apostles and first preachers of the gospel not only exhibited a good example of subjection to the magistrate, in all things that were just and lawful, but they have also, in several places in the New Testament, strongly enjoined upon Christians the duty of submission to that government under which Providence had placed them. Hence we find that those who despise government, and are not afraid to speak evil of dignities, are, by the apostles Peter and Jude, classed among those presumptuous, self-willed sinners that are reserved to the judgment of the great day. And the apostle Paul judged submission to civil government to be a matter of such great importance, that he thought it worth his while to charge Titus to put his hearers in mind to be submissive to principalities and powers, to obey magistrates, to be ready to every good work; as much as to say, none can be ready to every good work, or be properly disposed to perform those actions that tend to promote the public good, who do not obey magistrates, and who do not become good subjects of civil government. If, then, obedience to the civil magistrates is so essential to the character of a Christian, that without it he cannot be disposed to perform those good works that are necessary for the welfare of mankind,- if the despisers of governments are those presumptuous, self-willed sinners who are reserved to the judgment of the great day,- it is certainly a matter of the utmost importance to us all to be thoroughly acquainted with the nature and extent of our duty, that we may yield the obedience required; for it is impossible that we should properly discharge a duty when we are strangers to the nature and extent of it.

In order, therefore, that we may form a right judgment of the duty enjoined in our text, I shall consider the nature and design of civil government, and shall show that the same principles which oblige us to submit to government do equally oblige us to resist tyranny; or that tyranny and magistracy are so opposed to each other that where the one begins the other ends. I shall then apply the present discourse to the grand controversy that at this day subsists between Great Britain and the American colonies.

That we may understand the nature and design of civil government, and discover the foundation of the magistrate’s authority to command, and the duty of subjects to obey, it is necessary to derive civil government from its original, in order to which we must consider what “state all men are naturally in, and that is (as Mr. Locke observes) a state of perfect freedom to order all their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave or depending upon the will of any man. “It is a state wherein all are equal,- no one having a right to control another, or oppose him in what he does, unless it be in his own defence, or in the defense of those that, being injured, stand in need of his assistance.

Had men persevered in a state of moral rectitude, every one would have been disposed to follow the law of nature, and pursue the general good. In such a state, the wisest and most experienced would undoubtedly be chosen to guide and direct those of less wisdom and experience than themselves,- there being nothing else that could afford the least show or appearance of any one’s having the superiority or precedency over another; for the dictates of conscience and the precepts of natural law being uniformly and regularly obeyed, men would only need to be informed what things were most fit and prudent to be done in those cases where their inexperience or want of acquaintance left their minds in doubt what was the wisest and most regular method for them to pursue. In such cases it would be necessary for them to advise with those who were wiser and more experienced than themselves. But these advisers could claim no authority to compel or to use any forcible measures to oblige any one to comply with their direction or advice. There could be no occasion for the exertion of such a power; for every man, being under the government of right reason, would immediately feel himself constrained to comply with everything that appeared reasonable or fit to be done, or that would any way tend to promote the general good. This would have been the happy state of mankind had they closely adhered to the law of nature and persevered in their primitive state.

Thus we see that a state of nature, though it be a state of perfect freedom, yet is very far from a state of licentiousness. The law of nature gives men no right to do anything that is immoral, or contrary to the will of God, and injurious to their fellow-creatures; for a state of nature is properly a state of law and government, even a government founded upon the unchangeable nature of the Deity, and a law resulting from the eternal fitness of things. Sooner shall heaven and earth pass away, and the whole frame of nature be dissolved, than any part even the smallest iota, of this law shall ever be abrogated; it is unchangeable as the Deity himself, being a transcript of his moral perfections. A revelation, pretending to be from God, that contradicts any part of natural law, ought immediately to be rejected as an imposture; for the Deity cannot make a law contrary to the law of nature without acting contrary to himself,- a thing in the strictest sense impossible, for that which implies contradiction is not an object of the divine power. Had this subject been properly attended to and understood, the world had remained free from a multitude of absurd and pernicious principles, which have been industriously propagated by artful and designing men, both in politics and divinity. The doctrine of non-resistance and unlimited passive obedience to the worst of tyrants could never have found credit among mankind had the voice of reason been hearkened to for a guide, because such a doctrine would immediately have been discerned to be contrary to natural law.

In a state of nature we have a right to make the persons that have injured us repair the damages that they have done us; and it is just in us to inflict such punishment upon them as is necessary to restrain them from doing the like for the future,- the whole end and design of punishing being either to reclaim the individual punished, or to deter others from being guilty of similar crimes. Whenever punishment exceeds these bounds it becomes cruelty and revenge, and directly contrary to the law of nature. Our wants and necessities being such as to render it impossible in most cases to enjoy life in any tolerable degree without entering into society, and there being innumerable cases wherein we need the assistance of others, which if not afforded we should very soon perish; hence the law of nature requires that we should endeavor to help one another to the utmost of our power in all cases where our assistance is necessary. It is our duty to endeavor always to promote the general good; to do to all as we would be willing to be done by were we in their circumstances; to do justly, to love mercy, and to walk humbly before God. These are some of the laws of nature which every man in the world is bound to observe, and which whoever violates exposes himself to the resentment of mankind, the lashes of his own conscience, and the judgment of Heaven. This plainly shows that the highest state of liberty subjects us to the law of nature and the government of God. The most perfect freedom consists in obeying the dictates of right reason, and submitting to natural law. When a man goes beyond or contrary to the law of nature and reason, he becomes the slave of base passions and vile lusts; he introduces confusion and disorder into society, and brings misery and destruction upon himself. This, therefore, cannot be called a state of freedom, but a state of the vilest slavery and the most dreadful bondage. The servants of sin and corruption are subjected to the worst kind of tyranny in the universe. Hence we conclude that where licentiousness begins, liberty ends.

The law of nature is a perfect standard and measure of action for beings that persevere in a state of moral rectitude; but the case is far different with us, who are in a fallen and degenerate estate. We have a law in our members which is continually warring against the law of the mind, by which we often become enslaved to the basest lusts, and are brought into bondage to the vilest passions. The strong propensities of our animal nature often overcome the sober dictates of reason and conscience, and betray us into actions injurious to the public and destructive of the safety and happiness of society. Men of unbridled lusts, were they not restrained by the power of the civil magistrate, would spread horror and desolation all around them. This makes it absolutely necessary that societies should form themselves into politic bodies, that they may enact laws for the public safety, and appoint particular penalties for the violation of their laws, and invest a suitable number of persons with authority to put in execution and enforce the laws of the state, in order that wicked men may be restrained from doing mischief to their fellow-creatures, that the injured may have their rights restored to them, that the virtuous may be encouraged in doing good, and that every member of society may be protected and secured in the peaceable, quiet possession and enjoyment of all those liberties and privileges which the Deity has bestowed upon him; i.e., that he may safely enjoy and pursue whatever he chooses, that is consistent with the public good. This shows that the end and design of civil government cannot be to deprive men of their liberty or take away their freedom; but, on the contrary, the true design of civil government is to protect men in the enjoyment of liberty.

From hence it follows that tyranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government, and directly contrary to natural law, which is the true foundation of civil government and all politic law. Consequently, the authority of a tyrant is of itself null and void; for as no man can have a right to act contrary to the law of nature, it is impossible that any individual, or even the greatest number of men, can confer a right upon another of which they themselves are not possessed; i.e., no body of men can justly and lawfully authorize any person to tyrannize over and enslave his fellow-creatures, or do anything contrary to equity and goodness. As magistrates have no authority but what they derive from the people, whenever they act contrary to the public good, and pursue measures destructive of the peace and safety of the community, they forfeit their right to govern the people. Civil rulers and magistrates are properly of human creation; they are set up by the people to be the guardians of their rights, and to secure their persons from being injured or oppressed,- the safety of the public being the supreme law of the state, by which the magistrates are to be governed, and which they are to consult upon all occasions. The modes of administration may be very different, and the forms of government may vary from each other in different ages and nations; but, under every form, the end of civil government is the same, and cannot vary: it is like the laws of the Medes and Persians- it altereth not.

Though magistrates are to consider themselves as the servants of the people, seeing from them it is that they derive their power and authority, yet they may also be considered as the ministers of God ordained by him for the good of mankind; for, under him, as the Supreme Magistrate of the universe, they are to act: and it is God who has not only declared in his word what are the necessary qualifications of a ruler, but who also raises up and qualifies men for such an important station. The magistrate may also, in a more strict and proper sense, be said to be ordained of God, because reason, which is the voice of God, plainly requires such an order of men to be appointed for the public good. Now, whatever right reason requires as necessary to be done is as much the will and law of God as though it were enjoined us by an immediate revelation from heaven, or commanded in the sacred Scriptures.

From this account of the origin, nature, and design of civil government, we may be very easily led into a thorough knowledge of our duty; we may see the reason why we are bound to obey magistrates, viz., because they are the ministers of God, and while they promote the welfare of the state,- i.e., while they act in the character of magistrates,- it is the turbulent, factious, and libertine spirit, whenever and wherever it discovers itself. When a people have by their free consent conferred upon a number of men a power to rule and govern them, they are bound to obey them. Hence disobedience becomes a breach of faith; it is violating a constitution of their own appointing, and breaking a compact for which they ought to have the most sacred regard. Such a conduct discovers so base and disingenuous a temper of mind, that it must expose them to contempt in the judgment of all the sober, thinking part of mankind. Subjects are bound to obey lawful magistrates be every tender tie of human nature, which disposes us to consult the public good, and to seek the good of our brethren, our wives, our children, our friends and acquaintance; for he that opposes lawful authority does really oppose the safety and happiness of his fellow-creatures. A factious, seditious person, that opposes good government, is a monster in nature; for he is an enemy to his own species, and destitute of the sentiments of humanity.

Subjects are also bound to obey magistrates, for conscience’ sake, out of regard to the divine authority, and out of obedience to the will of God; for if magistrates are the ministers of God, we cannot disobey them without being disobedient to the law of God; and this extends to all men in authority, from the highest ruler to the lowest officer in the state. To oppose them when in the exercise of lawful authority is an act of disobedience to the Deity, and, as such, will be punished by him. It will, doubtless, be readily granted by every honest man that we ought cheerfully to obey the magistrate, and submit to all such regulations of government as tend to promote the public good; but as this general definition may be liable to be misconstrued, and every man may think himself at liberty to disregard any laws that do not suit his interest, humor, or fancy, I would observe that, in a multitude of cases, many of us, for want of being properly acquainted with affairs of state, may be very improper judges of particular laws, whether they are just or not. In such cases it becomes us, as good members of society, peaceably and conscientiously to submit, though we cannot see the reasonableness of every law to which we submit, and that for this plain reason: if any number of men should take it upon themselves to oppose authority for acts, which may be really necessary for the public safety, only because they do not see the reasonableness of them, the direct consequence will be introducing confusion and anarchy into the state.

It is also necessary that the minor part should submit to the major; e.g., when legislators have enacted a set of laws which are highly approved by a large majority of the community as tending to promote the public good, in this case, if a small number of persons are so happy as to view the matter in a very different point of light from the public, though they have an undoubted right to show the reasons of their dissent from the judgment of the public, and may lawfully use all proper arguments to convince the public of what they judge to be an error, yet, if they fail in their attempt, and the majority still continue to approve of the laws that are enacted, it is the duty of those few that dissent peaceably and for conscience’s sake to submit to the public judgment, unless something is required of them which they judge would be sinful for them to comply with; for in that case they ought to obey the dictates of their own consciences rather than any human authority whatever. Perhaps, also, some cases of intolerable oppression, where compliance would bring on inevitable ruin and destruction, may justly warrant the few to refuse submission to what they judge inconsistent with their peace and safety; for the law of self-preservation will always justify opposing a cruel and tyrannical imposition, except where opposition is attended with greater evils than submission, which is frequently the case where a few are oppressed by a large and powerful majority. Except the above-named cases, the minor ought always to submit to the major; otherwise, there can be no peace nor harmony in society. And besides, it is the major part of a community that have the sole right of establishing a constitution and authorizing magistrates; and consequently it is only the major part of the community that can claim the right of altering the constitution, and displacing the magistrates; for certainly common sense will tell us that it requires as great an authority to set aside a constitution as there was at first to establish it. The collective body, not a few individuals, ought to constitute the supreme authority of the state.

The only difficulty remaining is to determine when a people may claim a right of forming themselves into a body politic, and assume the powers of legislation. In order to determine this point, we are to remember that all men being by nature equal, all the members of a community have a natural right to assemble themselves together, and act and vote for such regulations as they judge are necessary for the good of the whole. But when a community is become very numerous, it is very difficult, and in many cases impossible, for all to meet together and regulate the affairs of the state; hence comes the necessity of appointing delegates to represent the people in a general assembly. And this ought to be looked upon as a sacred and inalienable right, of which a people cannot justly divest themselves, and which no human authority can in equity ever take from them, viz., that no one be obliged to submit to any law except such as are made either by himself or by his representative.

If representation and legislation are inseparably connected, it follows, that when great numbers have emigrated into a foreign land, and are so far removed from the parent state that they neither are or can be properly represented by the government from which they have emigrated, that then nature itself points out the necessity of their assuming to themselves the powers of legislation; and they have a right to consider themselves as a separate state from the other, and, as such, to form themselves into a body politic.

In the next place, when a people find themselves cruelly oppressed by the parent state, they have an undoubted right to throw off the yoke, and to assert their liberty, if they find good reason to judge that they have sufficient power and strength to maintain their ground in defending their just rights against their oppressors; for, in this case, by the law or self-preservation, which is the first law of nature, they have not only an undoubted right, but it is their indispensable duty, if they cannot be redressed any other way, to renounce all submission to the government that has oppressed them, and set up an independent state of their own, even though they may be vastly inferior in numbers to the state that has oppressed them. When either of the aforesaid cases takes place, and more especially when both concur, no rational man, I imagine, can have any doubt in his own mind whether such a people have a right to form themselves into a body politic, and assume to themselves all the powers of a free state. For, can it be rational to suppose that a people should be subjected to the tyranny of a set of men who are perfect strangers to them, and cannot be supposed to have that fellow-feeling for them that we generally have for those with whom we are connected and acquainted; and, besides, through their unacquaintedness with the circumstances of the people over whom they claim the right of jurisdiction, are utterly unable to judge, in a multitude of cases, which is best for them?

It becomes me not to say what particular form of government is best for a community,- whether a pure democracy, aristocracy, monarchy, or a mixture of all the three simple forms. They have all their advantages and disadvantages, and when they are properly administered may, any of them, answer the design of civil government tolerably. Permit me, however, to say, that an unlimited, absolute monarchy, and an aristocracy not subject to the control of the people, are two of the most exceptionable forms of government: firstly, because in neither of them is there a proper representation of the people; and, secondly, because each of them being entirely independent of the people, they are very apt to degenerate into tyranny. However, in this imperfect state, we cannot expect to have government formed upon such a basis but that it may be perverted by bad men to evil purposes. A wise and good would be very loth to undermine a constitution that was once fixed and established, although he might discover many imperfections in it; and nothing short of the most urgent necessity would ever induce him to consent to it; because the unhinging a people from a form of government to which they had been long accustomed might throw them into such a state of anarchy and confusion as might terminate in their destruction, or perhaps, in the end, subject them to the worst kind of tyranny.

Having thus shown the nature, end, and design of civil government, and pointed out the reasons why subjects are bound to obey magistrates,- viz., because in so doing they both consult their own happiness as individuals, and also promote the public good and the safety of the state,- I proceed, in the next place, to show that the same principles that oblige us to submit to civil government do also equally oblige us, where we have power and ability, to resist and oppose tyranny; and that where tyranny begins government ends. For, if magistrates have no authority but what they derive from the people; if they are properly of human creation; if the whole end and design of their institution is to promote the general good, and to secure to men their just rights,- it will follow, that when they act contrary to the end and design of their creation they cease being magistrates, and the people which gave them their authority have the right to take it from them again. This is a very plain dictate of common sense, which universally obtains in all similar cases; for who is there that, having employed a number of men to do a particular piece of work for him, but what would judge that he had a right to dismiss them from his service when he found that they went directly contrary to his orders, and that, instead of accomplishing the business he had set them about, they would infallibly ruin and destroy it? If, then, men, in the common affairs of life, always judge that they have a right to dismiss from their service such persons as counteract their plans and designs, though the damage will affect only a few individuals, much more must the body politic have a right to depose any persons, though appointed to the highest place of power and authority, when they find that they are unfaithful to the trust reposed in them, and that, instead of consulting the general good, they are disturbing the peace of society by making laws cruel and oppressive, and by deriving the subjects of their just rights and privileges. Whoever pretends to deny this proposition must give up all pretence of being master of that common sense and reason by which the Deity has distinguished us from the brutal herd.

As our duty of obedience to the magistrate is founded upon our obligation to promote the general good, our readiness to obey lawful authority will always arise in proportion to the love and regard that we have for the welfare of the public; and the same love and regard for the public will inspire us with as strong a zeal to oppose tyranny as we have to obey magistracy. Our obligation to promote the public good extends as much to the opposing every exertion of arbitrary power that is injurious to the state as it does to the submitting to good and wholesome laws. No man, therefore, can be a good member of the community that is not as zealous to oppose tyranny as he is ready to obey magistracy. A slavish submission to tyranny is a proof of a very solid and base mind. Such person cannot be under the influence of any generous human sentiments, nor have a tender regard for mankind.

Further: if magistrates are no farther ministers of God than they promote the good of the community, then obedience to them neither is nor can be unlimited; for it would imply a gross absurdity to assert that, when magistrates are ordained by the people solely for the purpose of being beneficial to the state, they must be obeyed when they are seeking to ruin and destroy it. This would imply that men were bound to act against the great law of self-preservation, and to contribute their assistance to their own ruin and destruction, in order that they may please and gratify the greatest monsters in nature, who are violating the laws of God and destroying the rights of mankind. Unlimited submission and obedience is due to none but God alone. He has an absolute right to command; he alone has an uncontrollable sovereignty over us, because he alone is unchangeably good; he never will not can require of us, consistent with his nature and attributes, anything that is not fit and reasonable; his commands are all just and good; and to suppose that he has given to any particular set of men a power to require obedience to that which is unreasonable, cruel, and unjust, is robbing the Deity of his justice and goodness, in which consists the peculiar glory of the divine character, and it is representing him under the horrid character of a tyrant.

If magistrates are ministers of God only because the law of God and reason points out the necessity of such an institution for the good mankind, it follows, that whenever they pursue measures directly destructive of the public good they cease being God’s ministers, they forfeit their right to obedience from the subject, they become the pests of society, and the community is under the strongest obligation of duty, both to God and to its own members, to resist and oppose them, which will be so far from resisting the ordinance of God that it will be strictly obeying his commands. To suppose otherwise will imply that the Deity requires of us an obedience that is self-contradictory and absurd, and that one part of his law is directly contrary to the other; i. e., while he commands us to pursue virtue and the general good, he does at the same time require us to persecute virtue, and betray the general good, by enjoining us obedience to the wicked commands of tyrannical oppressors. Can any one not lost to the principles of humanity undertake to defend such absurd sentiments as these? As the public safety is the first and grand law of society, so no community can have a right to invest the magistrate with any power or authority that will enable him to act against the welfare of the state and the good of the whole. If men have at any time wickedly and foolishly given up their just rights into the hands of the magistrate, such acts are null and void, of course; to suppose otherwise will imply that we have a right to invest the magistrate with a power to act contrary to the law of God,- which is as much as to say that we are not the subjects of divine law and government. What has been said is, I apprehend, abundantly sufficient to show that tyrants are no magistrates, or that whenever magistrates abuse their power and authority to the subverting the public happiness, their authority immediately ceases, and that it not only becomes lawful, but an indispensable duty to oppose them; that the principle of self-preservation, the affection and duty that we owe to our country, and the obedience we owe the Deity, do all require us to oppose tyranny.

If it be asked, Who are the proper judges to determine when rulers are guilty of tyranny and oppression? I answer, the public. Not a few disaffected individuals, but the collective body of the state, must decide this question; for, as it is the collective body that invests rulers with their power and authority, so it is the collective body that has the sole right of judging whether rulers act up to the end of their institution or not. Great regard ought always to be paid to the judgment of the public. It is true the public may be imposed upon by a misrepresentation of facts; but this may be said of the public, which cannot always be said of individuals, viz., that the public is always willing to be rightly informed, and when it has proper matter of conviction laid before it its judgment is always right.

This account of the nature and design of civil government, which is so clearly suggested to us by the plain principles of common sense and reason, is abundantly confirmed by the sacred Scriptures, even by those very texts which have been brought by men of slavish principles to establish the absurd doctrine of unlimited passive obedience and non-resistance, as will abundantly appear by examining the two most noted texts that are commonly brought to support the strange doctrine of passive obedience. The first that I shall cite is in 1 Peter ii. 13, 14: “Submit yourselves to every ordinance of man,”- or, rather, as the words ought to be rendered from the Greek, submit yourselves to every human creation, or human constitution,-“for the Lord’s sake, whether it be the king as supreme, or unto governors, as unto them that are sent by him for the punishment of evil-doers, and for the praise of them that do well.” Here we see that the apostle asserts that magistracy is of human creation or appointment; that is, that magistrates have no power or authority but what they derive from the people; that this power they are to exert for the punishment of evildoers, and for the praise of them that do well; i. e., the end and design of the appointment of magistrates is to restrain wicked men, by proper penalties, from injuring society, and to encourage and honor the virtuous and obedient. Upon this account Christians are to submit to them for the Lord’s sake; which is as if he had said, Though magistrates are of mere human appointment, and can claim no power or authority but what they derive from the people, yet, as they are ordained by men to promote the general good by punishing evil-doers and by rewarding and encouraging the virtuous and obedient, you ought to submit to them out of a sacred regard to the divine authority; for as they, in the faithful discharge of their office, do fulfill the will of God, so ye, by submitting to them, do fulfill the divine command. If the only reason assigned by the apostle why magistrates should be obeyed out of a regard to the divine authority is because they punish the wicked and encourage the good, it follows, that when they punish the virtuous and encourage the vicious we have a right to refuse yielding any submission or obedience to them; i. e., whenever they act contrary to the end and design of their institution, they forfeit their authority to govern the people, and the reason for submitting to them, out of regard to the divine authority, immediately ceases; and they being only of human appointment, the authority which the people gave them the public have a right to take from them, and to confer it upon those who are more worthy. So far is this text from favoring arbitrary principles, that there is nothing in it but what is consistent with and favorable to the highest liberty that any man can wish to enjoy; for this text requires us to submit to the magistrate no further than he is the encourager and protector of virtue and the punisher of vice; and this is consistent with all that liberty which the Deity has bestowed upon us.

The other text which I shall mention, and which has been made use of by the favorers of arbitrary government as then great sheet-anchor and main support, is in Rom. Xiii., the first six verses: “Let every soul be subject to the higher powers; for there is no power but of God. The powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God; and they that resist shall receive to themselves damnation; for rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doth evil. Wherefore ye must needs be subject not only for wrath, but also for conscience’ sake. For, for this cause pay you tribute also; for they are God’s ministers, attending continually upon this very thing.” A very little attention, I apprehend, will be sufficient to show that this text is so far from favoring arbitrary government, that, on the contrary, it strongly holds forth the principles of true liberty. Subjection to the higher powers is enjoined by the apostle because there is no power but of God; the powers that be are ordained of God; consequently, to resist the power is to resist the ordinance of God: and he repeatedly declares that the ruler is the minister of God.

Now, before we can say whether this text makes us for or against the doctrine of unlimited passive obedience, we must find out in what sense the apostle affirms that magistracy is the ordinance of God, and what he intends when he calls the ruler the minister of God. I can think but of three possible senses in which magistracy can with any propriety be called God’s ordinance, or in which rulers can be said to be ordained of God as his ministers. The first is a plain declaration from the word of God that such a one and his descendants are, and shall be, the only true and lawful magistrates: thus we find in Scripture the kingdom of Judah to be settled by divine appointment in the family of David. Or,

Secondly, By an immediate commission from God, ordering and appointing such a one by name to be the ruler over the people: thus Saul and David were immediately appointed by God to be kings over Israel. Or, Thirdly, Magistracy may be called the ordinance of God, and rulers may be called the ministers of God, because the nature and reason of things, which is the law of God, requires such an institution for the preservation and safety of civil society. In the two first senses the apostle cannot be supposed to affirm that magistracy is God’s ordinance, for neither be nor any of the sacred writers have entailed the magistracy to any one particular family under the gospel dispensation. Neither does he not any of the inspired writers give us the least hint that any person should ever be immediately commissioned from God to bear rule over the people. The third sense, then, is the only sense in which the apostle can be supposed to affirm that the magistrate is the minister of God, and that magistracy is the ordinance of God; viz, that the nature and reason of things require such an institution for the preservation and safety of mankind. Now, if this be the only sense in which the apostle affirms that magistrates are ordained of God as his ministers, resistance must be criminal only so far forth as they are the ministers of God,i. e., while they act up to the end of their institution, and ceases being criminal when they cease being the ministers of God, i. e., when they act contrary to the general good, and seek to destroy the liberties of the people.

That we have gotten the apostle’s sense of magistracy being the ordinance of God, will plainly appear from the text itself; for, after having asserted that to resist the power is to resist the ordinance of God, and they that resist shall receive to themselves damnation, he immediately adds as the reason of this assertion, “For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doth evil.” Here is a plain declaration of the sense in which he asserts that the authority of the magistrate is ordained of God, viz., because rulers are not a terror to good works, but to the evil; therefore we ought to dread offending them, for we cannot offend them but by doing evil; and if we do evil we have just reason to fear their power; for they bear not the sword in vain, but in this case the magistrate is a revenger to execute wrath upon him that doeth evil: but if we are found doers of that which is good, we have no reason to fear the authority of the magistrate; for in this case, instead of being punished, we shall be protected and encouraged. The reason why the magistrate is called the minister of God is because he is to protect, encourage, and honor them that do well, and to punish them that do evil; therefore it is our duty to submit to them, not merely for fear of being punished by them, but out of regard to the divine authority, under which they are deputed to execute judgement and to do justice. For this reason, according to the apostle, tribute is to be paid them, because, as the ministers of God, their whole business is to protect every man in the enjoyment of his just rights and privileges, and to punish every evil-doer.

If the apostle, then, asserts that rulers are ordained of God only because they are a terror to evil works and a praise to them that do well; if they are ministers of God only because they encourage virtue and punish vice; if for this reason only they are to be obeyed for conscience’ sake; if the sole reason why they have a right to tribute is because they devote themselves wholly to the business of securing to men their just rights, and to the punishing of evil-doers,- it follows, by undeniable consequence, that when they become the pests of human society, when they promote and encourage evil-doers, and become a terror to good works, they then cease being the ordinance of God; they are no longer rulers nor ministers of God; they are so far from being the powers that are ordained of God that they become the ministers of the powers of darkness, and it is so far from being a crime to resist them, that in many cases it may be highly criminal in the sight of Heaven to refuse resisting and opposing them to the utmost of our power, or, in other words, that the same reasons that require us to obey the ordinance of God, do equally oblige us, when we have power and opportunity, to oppose and resist the ordinance of Satan.

Hence we see that the apostle Paul, instead of being a friend to tyranny and arbitrary government, turns out to be a strong advocate for the just rights of mankind, and is for our enjoying all that liberty with which God has invested us; for no power (according to the apostle) is ordained of God but what is an encourager of every good and virtuous action,- “Do that which is good, and thou shalt have praise of the same.” No man need to be afraid of this power which is ordained of God who does nothing but what is agreeable to the law of God; for this power will not restrain us from the exercising any liberty which the Deity has granted us; for the minister of God is to restrain us from nothing but the doing of that which is evil, and to this we have no right. To practise evil is not liberty, but licentiousness. Can we conceive of a more perfect, equitable, and generous plan of government than this which the apostle has laid down, viz., to have rulers appointed over us to encourage us to every good and virtuous action, to defend and protect us in our just rights and privileges, and to grant us everything that can tend to promote our true interest and happiness; to restrain every licentious action, and to punish every one that would injure or harm us; to become a terror of evil-doers; to make and execute such just and righteous laws as shall effectually deter and hinder men from the commission of evil, and to attend continually upon this very thing; to make it their constant care and study, day and night, to promote the good and welfare of the community, and to oppose all evil practices? Deservedly may such rulers be called the ministers of God for good. They carry on the same benevolent design towards the community which the great Governor of the universe does towards his whole creation. ‘Tis the indispensable duty of a people to pay tribute, and to afford an easy and comfortable subsistence to such rulers, because they are the ministers of God, who are continually laboring and employing their time for the good of the community. He that resists such magistrates does, in a very emphatical sense, resist the ordinance if God; he is an enemy to mankind, odious to God, and justly incurs the sentence of condemnation from the great Judge of quick and dead. Obedience to such magistrates is yielding obedience to the will of God, and, therefore, ought to be performed from a sacred regard to the divine authority.

For any one from hence to infer that the apostle enjoins in this text unlimited obedience to the worst of tyrants, and that he pronounces damnation upon those that resist the arbitrary measures of such pests of society, is just as good sense as if one should affirm, that because the Scripture enjoins us obedience to the laws of God, therefore we may not oppose the power of darkness; or because we are commanded to submit to the ordinance of God, therefore we may not resist the ministers of Satan. Such wild work must be made with the apostle before he can be brought to speak the language of oppression! It is as plain, I think, as words can make it, that, according to this text, no tyrant can be a ruler; for the apostle’s definition of a ruler is, that he is not a terror to good works, but to the evil; and that he is one who is to praise and encourage those that do well. Whenever, then, the ruler encourages them that do evil, and is a terror to those that do well,- i. e., as soon as he becomes a tyrant,- he forfeits his authority to govern, and becomes the minister of Satan, and, as such, ought to be opposed.

I know it is said that the magistrates were, at the time when the apostle wrote, heathens, and that Nero, that monster of tyranny, was then Emperor of Rome; that therefore the apostle, by enjoining submission to the powers that then were, does require unlimited obedience to be yielded to the worst of tyrants. Now, not to insist upon what has been often observed, viz., that this epistle was written most probably about the beginning of Nero’s reign, at which time he was a very humane and merciful prince,did everything that was generous and benevolent to the public, and showed every act of mercy and tenderness to particulars, and therefore might at that time justly deserve the character of the minister of God for good to the people,- I say, waiving this, we will suppose that this epistle was written after that Nero was become a monster of tyranny and wickedness; it will by no means follow from thence that the apostle meant to enjoin unlimited subjection to such an authority, or that he intended to affirm that such a cruel, despotic authority was the ordinance of God. The plain, obvious sense of his words, as we have already seen, forbids such a construction to be put upon the, for they plainly imply a strong abhorrence and disapprobation of such a character, and clearly prove that Nero, so far forth as he was a tyrant, could not be the minister of God, not have a right to claim submission from the people; so that this ought, perhaps, rather to be viewed as a severe satire upon Nero, than as enjoining any submission to him.

It is also worthy to be observed that the apostle prudently waived mentioning any particular persons that were then in power, as it might have been construed in an invidious light, and exposed the primitive Christians to the severe resentments of the men that were then in power. He only in general requires submission to the higher powers, because the powers that be are ordained of God. Now, though the emperor might at that time be such a tyrant that he could with no propriety be said to be ordained of God, yet it would be somewhat strange if there were no men in power among the Romans that acted up to the character of good magistrates, and that deserved to be esteemed as the ministers of God for good unto the people. If there were any such, notwithstanding the tyranny of Nero, the apostle might with great propriety enjoin submission to those powers that were ordained of God, and by so particularly pointing out the end and design of magistrates, and giving his definition of a ruler, he might design to show that neither Nero, nor any other tyrant, ought to be esteemed as the minister of God. Or, rather,- which appears to me to be the true sense,- the apostle meant to speak of magistracy in general, without any reference to the emperor, or any other person in power, that was then at Rome; and the meaning of this passage is as if he had said, It is the duty of every Christian to be a good subject of civil government, for the power and authority of the civil magistrate are from God; for the powers that be are ordained of God;i. e., the authority of the magistrates that are now either at Rome or elsewhere is ordained of the Deity. Wherever you find any lawful magistrates, remember, they are of divine ordination. But that you may understand what I mean when I say that magistrates are of divine ordination, I will show you how you may discern who are lawful magistrates, and ordained of God, from those who are not. Those only are to be esteemed lawful magistrates, and ordained of God, who pursue the public good by honoring and encouraging those that do well and punishing all that do evil. Such, and such only, wherever they are to be found, are the ministers of God for good: to resist such is resisting the ordinance of God, and exposing yourselves to the divine wrath and condemnation.

In either of these senses the text cannot make anything in favor of arbitrary government. Nor could he with any propriety tell them that they need not be afraid of the power so long as they did that which was good, if he meant to recommend an unlimited submission to a tyrannical Nero; for the best characters were the likeliest to fall a sacrifice to his malice. And, besides, such an injunction would be directly contrary to his own practice, and the practice of the primitive Christians, who refused to comply with the sinful commands of men in power; their answer in such cases being this, We ought to obey God rather than men. Hence the apostle Paul himself suffered many cruel persecutions because he would not renounce Christianity, but persisted in opposing the idolatrous worship of the pagan world.

This text, being rescued from the absurd interpretations which the favorers of arbitrary government have put upon it, turns out to be a noble confirmation of that free and generous plan of government which the law of nature and reason points out to us. Nor can we desire a more equitable plan of government than what the apostle has here laid down; for, if we consult our happiness and real good, we can never wish for an unreasonable liberty, viz., a freedom to do evil, which, according to the apostle, is the only thing that the magistrate is to refrain us from. To have liberty to do whatever is fit, reasonable, or good, is the highest degree of freedom that rational beings can possess. And how honorable a station are those men placed in, by the providence of God, whose business it is to secure to men this rational liberty, and to promote the happiness and welfare of society, by suppressing vice and immorality, and by honoring and encouraging everything that is honorable, virtuous, and praiseworthy! Such magistrates ought to be honored and obeyed as the ministers of God and the servants of the King of Heaven. Can we conceive of a larger and more generous plan of government than this of the apostle? Or can we find words more plainly expressive of a disapprobation of an arbitrary and tyrannical government? I never read this text without admiring the beauty and nervousness of it; and I can hardly conceive how he could express more ideas in so few words than he has done. We see here, in one view, the honor that belongs to the magistrate because he is ordained of God for the public good. We have his duty pointed out, viz., to honor and encourage the virtuous, to promote the real good of the community, and to punish all wicked and injurious persons. We are taught the duty of the subject, viz., to obey the magistrate for conscience’ sake, because he is ordained of God; and that rulers, being continually employed under God for our good, are to be generously maintained by the paying them tribute; and that disobedience to rulers is highly criminal, and will expose us to the divine wrath.The liberty of the subject is also clearly asserted, viz., that subjects are to be allowed to do everything that is in itself just and right, and are only to be restrained from being guilty of wrong actions. It is also strongly implied, that when rulers become oppressive to the subject and injurious to the state, their authority, their respect, their maintainance, and the duty of submitting to them, must immediately cease; they are then to be considered as the ministers of Satan, and, as such, it becomes our indispensable duty to resist and oppose them.

Thus we see that both reason and revelation perfectly agree in pointing out the nature, end, and design of government, viz., that subjects have a right to do everything that is good, praiseworthy, and consistent with the good of the community, and are only to be restrained when they do evil and are injurious either to individuals or the whole community; and that they ought to submit to every law that is beneficial to the community for conscience’ sake, although it may in some measure interfere with their private interest; for every good man will be ready to forego his private interest for the sake of being beneficial to the public. Reason and revelation, we see, do both teach us that our obedience to rulers is not unlimited, but that resistance is not only allowable, but an indispensable duty in the case of intolerable tyranny and oppression. From both reason and revelation we learn that, as the public safety is the supreme law of the state,-being the true standard and measure by which we are to judge whether any law or body of laws are just or not,- so legislatures have a right to make, and require subjection to, any set of laws that have a tendency to promote the good of the community.

Our governors have a right to take every proper method to form the minds of their subjects so that they may become good members of society. The great difference that we may observe among the several classes of mankind arises chiefly from their education and their laws: hence men become virtuous or vicious, good commonwealthsmen or the contrary, generous, noble, and courageous, or base, mean-spirited, and cowardly, according to the impression that they have received from the government that they are under, together with their education and the methods that have been practiced by their leaders to form their minds in early life. Hence the necessity of good laws to encourage every noble and virtuous sentiment, to suppress vice and immorality, to promote industry, and to punish idleness, that parent of innumerable evils; to promote arts and sciences, and to banish ignorance from among mankind.

And as nothing tends like religion and the fear of God to make men good members of the commonwealth, it is the duty of magistrates to become the patrons and promoters of religion and piety, and to make suitable laws for the maintaining public worship, and decently supporting the teachers of religion. Such laws, I apprehend, are absolutely necessary for the well-being of civil society. Such laws may be made, consistent with all that liberty of conscience which every good member of society ought to be possessed of; for, as there are few, if any, religious societies among us but what profess to believe and practise all the great duties of religion and morality that are necessary for the well-being of society and the safety of the state, let every one be allowed to attend worship in his own society, or in that way that he judges most agreeable to the will of God, and let him be obliged to contribute his assistance to the supporting and defraying the necessary charges of his own meeting. In this case no one can have any right to complain that he is deprived of liberty of conscience, seeing that he has a right to choose and freely attend that worship that appears to him to be most agreeable to the will of God; and it must be very unreasonable for him to object against being obliged to contribute his part towards the support of that worship which he has chosen. Whether some such method as this might not tend, in a very eminent manner, to promote the peace and welfare of society, I must leave to the wisdom of our legislators to determine; be sure it would take off some of the most popular objections against being obliged by law to support public worship while the law restricts that support only to one denomination.

But for the civil authority to pretend to establish particular modes of faith and forms of worship, and to punish all that deviate from the standard which our superiors have set up, is attended with the most pernicious consequences to society. It cramps all free and rational inquiry, fills the world with hypocrits and superstitious bigots-nay, with infidels and skeptics; it exposes men of religion and conscience to the rage and malice of fiery, blind zealots, and dissolves every tender tie of human nature; in short, it introduces confusion and every evil work. And I cannot but look upon it as a peculiar blessing of Heaven that we live in a land where every one can freely deliver his sentiments upon religious subjects, and have the privilege of worshipping God according to the dictates of his own conscience without any molestation or disturbance,- a privilege which I hope we shall ever keep up and strenuously maintain. No principles ought ever to be discountenanced by civil authority but such as tend to the subversion of the state. So long as a man is a good member of society, he is accountable to God alone for his religious sentiments; but when men are found disturbers of the public peace, stirring up sedition, or practicing against the state, no pretense of religion or conscience ought to screen them from being brought to condign punishment. But then, as the end and design of punishment is either to make restitution to the injured or to restrain men from committing the like crimes for the future, so, when these important ends are answered, the punishment ought to cease; for whatever is inflicted upon a man under the notion of punishment after these important ends are answered, is not a just and lawful punishment, but is properly cruelty and base revenge.

From this account of civil government we learn that the business of magistrates is weighty and important. It requires both wisdom and integrity. When either are wanting, government will be poorly administered; more especially if our governors are men of loose morals and abandoned principles; for if a man is not faithful to God and his own soul, how can we expect that he will be faithful to the public? There was a great deal of propriety in the advice that Jethro gave to Moses to provide able men,- men of truth, that feared God, and that hated covetousness,- and to appoint them for rulers over the people. For it certainly implies a very gross absurdity to suppose that those who are ordained of God for the public good should have no regard to the laws of God, or that the ministers of God should be despisers of the divine commands. David, the man after God’s own heart, makes piety a necessary qualification in a ruler: “He that ruleth over men (says he) must be just, ruling in the fear of God.” It is necessary it should be so, for the welfare and happiness of the state; for, to say nothing of the venality and corruption, of the tyranny and oppression, that will take place under unjust rulers, barely their vicious and irregular lives will have a most pernicious effect upon the lives and manners of their subjects: their authority becomes despicable in the opinion of discerning men. And, besides, with what face can they make or execute laws against which they practise with greediness? A people that have a right of choosing their magistrates are criminally guilty in the sight of Heaven when they are governed by caprice and humor, or are influenced by bribery to choose magistrates that are irreligious men, who are devoid of sentiment, and of bad morals and base lives. Men cannot be sufficiently sensible what a curse they may bring upon themselves and their posterity by foolishly and wickedly choosing men of abandoned characters and profligate lives for their magistrates and rulers.

We have already seen that magistrates who rule in the fear of God ought not only to be as the ministers of God, but that they ought also to be handsomely supported, that they may cheerfully and freely attend upon the duties of their station; for it is a great shame and disgrace to society to see men that serve the public laboring under indigent and needy circumstances; and, besides, it is a maxim of eternal truth that the laborer is worthy of his reward.

It is also a great duty incumbent on people to treat those in authority with all becoming honor and respect,- to be very careful of casting any aspersion upon their characters. To despise government, and to speak evil of dignities, is represented in Scripture as one of the worst of characters; and it was an injunction of Moses, “Thou shalt not speak of the ruler of thy people.” Great mischief may ensue upon reviling the character of good rulers; for the unthinking herd of mankind are very apt to give ear to scandal, and when it falls upon men in power, it brings their authority into contempt, lessens their influence, and disheartens them from doing that service to the community of which they are capable; whereas, when they are properly honored, and treated with that respect which is due to their station, it inspires them with courage and a noble ardor to serve the public: their influence among the people is strengthened, and their authority becomes firmly established. We ought to remember that they are men like to ourselves, liable to the same imperfections and infirmities with the rest of us, and therefore, so long as they aim at the public good, their mistakes, misapprehensions, and infirmities, ought to be treated with the utmost humanity and tenderness.

But though I would recommend to all Christians, as a part of the duty that they owe to magistrates, to treat them with proper honor and respect, none can reasonably suppose that I mean that they ought to be flattered in their vices, or honored and caressed while they are seeking to undermine and ruin the state; for this would be wickedly betraying our just rights, and we should be guilty of our own destruction. We ought ever to persevere with firmness and fortitude in maintaining and contending for all that liberty that the Deity has granted us. It is our duty to be ever watchful over our just rights, and not suffer them to be wrested out of our hands by any of the artifices of tyrannical oppressors. But there is a wide difference between being jealous of our rights, when we have the strongest reason to conclude that they are invaded by our rulers, and being unreasonably suspicious of men that are zealously endeavoring to support the constitution, only because we do not thoroughly comprehend all their designs. The first argues a noble and generous mind; the other, a low and base spirit.

Thus have I considered the nature of the duty enjoined in the text, and have endeavored to show that the same principles that require obedience to lawful magistrates do also require us to resist tyrants; this I have confirmed from reason and Scripture.

It was with a particular view to the present unhappy controversy that subsists between us and Great Britain that I chose to discourse upon the nature and design of government,and the rights and duties both of governors and governed, that so, justly understanding our rights and privileges, we may stand firm in our opposition to ministerial tyranny, while at the same time we pay all proper obedience and submission to our lawful magistrates; and that, while we are contending for liberty, we may avoid running into licentiousness; and that we may preserve the due medium between submitting to tyranny and running into anarchy. I acknowledge that I have undertaken a difficult task; but, as it appeared to me, the present state of affairs loudly called for such a discourse; and, therefore, I hope the wise, the generous, and the good, will candidly receive my good intentions to serve the public. I shall now apply this discourse to the grand controversy that at this day subsists between Great Britain and the American colonies.

And here, in the first place, I cannot but take notice how wonderfully Providence has smiled upon us by causing the several colonies to unite so firmly together against the tyranny of Great Britain, though differing from each other in their particular interest, forms of government, modes of worship, and particular customs and manners, besides several circumstances that had subsisted among them. That, under these circumstances, such a union should take place as we now behold, was a thing that might rather have been wished than hoped for.

And, in the next place, who could have thought that, when our charter was vacated, when we became destitute of any legislative authority, and when our courts of justice in many parts of the country were stopped, so that we could neither make nor execute laws upon offenders,- who, I say, would have though, that in such a situation the people should behave so peaceably, and maintain such good order and harmony among themselves? This is a plain proof that they, having not the civil law to regulate themselves by, became a law unto themselves; and by their conduct they have shown that they were regulated by the law of God written in their hearts. This is the Lord’s doing, and it ought to be marvelous in our eyes.

From what has been said in this discourse, it will appear that we are in the way of our duty in opposing the tyranny of Great Britain; for, if unlimited submission is not due to any human power, if we have an undoubted right to oppose and resist a set of tyrants that are subverting our just rights and privileges, there cannot remain a doubt in any man, that will calmly attend to reason, whether we have a right to resist and oppose the arbitrary measures of the King and Parliament; for it is plain to demonstration, nay, it is in a manner self-evident, that they have been and are endeavoring to deprive us not only of the privileges of Englishmen, and our charter rights, but they have endeavored to deprive us of what is much more sacred, viz., the privileges of men and Christians; i. e., they are robbing us as men and rational beings, and has confirmed to us in his written word as Christians and disciples of that Jesus who came to redeem us from the bondage of sin and the tyranny of Satan, and to grant us the most perfect freedom, even the glorious liberty of the sons and children of God; that here they have endeavored to deprive us of the sacred charter of King of Heaven. But we have this for our consolation: the Lord reigneth; he governs the world in righteousness, and will avenge the cause of the oppressed when they cry unto him. We have made our appeal to Heaven, and we cannot doubt but that the Judge of all the earth will do right.

Need I upon this occasion descend to particulars? Can any one be ignorant what the things are of which we complain? Does not every one know that the King and Parliament have assumed the right to tax us without our consent? And can any one be so lost to the principles of humanity and common sense as not to view their conduct in this affair as a very grievous imposition? Reason and equity require that no one be obliged to pay a tax that he has never consented to, either by himself or by his representative. But, as Divine Providence has placed us at so great a distance from Great Britain that we neither are nor can be properly represented in the British Parliament, it is a plain proof that the Deity designed that we should have the powers of legislation and taxation among ourselves; for can any suppose it to be reasonable that a set of men that are perfect strangers to us should have the uncontrollable right to lay the most heavy and grievous burdens upon us that they please, purely to gratify their unbounded avarice and luxury? Must we be obliged to perish with cold and hunger to maintain them in idleness, in all kinds of debauchery and dissipation? But if they have the right to take our property from us without our consent, we must be wholly at their mercy for our food and raiment, and we know by sad experience that their tender mercies are cruel.

But because we were not willing to submit to such an unrighteous and cruel decree,- though we modestly complained and humbly petitioned for a redress of our grievances,- instead of hearing our complaints, and granting our requests, they have gone on to add iniquity to transgression, by making several cruel and unrighteous acts. Who can forget the cruel act to block up the harbor of Boston, whereby thousands of innocent persons must have been inevitably ruined had they not been supported by the continent? Who can forget the act for vacating our charter, together with many other cruel acts which it is needless to mention? But, not being able to accomplish their wicked purposes by mere acts of Parliament, they have proceeded to commence open hostilities against us, and have endeavored to destroy us by fire and sword. Our towns they have burnt, our brethren they have slain, our vessels they have taken, and our goods they have spoiled. And, after all this wanton exertion of arbitrary power, is there the man that has any of the feeling of humanity left who is not fired with a noble indignation against such merciless tyrants, who have not only brought upon us all the horrors of a civil war, but they also added a piece of barbarity unknown to Turks and Mohammedan infidels, yea, such as would be abhorred and detested by the savages of the wilderness,- I mean their cruelly forcing our brethren whom they have taken prisoners, without any distinction of whig or tory, to serve on board their ships of war, thereby obliging them to take up arms against their own countrymen, and to fight against their brethren, their wives, and their children, and to assist in plundering their own estates! This, my brethren, is done by men who call themselves Christians, against their Christian brethren,- against men who till now gloried in the name of Englishmen, and who were ever ready to spend their lives and fortunes in the defence of British rights. Tell it not in Gath, publish it not in the streets of Askelon, lest it cause our enemies to rejoice and our adversaries to triumph! Such a conduct as this brings a great reproach upon the profession of Christianity; nay, it is a great scandal even to human nature itself.

It would be highly criminal not to feel a due resentment against such tyrannical monsters. It is an indispensable duty, my brethren, which we owe to God and our country, to rouse up and bestir ourselves, and, being animated with a noble zeal for the sacred cause of liberty, to defend our lives and fortunes, even to the shedding the last drop of blood. The love of our country, the tender affection that we have for our wives and children, the regard we ought to have for unborn posterity, yea, everything that is dear and sacred, do now loudly call upon us our best endeavors to save our country. We must beat our ploughshares into swords, and our pruning-hooks into spears, and learn the art of self-defence against our enemies. To be careless and remiss, or to neglect the cause of our country through the base motives of avarice and self-interest, will expose us not only to the resentments of our fellow-creatures, but to the displeasure of God Almighty; for to such base wretches, in such a time as this, we may apply with the utmost propriety that passage in Jeremiah xlviii. 10: “Cursed be he that doth the work of the Lord deceitfully, and cursed be he that keepeth back his sword from blood.” To save our country from the hands of our oppressors ought to be dearer to us even than our own lives, and, next the eternal salvation of our own souls, is the thing of the greatest importance,- a duty so sacred that it cannot justly be dispensed with for the sake of our secular concerns. Doubtless for this reason God has been pleased to manifest his anger against those who have refused to assist their country against its cruel oppressors. Hence, in a case similar to ours, when the Israelites were struggling to deliver themselves from the tyranny of Jabin, the King of Canaan , we find a most bitter curse denounced against those who refused to grant their assistance in the common cause; see Judges v. 23: “Curse ye Meroz, said the angel of the Lord, curse ye bitterly the inhabitants thereof; because they came not to the help of the Lord, to the help of the Lord against the mighty.

Now, if such a bitter curse is denounced against those who refused to assist their country against its oppressors, what dreadful doom are those exposed to who have not only refused to assist their country in this time of distress, but have, through motives of interest or ambition, shown themselves enemies to their country by opposing us in the measures that we have taken, and by openly favoring the British Parliament! He that is so lost to humanity as to be willing to sacrifice his country for the sake of avarice or ambition, has arrived to the highest stage of wickedness that human nature is capable of, and deserves a much worse name than I at present care to give him. But I think I may with propriety say that such a person has forfeited his right to human society, and that he ought to take up his abode, not among the savage men, but among the savage beasts of the wilderness.

Nor can I wholly excuse from blame those timid persons who, through their own cowardice, have been induced to favor our enemies, and have refused to act in defence of their country; for a due sense of the ruin and destruction that our enemies are bringing upon us is enough to raise such a resentment in the human breast that would, I should think, be sufficient to banish fear from the most timid male. And, besides, to indulge cowardice in such a cause argues a want of faith in God; for can he that firmly believes and relies upon the providence of God doubt whether he will avenge the cause of the injured when they apply to him for help? For my own part, when I consider the dispensations of Providence towards this land ever since our father first settled in Plymouth, I find abundant reason to conclude that the great Sovereign of the universe has planted a vine in this American wilderness which he has caused to take deep root, and it has filled the land, and that he will never suffer it to be plucked up or destroyed.

Our fathers fled from the rage of prelatical tyranny and persecution and came into this land in order to enjoy liberty of conscience, and they have increased to a great people. Many have been the interpositions of Divine Providence on our behalf, both in our fathers’ days and ours; and, though we are now engaged in a war with Great Britain, yet we have been prospered in a most wonderful manner. And can we think that he who has thus far helped us will give us up into the hands of our enemies? Certainly he that has begun to deliver us will continue to show his mercy towards us, in saving us from the hands of our enemies: he will not forsake us if we do not forsake him. Our cause is so just and good that nothing can prevent our success but only our sins. Could I see a spirit of repentance and reformation prevail through the land, I should not have the least apprehension or fear of being brought under the iron rod of slavery, even though all the powers of the globe were combined against us. And though I confess that the irreligion and profaneness which are so common among us gives something of a damp to my spirits, yet I cannot help hoping, and even believing, that Providence has designed this continent for to be the asylum of liberty and true religion; for can we suppose that the God who created us free agents, and designed that we should glorify and serve him in the world that we might enjoy him forever hereafter, will suffer liberty and true religion to be banished from off the face of the earth? But do we not find that both religion and liberty seem to be expiring and gasping for life in the other continent?- where, then, can they find a harbor or place of refuge but in this?

There are some who pretend that it is against their consciences to take up arms in defence of their country; but can any rational being suppose that the Deity can require us to contradict the law of nature which he has written in our hearts, a part of which I am sure is the principle of self-defence, which strongly prompts us all to oppose any power that would take away our lives, or the lives of our friends? Now, for men to take pains to destroy the tender feelings of human nature, and to eradicate the principles of self-preservation, and then to persuade themselves that in so doing they submit to and obey the will of God, is a plain proof how easily men may be led to pervert the very first and plainest principles of reason and common sense, and argues a gross corruption of the human mind. We find such persons are very inconsistent with themselves; for no men are more zealous to defend their property, and to secure their estates from the encroachments of others, while they refuse to defend their persons, their wives, their children, and their country, against the assaults of the enemy. We see to what unaccountable lengths men will run when once they leave the plain road of common sense, and violate the law which God has written in the heart. Thus some have thought they did God service when they unmercifully butchered and destroyed the lives of the servants of God; while others, upon the contrary extreme, believe that they please God while they sit still and quietly behold their friends and brethren killed by their unmerciful enemies, without endeavoring to defend or rescue them. The one is a sin of omission, and the other is a sin of commission, and it may perhaps be difficult to say, under certain circumstances, which is the most criminal in the sight of Heaven. Of this I am sure, that they are, both of them, great violations of the law of God.

Having thus endeavored to show the lawfulness and necessity of defending ourselves against the tyranny of Great Britain, I would observe that Providence seems plainly to point to us the expediency, and even necessity, of our considering ourselves as an independent state. For, not to consider the absurdity implied in making war against a power to which we profess to own subjection, to pass by the impracticability of our ever coming under subjection to Great Britain upon fair and equitable terms, we may observe that the British Parliament has virtually declared us an independent state by authorizing their ships of war to seize all American property, wherever they can find it, without making any distinction between the friends of administration and those that have appeared in opposition to the acts of Parliament. This is making us a distinct nation from themselves. They can have no right any longer to style us rebels; for rebellion implies a particular faction risen up in opposition to lawful authority, and, as such, the factious party ought to be punished, while those that remain loyal are to be protected. But when war is declared against a whole community without distinction, and the property of each party is declared to be seizable, this, if anything can be, is treating us as an independent state. Now, if they are pleased to consider us as in a state of independency, who can object against our considering ourselves so too?

But while we are nobly opposing with our lives and estates the tyranny of the British Parliament, let us not forget the duty which we owe to our lawful magistrates; let us never mistake licentiousness for liberty. The more we understand the principles of liberty, the more readily shall we yield obedience to lawful authority; for no man can oppose good government but he that is a stranger to true liberty. Let us ever check and restrain the factious disturbers of the peace; whenever we meet with persons that are loth to submit to lawful authority, let us treat them with the contempt which they deserve, and even esteem them as the enemies of their country and the pests of society. It is with peculiar pleasure that I reflect upon the peaceable behavior of my countrymen at a time when the courts of justice were stopped and the execution of laws suspended. It will certainly be expected of a people that could behave so well when they had nothing to restrain them but the laws written in their hearts, that they will yield all already and cheerful obedience to lawful authority. There is at present the utmost need of guarding ourselves against a seditious and factious temper; for when we are engaged with so powerful an enemy from without, our political salvation, under God, does, in an eminent manner, depend upon our being firmly united together in the bonds of love to one another, and of due submission to lawful authority. I hope we shall never give any just occasion to our adversaries to reproach us as being men of turbulent dispositions and licentious principles that cannot bear to be restrained by good and wholesome laws, even though they are of our own making, nor submit to rulers of our own choosing. But I have reason to hope much better things of my countrymen, though I thus speak. However, in this time of difficulty and distress, we cannot be too much guarded against the least approaches to discord and faction. Let us, while we are jealous of our rights, take heed of unreasonable suspicions and evil surmises which have no proper foundation; let us take heed lest we hurt the cause of liberty by speaking evil of the ruler of the people.

Let us treat our rulers with all that honor and respect which the dignity of their station requires; but let it be such an honor and respect as is worthy of the sons of freedom to give. Let us ever abhor the base arts that are used fawning parasites and cringing courtiers, who by their low artifices and base flatteries obtain offices and posts which they are unqualified to sustain, and honors of which they are unworthy, and oftentimes have a greater number of places assigned them than any one person of the greatest abilities can ever properly fill, by means of which the community becomes greatly injured, for this reason, that many an important trust remains undischarged, and many an honest and worthy member of society is deprived of those honors and privileges to which he has a just right, whilst the most despicable, worthless courtier is loaded with honorable and profitable commissions. In order to avoid this evil, I hope our legislators will always despise flattery as something below the dignity of a rational mind, and that they will ever scorn the man that will be corrupted or take a bribe. And let us all resolve with ourselves that no motives of interest, nor hopes of preferment shall ever induce us to act the part of fawning courtiers towards men in power. Let the honor and respect which we show out superiors be true and genuine, flowing from a sincere and upright heart.

The honors that have been paid to arbitrary princes have often been very hypocritical and insincere. Tyrants have been flattered in their vices, and have often had an idolatrous reverence paid them. The worst princes have been the most flattered and adored; and many such, in the pagan world, assumed the title of gods, and had divine honors paid them. This idolatrous reverence has ever been the inseperable concomitant of arbitrary power and tyrannical government; for even Christian princes, if they have not been adored under the character of gods, yet the titles given them strongly savor of blasphemy, and the reverence paid them is really idolatrous. What right has a poor sinful worm of the dust to claim the title of his most sacred Majesty? Most sacred certainly belongs only to God alone,- for there is none holy as the Lord,- yet how common is it to see this title given to kings! And how often have we been told the king can do no wrong! Even though he should be so foolish and wicked as hardly to be capable of ever being in the right, yet still must be asserted and maintained that it is impossible for him to do wrong!

The cruel, savage disposition of tyrants, and the idolatrous reverence that is paid them, are both most beautifully exhibited to view by the apostle John in the Revelation, thirteenth chapter, from the first to the tenth verse, where the apostle gives a description of a horrible wild beast which he saw rise out of the sea, having seven heads and ten horns, and upon his heads the names of blasphemy. By heads are to be understood forms of government, and by blasphemy, idolatry; so that it seems implied that there will be a degree of idolatry in every form of tyrannical government. This beast is represented as having the body of a leopard, the feet of a bear, and the mouth of a lion; i. e., a horrible monster, possessed of the rage and fury of the lion, the fierceness of the bear, and the swiftness of the leopard to seize and devour its prey. Can words more strongly point out, or exhibit in more lively colors, the exceeding rage, fury, and impetuosity of tyrants, in their destroying and making havoc of mankind? To this beast we find the dragon gave his power, seat, and great authority; i. e., the devil constituted him to be his vicegerent on earth; this is to denote that tyrants are the ministers of Satan, ordained by him for the destruction of mankind.

Such a horrible monster, we should have thought, would have been abhorred and detested of all mankind, and that all nations would have joined their powers and forces together to oppose and utterly destroy him from off the face of the earth; but, so far are they from doing this, that, on the contrary, they are represented as worshipping him (verse 8): “And all that dwell on the earth shall worship him,” viz., all those “whose names are not written in the Lamb’s book of life;” i. e., the wicked world shall pay him an idolatrous reverence, and worship him with godlike adoration. What can in a more lively manner show the gross stupidity and wickedness of mankind, in thus tamely giving up their just rights into the hands of tyrannical monsters, and in so readily paying them such an unlimited obedience as is due to God alone?

We may observe, further, that these men are said (verse 4) to “worship the dragon;”- not that it is to be supposed that they, in direct terms, paid divine homage to Satan, but that the adoration paid to the beast, who was Satan’s vicegerent, did ultimately centre in him. Hence we learn that those who pay an undue and sinful veneration to tyrants are properly the servants of the devil; they are worshippers of the prince of darkness, for in him all that undue homage and adoration centres that is given to his minsters. Hence that terrible denunciation of divine wrath against the worshippers of the beast and his image: “If any man worship the beast and his image, and receive his mark in his forehead, or in his hand, the same shall drink of the wine of the wrath of God which is poured out without mixture into the cup of his indignation, and he shall be tormented with fire and brimstone in the presence of the holy angels, and in the presence of the Lamb; and the smoke of their torment ascendeth for ever and ever:and they no rest day nor night, who worship the beast and his image, and who receive the mark of his name.” We have here set forth in the clearest manner, by the inspired apostle, God’s abhorrence of tyrant and tyrants, together with the idolatrous reverence that their wretched subjects are wont to pay them, and the awful denunciation of divine wrath against those who are guilty of this undue obedience to tyrants.

Does it not, then, highly concern us all to stand fast in the liberty wherewith Heaven hath made us free, and to strive to get the victory over the beast and his image- over every species of tyranny? Let us look upon a freedom from the power of tyrant as a blessing that cannot be purchased too dear, and let us bless God that he has so far delivered us from that idolatrous reverence which men are so very apt to pay to arbitrary tyrants; and let us pray that he would be pleased graciously to perfect the mercy he has begun to show us by confounding the devices of our enemies and bringing their counsels to nought, and by establishing our just rights and privileges upon such a firm and lasting basis that the power of earth and hell shall not prevail against it.

Under God, every person in the community ought to contribute his assistance to the bringing about so glorious and important an event; but in a more eminent manner does this important business belong to the gentlemen that are chosen to represent the people in this General Assembly, including those that have been appointed members of the Honorable Council Board.

Honored fathers, we look up to you, in this day of calamity and distress, as the guardians of our invaded rights, and the defenders of our liberties against British tyranny. You are called, in Providence, to save your country from ruin. A trust is reposed in you of the highest importance to the community that can be conceived of, its business the most noble and grand, and a task the most arduous and difficult to accomplish that ever engaged the human mind- I mean as to things of the present life. But as you are engaged in the defence of a just and righteous cause, you may with firmness of mind commit your cause to God, and depend on his kind providence for direction assistance. You will have the fervent wishes and prayers of all good men that God would crown all your labors with success, and direct you into such measures as shall tend to promote the welfare and happiness of the community, and afford you all that wisdom and prudence which is necessary to regulate the affairs of state at this critical period.

Honored fathers of the House of Representatives: We trust to your wisdom and goodness that you will be led to appoint such men to be in council whom you know to be men of real principle, and who are of unblemished lives; that have shown themselves zealous and hearty friends to the liberties of America; and men that have the fear of God before their eyes; for such only are men that can be depended upon the uniformly to pursue the general good.

My reverend fathers and brethren in the ministry will remember that, according to our text, it is part of the work and business of a gospel minister to teach his hearers the duty they owe to magistrates. Let us, then, endeavor to explain the nature of their duty faithfully, and show them the difference between liberty and licentiousness; and, while we are animating them to oppose tyranny and arbitrary power, let us inculcate upon them the duty of yielding due obedience to lawful authority. In order to the right and faithful discharge of this part of our ministry, it is necessary that we should thoroughly study the law of nature, the rights of mankind, and the reciprocal duties of governors and governed. By this means we shall be able to guard them against the extremes of slavish submission to tyrants on one hand, and of sedition and licentiousness on the other. We may, I apprehend, attain a thorough acquaintance with the law of nature and the rights of mankind, while we remain ignorant of many technical terms of law, and are utterly unacquainted with the obscure and barbarous Latin that was so much used in the ages of popish darkness and superstition.

To conclude: While we are fighting for liberty, and striving against tyranny, let us remember to fight the good fight of faith, and earnestly seek to be delivered from that bondage of corruption which we are brought into by sin, and that we may be made partakers of the glorious liberty of the sons and children of God: which may the Father of Mercies grant us all, through Jesus Christ. AMEN.

I told you it was long. But if you followed West’s arguments, you’ll now have a better understanding of when a Christian should submit to governing authorities and when they should resist them.

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Understanding Constitutional Taxation: Direct & Indirect Taxes https://historicalspotlight.com/hylton-v-united-states-part-2/ Mon, 11 Oct 2021 00:37:00 +0000 https://historicalspotlight.com/?p=893 Understanding Constitutional Taxation: Direct & Indirect Taxes Read More »

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The federal government is always proposing new things to tax. We know there’s an income tax. But the federal government also taxes things like gasoline, tobacco, alcoholic beverages, airfare and even fishing rods.

These are not sales taxes. They are excise taxes. It’s a tax that either the manufacturer pays when making a product or you pay when purchasing a product.

However, did you ever stop to consider if there are any restrictions on what or how the federal government can tax? Does the United States Constitution even allow the federal government to tax anything it wants, whenever it wants, and in any way it wants?

Many founders of our republic and one notable framer of the Constitution thought the Constitution allowed only limited taxation to the federal government. Others, however, thought the Constitution was much more liberal on what the federal government could tax.

This disagreement eventually led to a tax revolt in Virginia in 1794.

Ironically, the revolt led to a Supreme Court case which many at the time and today thought was poorly decided but would eventually become one of the most important Supreme Court decisions few people have heard of. It was important because it paved the way for ever expanding federal taxation.

Let’s examine the 1796 U.S. Supreme Court case of Hylton vs. The United States to learn what the Constitution actually says about taxation and why a simple tax on carriages exposed a deep ideological split within the new country itself.

Congress Passes a “Carriage Tax” (1794)

In June 1794 the United States Congress passed a tax on the ownership of carriages.

The tax called for a levy,

When the tax came due in September, Daniel Lawrence Hylton, a wealthy Virginia businessman, refused to pay it because in his opinion it was unconstitutional and void.

He was not alone in his refusal to pay the tax.

Virginia jurist and constitutional scholar St. George Tucker wrote to future president James Monroe,

“A friend of yours in this place refused to pay the carriage tax, upon the ground that it was a direct tax, & not imposed according to the Constitution. So did Mr. Pendleton, Mr. Roan[e], Col Taylor, Mr. Page & some others.”

The place was Williamsburg, Virginia. And the men who refused to pay the tax were some of the brightest legal minds in the country.

They, like Hylton, also believed that the tax was unconstitutional and thus void.

Their reasoning went like this:

  • The federal government’s carriage tax was a direct tax.
  • The tax however was not apportioned among the states but directly on the citizens of the states. Therefore, the tax was unconstitutional and thus did not have to be paid.

 At the urging of Alexander Hamilton, the federal government rejected this argument and proceeded to sue Daniel Hylton in federal court for the amount of the tax.

The case eventually made its way to the Supreme Court and became known as Hylton v. United States.

Interestingly, Professor Erik M. Jensen, an authority on taxation from Case Western Reserve University observed,

 Nonetheless, in a 4-0 decision the Court ruled against Hylton.

Justices Chase, Iredell, Paterson, and Wilson unanimously found that the federal government’s direct excise tax on the ownership of carriages was constitutional.

The justices’ opinion was essentially based on two main arguments.

The first went like this:

  • The only direct taxes are land and capitation taxes
  • The carriage tax is neither a land nor a capitation tax
  • Therefore, the carriage tax is an indirect tax and thus constitutional

The second argument was as follows:

  • Direct taxes must be apportioned among the states
  • The carriage tax cannot be apportioned among the states
  • Therefore, the carriage tax is an indirect tax and thus constitutional

Though many at the time considered the justices’ premises to be faulty and believed that the decision was based purely on politics, the case nonetheless became a landmark decision.

While Hylton was decided over two centuries ago, it has played an important role in numerous Supreme Court decisions that have justified the expansion of federal taxation.

Let’s briefly review some of these cases.

Passing Down the Memory Hole

While many today have not heard of Hylton v. United States, it has played a pivotal role in the development of current federal tax policy.

Consider this list of past cases where Hylton’s precedent was used to justify expanded federal taxation:

Though Hilton was instrumental in supporting numerous federal tax policies it seemed to have passed down the memory hole. That is until 2012.

In 2012, Chief Justice John Roberts, in the Supreme Court case of National Federation of Independent Business v. Sebelius, cited the Hylton case in support of his opinion that the Individual Mandate provision of the Affordable Care Act or Obamacare, was constitutional.

By doing so, Roberts followed the lead of a long line of Supreme Court justices who also appealed to Hylton in order to find a new federal tax constitutional.

Let’s take a deeper look at Hylton v. United States and see why it set such an important precedent for past and present Supreme Court cases.

Debating The Constitutional Taxation Clauses: Early Warnings From the Anti-Federalists

For 3 years, from 1787 – 1790, beginning at the Constitutional Convention in Philadelphia and later in state ratification conventions, Federalists and Anti-Federalists debated the merits of the newly proposed U.S. Constitution.

These debates often became contentious and many questioned whether the new Constitution should even be ratified.

Anti-Federalist George Mason, a delegate from Virginia to the Constitutional Convention, declared,

…he would sooner chop off his right hand” than see the Constitution, as it then stood, passed.

Miller, Helen Hill (1975). George Mason, Gentleman Revolutionary. The University of North Carolina Press.

Another Anti-Federalist, Patrick Henry speaking about the newly proposed U.S. Constitution at the Virginia ratifying convention remarked,

“And yet who knows the dangers that this new system may produce; they are out of the sight of the common people: They cannot foresee latent consequences… I see great jeopardy in this new Government.” Speech at the Virginia Ratifying Convention, 5 June 1788

One section of the Constitution the Anti-Federalists were particularly concerned with was the general taxation clause. The clause states,

“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;”

U.S. Constitution Article 1, Section 8, Clause 1

The Anti Federalists, led by Robert Yates and future president James Monroe, believed that the clause was too vague and would eventually allow the federal government unlimited taxing power.

About the clause Yates wrote, 

Yates was not vague on what he thought the clause would entail.

He believed that the clause would eventually lead the Federal government to tyrannically abuse their power to tax.

However, future president James Madison, an architect of the Constitution and Federalist leader, disagreed with Yates’ interpretation of the clause. In Federalist Paper #41 he wrote,

Madison obviously thought that unlimited federal taxation was a misunderstanding of Article 1 Section 8 clause 1. He explained why,

Madison believed that the Anti-federalist’s fears over the general taxation clause were unwarranted.

He argued that there were other enumerations or clauses in the proposed Constitution that would prevent a potential federal government abuse of this clause.

Madison was correct. There are other taxation clauses besides the general taxation clause in the constitution. 

It’s probable that the other federal taxation limiting enumerations Madison was referring to were the direct tax clauses in the Constitution.

These are,

Article 1 Section 9 Clause 4

Article 1 Section 2 Clause 3

They stipulate how direct taxes are to be apportioned among the states. Madison was sure these clauses would restrain federal taxation.

However, what if Madison’s interpretation of the direct tax clauses was different from other federalists leaders?

What if Madison’s interpretation of the direct tax clauses was different from the federalist judges?

What if the federalists did not view the direct tax clauses as a significant check on federal taxation?

As we’ll see, the federalists had a completely different vision of federal taxation than the anti-federalists, including one of their own party, namely James Madison.

Let’s take a look at these opposing ideologies.

Anti-Federalist Warnings Begin to Materialize (1791 -1794)

In spite of the Anti-federalist’s warnings against ratification, on May 29, 1790, Rhode Island became the last of the original 13 states to ratify the United States new Constitution. If anybody had illusions that the ratification of the Constitution would end the ideological clash between the Federalists and the Anti-Federalists, they were seriously mistaken.

In March of 1791, the federal government passed a whiskey excise tax that prompted a revolt by farmers in western Pennsylvania. The Whiskey Rebellion would not end until 1794 when George Washington led out an army of 13,000 men to suppress it.

Interestingly, Alexander Hamilton played a major role in the suppression of this tax rebellion.

Then again in 1794 a federal excise tax on carriages produced another tax rebellion, this time in Virginia. Unlike the Whiskey Rebellion, the federal government did not choose to put this rebellion down by force.

Instead, at the urging of Secretary of State Alexander Hamilton, the federal government sued Daniel Hylton in federal court.

However, it appears that Hamilton’s ultimate goal was to have this suit decided in the Supreme Court.

He wrote in a letter to U.S. Commissioner of the Revenue, Tench Coxe,

“It will be proper to instruct Mr. Carrington [U.S. Supervisor of the Revenue for the District of Virginia] to give facility to a legal decision in any case where it may be desired – taking care to secure an appeal in the last resort to the Supreme Court.” (Julius Goebel, The Law Practice of Alexander Hamilton: Documents and Commentary, Volume 4, p.309.)

Why was Hamilton so determined to have this case decided by the Supreme Court? 

Let’s take a look at the political landscape of the United States from 1792 – 1800 to see if we can answer this question.

THE POLITICAL LANDSCAPE 1792-1800

By 1792 two major parties had emerged from the United States political landscape, the Federalists and the Democratic Republicans (or simply Republicans).

The Republicans included men such as Thomas Jefferson, James Monroe, and James Madison. Interestingly Madison, one of the authors of the Federalist Papers, became associated with the Republicans after 1791.

The Republicans embraced ideas such as a strict interpretation of the Constitution and a federal government with limited powers and thus limited fiscal needs.

George Washington, Alexander Hamilton, and John Adams led the Federalist Party. The party was generally in favor of a liberal interpretation of the new Constitution, an expansive role for the national government, and Hamiltonian fiscal policies.

These opposing ideologies would be the cause of many of the country’s political woes for the next 60 years.

One of the Federalist ’s key fiscal policies included the use of a direct excise tax to raise funds.

Apparently a favorable decision from the court in the Hylton case would validate the constitutionality of such a tax and secure an important means of federal tax revenue in the future.

Events Leading Up to the Carriage Tax

In 1794 while Americans were fighting an Indian war in the Northwest Territory, the British began harassing U.S. merchant ships in the Atlantic. Many believed a two front war was about to ensue.

In response to a seeming need for national defense funding the Congressional Ways and Means committee proposed a number of revenue raising initiatives.

One of the proposed initiatives was the “carriage tax”. Treasury Secretary Alexander Hamilton had twice suggested a similar tax to Congress in 1790 & 1792.

 Again the wording of the tax was as follows,

This meant that if someone owned a carriage or purchased a new one the federal government would assess a tax directly on the owner of that carriage.

James Madison, considered the architect of the Constitution and now a U.S. Representative, as well as several other representatives, objected to the Carriage tax on constitutional grounds.

Their argument went like this.

  • The Carriage tax was a direct tax on a person’s property
  • Article 1 Section 9 Clause 4 of the Constitution mandates that direct taxes had to be apportioned among the states.
  • Therefore, since the tax was placed directly on the person’s property, the tax was unconstitutional and thus void.

In spite of protests by Madison and others, the carriage tax passed and became law.

Madison in a letter to Jefferson lamented,

 “…The tax on carriages succeeded in spite of the Constitution…”

Letter of James Madison to Thomas Jefferson, May 11, 1794

Professor Erik M. Jensen, an authority on taxation from Case Western Reserve Law School, says this about Madison’s opinion of the tax,

Jensen’s observations are insightful. Remember, Madison tried to convince the anti-federalists that other constitutional enumerations would be a safeguard against abusive federal taxation. Jensen identifies this enumeration as the direct tax clause in the constitution.

The new tax took effect in September of 1794 and generated immediate controversy, even to the point of civil disobedience.

The Supreme Court record states,

“Daniel Lawrence Hilton…owned, possessed, and kept one hundred and twenty-five chariots for the conveyance of persons, but exclusively for his own separate use, and not to let out to hire, or for the conveyance of persons for hire.”Hylton v. United States, 3 U.S. (3 Dall.) 171, 176 (1796).

The court also stated that Mr. Hylton had prior knowledge of the Carriage tax but that he,

“… Refused to…pay the duties thereupon as in and by the said recited law is required, alleging that the said law was unconstitutional and void.

In order to understand exactly what the Virginians were protesting and why they thought the tax was unconstitutional, let’s examine the constitutional clauses concerning indirect and direct taxation.

Indirect Taxes

Article 1 Section 8 clause 1 of the Constitution states,

Though the terms duties, imposts, and excises are not explained or explicitly designated as direct or indirect within the Constitution itself, today they are generally considered indirect taxes.

The United States government has provided a general definition of what these terms mean.

About duties it says,

“The term “duty” in its widest significance is hardly less comprehensive than the term “tax.” In its restricted sense it is synonymous with the term “impost.”

The Taxing Power of the Federal and State Governments, United States Government Printing office, 1936 Report to the Joint Committee on Internal Revenue Taxation (h

An impost is defined as a

“custom, or tax levied on articles brought into a country.” (The Taxing Power of the Federal and State Governments, United States Government Printing office, 1936 Report to the Joint Committee on Internal Revenue Taxation (https://www.jct.gov))

Duties and imposts therefore are generally used in relation to a tax on imports. They are also known as tariffs.

An excise has been defined as a tax laid on the manufacture, sale, or consumption of commodities within a country, upon licenses to pursue certain occupations and upon corporate privileges.

The IRS further defines excises taxes as,

“Taxes paid when purchases are made on a specific good, such as gasoline. Excise taxes are often included in the price of the product. There are also excise taxes on activities, such as on wagering or on highway usage by trucks.”http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Excise-Tax

The constitutional clause concerning duties, imposts, and excises specifically mandates that these taxes must be applied uniformly throughout the United States.

This means that a tax on an article or kind of property of the same class shall be taxed at the same rate regardless of geography. In other words, the tax rate must be uniform in all 50 states.

For example, under the Affordable Care Act, Congress imposed a 10% excise tax on tanning salon services.

This means that the federal excise tax on tanning services must be 10% in every state of the Union. No more, no less.

The following is a list of U.S. excise taxes as of 2010.

It is easy to see why the framers included the uniformity clause into the Constitution. It would prevent the federal government from showing favoritism toward one state or another concerning taxation.

However, there are a number of important questions about excise taxes that the Constitution does not answer.

Can some excise taxes be considered direct taxes?

Does the manner in which an excise tax is imposed determine whether it is a direct or indirect tax?

What items or activities can be excised and who determines this?

What happens if federal taxation of a particular item or activity is economically damaging to a particular state or region of the country or to a particular industry and the offended party does not have the votes to repeal the tax?

These unanswered questions will be central in the Hylton case.

Let’s take a look at the direct taxation clauses in the Constitution.

Direct Taxes

There are two direct tax clauses in the U. S. Constitution. Article 1 Section 9 Clause 4 states,

“No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.”

A similar stipulation concerning direct taxation is found in Article 1, Section 2, Clause 3. It states,

“Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.”

These are the direct tax clauses in the Constitution:

The second clause is only modified by the Fourteenth Amendment’s elimination of the distinction between “free Persons” and “all other Persons” and the elimination of the category of “Indians not taxed” through legislation.

These constitutional direct tax apportionment provisions are still in effect.

The apportionment rule ties a state’s share of the total direct-tax liability to its share of the nation’s population, measured using census rules.

This means that if a state has 1/10th of the national population, its residents would pay 1/10th of the total direct tax imposed.

For example, during the Civil War a direct tax of $20 million annually was imposed on the land of the United States. Each state’s population was divided into the $20 million to come up with each state’s share of the total.

The following is a partial example of the breakdown.

However what is extremely important concerning the direct tax clauses is their apparent vagueness.

Notice here in Article 1 Section 9 Clause 4 that the term “capitation” is not defined. Also, the phrase mentions “other direct tax”. What exactly are other direct taxes? The Constitution does not identify what they are.

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This again leaves open the possibilities of various definitions. The definition of these terms will become crucial in the Hylton case.

The question then becomes: was the carriage tax an indirect excise tax that was to be applied uniformly throughout the states or was it a direct excise tax that should have been apportioned among the states?

More specifically, according to the Constitution, could an excise tax be directly imposed on individuals?

The importance of this question should not be lost. If the carriage tax was classified as an indirect tax, then the federal government could tax virtually any class of property owned by Americans in any way and at any time.

This is not what the Republicans thought the Constitution allowed.

Lest we think that the controversy concerning the definitions of indirect and direct taxes is something that was only important for 18th century Americans, let’s briefly look at a recent Supreme Court case where the definitions affected all of us.

Obamacare and Hylton

On June 28, 2012 the Supreme Court in the case National Federation of Independent Business v. Sebelius ruled that most parts of the Affordable Care Act, also known as “Obamacare”, were constitutional.

Supreme Court Chief Justice John Roberts surprised many in the legal community when he found that the shared responsibility payment mandate of the act was constitutional based on the taxing power given to the federal government by the United States Constitution.

Justice Roberts wrote in his opinion,

In Roberts’ opinion, the shared responsibility payment, the key provision of the Affordable Care Act, is constitutional because it’s a tax. And, he added, it’s not a direct tax.

However, notice that Roberts stresses the fact that the payment was a tax and not a penalty. Why did he feel the necessity to do that?

Probably because of how Congress worded the law. This is what it states,

(a) Requirement to maintain minimum essential coverage

An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.

26 U.S. Code § 5000A – Requirement to maintain minimum essential coverage

(b) Shared responsibility payment

If a taxpayer who is an applicable individual… fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty with respect to such failures in the amount determined under subsection (c).

26 U.S. Code § 5000A – Requirement to maintain minimum essential coverage

A cursory reading of the provision would make seem that the payment was indeed a penalty.

Nonetheless, Roberts continues,

“…The mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.”

Roberts believed that the shared responsibility payment provision was simply just another way for the government to impose a tax. However, the key here was that this tax is imposed on not buying or not owning something.

In his dissenting opinion, Justice Scalia reacted strongly to Roberts’ opinion.

He wrote,

“We never have classified as a tax an exaction imposed for violation of the law, and so too, …we never have classified as a tax an exaction described in the legislation itself as a penalty.”

Justice Scalia pointed out that Roberts’ opinion was unique as no previous Supreme Court had ever classified a penalty as a tax and found it constitutional. Interestingly, the original congressional legislation never used the words tax to describe the penalty. It was Justice Roberts who actually classified the penalty as a tax.

Scalia also observed that if the Affordable Care Act were rewritten as a tax, it may fall under the Constitution’s definition of a direct tax.

He wrote,

Scalia here noted that if congress had called the act a tax, there could be restrictive constitutional direct tax guidelines imposed that would make the tax almost impossible to collect.

Justice Roberts, however, anticipating Scalia’s direct tax argument, twice appealed to Supreme Court precedent established in Hylton v. United States to show why in his opinion the ACA was not a direct tax.

First Roberts’ writes,

“See Hylton v. United States,  (1796) … The Court was unanimous, and those Justices who wrote opinions either directly asserted or strongly suggested that only two forms of taxation were direct: capitations and land taxes. See… the  (opinion of Paterson, J.) and…the (opinion of Iredell, J.)

By citing Hylton, Roberts shows that the Supreme Court has already established as precedent that the only direct taxes are capitations and land taxes.

Next, he cites the opinion of Justice Samuel Chase from Hylton,

“A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.”

Here Roberts cites an opinion, also called dicta, from Hylton by Supreme Court Chief Justice Samuel Chase on the nature of a capitation tax. Since the Affordable Care Act did not meet Chase’s definition of a capitation, it was not in Roberts’ opinion a capitation tax.

Therefore, since the shared responsibility payment was neither a land tax nor a capitation, it was not in Roberts’ opinion a direct tax.

Roberts, by using Hylton to support his opinion that the ACA was not a direct tax, became one of many Supreme Court justices who had used the case to justify expanded federal taxation.

Conclusion

The Supreme Court’s decision in Hylton raises some important questions. 

Was the Supreme Court correct when they decided that the tax on carriages was an indirect tax and not a direct tax?

Was their opinion on direct taxes consistent with what the Constitution and current economic theory said about them?

If the answer to both questions is no, then the federal government used a flawed decision to justify expanding federal taxation, a decision that would be used even in the 21st century.

Also, several founding fathers and one of the chief architects of the Constitution believed that the tax was unconstitutional.

James Madison at the Congressional debates over the tax believed that without apportionment the tax would ‘break down one of the safeguards of the Constitution’.

This raises another question. 

If the tax was so controversial why did the justices decide that the carriage tax was Constitutional?

Interestingly professor Erik M. Jensen from Case Western Reserve Law School suggests that the decision might have been a purely political one. He writes

“The Court was not made up of independent scholars dispassionately viewing the acts of government. The Justices’ task, as they understood it, was to support the Federalist government, not to keep the legislative and executive branches in check.”

As we have seen, all four justices who heard the Hylton case were sympathetic to the Federalist view of government.

That view included expanding the federal government. This meant that the federal government would require expanding revenue to accomplish its purpose.

Finally, did the justices get it right?

Or, were the Virginians who opposed this tax justified in their belief that a simple tax on carriages would indeed be a threat to individual liberty and to the very nation itself?

In the next video, we’ll answer the above questions by exploring how the justices got it wrong and why the tax on carriages should have been classified as a direct tax and declared unconstitutional.

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