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

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

1st. Fraud.

2nd. The unconscionableness of the bargain.

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

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

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

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

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

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

But let it be supposed that the contract was equal, and conscionable at the time of making it; the one taking a small sum certain, and the other receiving the uncertainty of a large sum; yet has it not become unconscionable by the event? Did any purchaser ever expect to be paid the whole nominal sum, in gold or silver? The ideas of the time must be yet fresh in every man's mind; and we well know that no man was so sanguine as to expect this. It was supposed that something might be done towards paying the interest at a future day, or lands in the western country, might be obtained for them. But whatever the purchaser might think, no seller did imagine that for one-third, or one-half of a dollar, he was transferring twenty or twenty five shillings. It was not in the contemplation of the parties to lose so much on the one side, or gain so much on the other. It is an unexpected event that has put it in the power of the public to do more in making a provision for the payment of the public debt, than could at that time be foreseen. What is more; it is an event brought about by the joint efforts of the original holder and the transferree; I mean a new constitution of government, under which the legislature of the states having the command of all resources, was able to make a better provision for these debts. Is it unreasonable, and unconscionable that the transferree should take all the advantage of this event? Let any man putting a thousand dollars in his pocket from the bank of the United States, look at the war-worn soldier, or the widow and fatherless who has parted with them, and say if his conscience is not touched with a sense of the unreasonable gain. If it is not, it ought to be. At any rate, on the principle of unreasonableness, a contract of such undue advantage, would not be sanctioned by the law.

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

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

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

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

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

But it will occur, that there were in most cases a number of transferrees between the original holder, and the then possessor. The impracticability of making these answerable to the original holder, for their respective proportions of the undue gain, will put them out of the question. The case would then have stood between the original holder and the last transferree. Shall he be answerable to the original holder for all the intermediate gains? No. But let him take no more than the then selling price of the certificates. It became the legislature in the first instance to have ascertained the current value of the public securities, and to have made provision for the redemption of them in the hands of the transferrees, at that value and no more; but in the hands of the original holders, at the full specie value; and let the sum saved from transferrees go to the original holders who had transferred. Was it practicable that these could be ascertained? Let the proof lie on the original holders; and where it could not be made, let the public be the gainers.

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

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

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

As to the Indian treaties, having occasionally in this work, insinuated my ideas, it may seem a repetition to say any thing more on the subject. Indeed the objection may lie in general against the work, that certain subjects, such as the Philosophical Society, Popular Preaching, Indian Treaties, &c. have been too often introduced. To this, I have to answer, that it has been the system I proposed, not to exhaust a subject all at once, but to touch it for the present, and introduce it afterwards in a different point of view, where such things might be added, as would otherwise originally have been brought in; just as, in order to preserve a relish for the same food, we do not dine upon it in continuance, but having had veal to day, take pork tomorrow, and the third day return to veal again.

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

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

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

We did treat, and after some interval, as will always be the case, war, again took place. They have had the advantage. This is not, therefore, the crisis to treat.

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

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

I would deprecate a treaty at present, because it could not be permanent. We are in a fair way, to bring things to a state in which it might be adviseable to treat. Let the event be what it may, I am one of those who not only approve of the present war against the Indians, but also of the principle on which it is carried on, viz. by a body of regular and well disciplined troops. It is suggested by some, that the militia would be adequate. What? Because in the course of the war against the British, when we had not disciplined troops at all times, and in sufficient numbers to oppose to the enemy, the militia of necessity were obliged to act, and sometimes acted well, will it be said that they were preferable to the disciplined troops? we know they were not, though occasionally they discovered bravery, and were obedient to orders. But supposing them equal; what is more, supposing them preferable; are the inhabitants of the western country to be perpetually harrassed with militia duty? To be subject to the necessity of quitting their occupations, and to be occasionally soldiers? Did not the militia during the war with Britain, groan under the necessity of being obliged to act? And shall this grievance exist to the western country, ten years after that war has been terminated; and when it is in the power of the government, knowing the seat of war with the savages, to have regular troops to oppose them; not as in the case of the British, where by means of their fleets, the war was suddenly transferable from place to place, and the militia were obliged to act, in order to assist the parts of our army, until a greater force should arrive.

Militia! That is, let every man do his own fighting. Why not every man his smithing, masoning, weaving, and tayloring, as well? Because it will be better to have persons who will make a business of each particular branch, and stick to it. It does not do to be a Jack of all trades. Well, and why plow a spell, and then fight? But the riflemen of the western country, are the best calculated to fight the Indians. Well: enlist such, and give them rifles, and make an abiding body of them, that the country may have a permanent force to depend upon. But they will not enlist. I engage it, if you pay them well. When militia are called upon they are not those that are drafted that go; they are substitutes. They cost high to those that employ them; and being the refuse of the country, they are good for nothing when they are employed. But let those that are drafted go. Well; draft them from the inland parts of the government, that have not families to defend on the frontiers, and see what will then be said. Volunteers are the thing, making a sudden incursion. If they make a sudden incursion, they will make a sudden recursion, and leave the matter as they found it. A large army cannot find the Indians. They will run away. Well, stay till they come back. Occupy the country; and occupying it, then prepare to treat. Treating at their own towns you will not be imposed upon by raggamuffins passing for chiefs; or tribes treating who are at peace already, and are so situated that they dare not go to war. But the western country is not worth defending at the expence of a standing army. Give it up then; absolve us from our allegiance, and let us make terms with the British who have the command of the Indians. For an army at least equal to the present establishment must be kept up; otherwise all the treaties that can be made, will be of no avail; for a present visible force is the only sanction of engagements, with the savages; more especially in their present situation, impelled, and supported by the traders of Britain. I will not say how far the government takes a part, as there are different opinions on this subject. But it is not the western country only that you are defending. It is the very sea coast settlements. For if we give way, and return to the east of the mountains, will not the enemy come to the east after us? If he finds no horses or blankets, on the one side, will he not pursue his rout to the other? If he misses a scalp short of the Schuylkill, will it not do to take it there? The fact is, that the command of Lake Erie, by posts established upon it, and from thence to the Wabash, are the only means of repressing the Indians; not so much from the actual force of these establishments as from the effect upon the imagination of the enemy; for seeing the boldness of the step, they will count more upon our force than they ought; as at present they count less; and it will refute the British traders, who deny the cession of the country made by that government. But more especially, by encouraging our traders under the protection of our posts, a commerce will be established with the savages, under the nose of the British, and we may equally have the direction of them. Surely any man of the smallest reflection must know, that a treaty and giving goods, is but a transitory act, and can have but a transitory effect; whereas the means that will reduce, and the interests that will conciliate, ought to be permanent to be of any use.