"The greatness of one party cannot give it a superiority or advantage over the other. The state or its representative, the assembly, has no more power over an act of this kind, after it has passed, than if the state was a private person. It is the glory of a republic to have it so, because it secures the individual from becoming the prey of power, and prevents might from overcoming right. If any difference or dispute arise between the state and the individuals with whom the agreement is made respecting the contract, or the meaning or extent of any of the matters contained in the act, which may affect the property or interest of either, such difference or dispute must be judged of and decided upon by the laws of the land, in a court of justice and trial by jury; that is, by the laws of the land already in being at the time such act and contract was made."
"That this is justice," adds Paine, "that it is the true principle of republican government, no man will be so hardy as to deny." So, indeed, it seemed in those days. In the next year those principles were embodied in the Constitution; and in 1792, when a State pleaded its sovereign right to repudiate a contract ("Chisholm vs. Georgia") the Supreme Court affirmed every contention of Paine's pamphlet, using his ideas and sometimes his very phrases.
Our first Attorney-General (Edmund Randolph, of Virginia) eloquently maintained that the inferiority of one party, or dignity of the other, could not affect the balances of justice. Individuals could not be left the victims of States. So it was decided. Justice Wilson remarked that the term sovereignty is unknown to the Constitution: "The term 'sovereign' has for its correlative, 'subject.'" A State contracting as a merchant cannot, when asked to fulfil its contract, take refuge in its "sovereignty." "The rights of individuals," said Justice Cushing, "and the justice due to them are as dear and precious as those of States. Indeed the latter are founded on the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is government."* But the decline of republicanism set in; the shameful Eleventh Amendment was adopted; Chisholm was defrauded of his victory by a retrospective action of this amendment; and America stands to-day as the only nation professing civilization, which shields repudiation under "State sovereignty."
1 See "Omitted Chapters of History Disclosed in the Life
and Papers of Edmund Randolph," Chap. XVIII., for a full
history of this subject.
In the strength of these principles Paine was able to overwhelm the whole brood of heresies,—State privilege, legal tender, repudiation, retrospective laws. His arguments are too modern to need repetition here; in fineness and force they are like the ribs of his bridge: as to-day commerce travels on Paine's iron span, so on his argumentative arch it passes over freshets endangering honest money.
For a like reason it is unnecessary to give here all the details of his bridge sent by Paine to his correspondents. Of this invention more is said in further chapters, but the subjoined letters are appropriate at this point The first two were written at Bordentown, where Paine settled himself in the spring.
To Franklin, undated.—"I send you the two essays I mentioned. As the standing or not standing of such an arch is not governed by opinions, therefore opinions one way or the other will not alter the fact. The opinions of its standing will not make it stand, the opinions of its falling will not make it fall; but I shall be exceedingly obliged to you to bestow a few thoughts on the subject and to communicate to me any difficulties or doubtfulness that may occur to you, because it will be of use to me to know them. As you have not the model to look at I enclose a sketch of a rib, except that the blocks which separate the bars are not represented."
To Franklin, June 6th.—"The gentleman, Mr. Hall, who presents you with this letter, has the care of two models for a bridge, one of wood, the other of cast iron, which I have the pleasure of submitting to you, as well for the purpose of showing my respect to you, as my patron in this country, as for the sake of having your opinion and judgment thereon.—The European method of bridge architecture, by piers and arches, is not adapted to many of the rivers in America on account of the ice in the winter. The construction of those I have the honor of presenting to you is designed to obviate the difficulty by leaving the whole passage of the river clear of the incumbrance of piers... My first design in the wooden model was for a bridge over the Harlem River, for my good friend General Morris of Morrisania... but I cannot help thinking that it might be carried across the Schuylkill.... Mr. Hall, who has been with me at Borden Town, and has done the chief share of the working part, for we have done the whole ourselves, will inform you of any circumstance relating to it which does not depend on the mathematical construction. Mr. Hall will undertake to see the models brought safe from the stage boat to you; they are too large to be admitted into the house, but will stand very well in the garden. Should there be a vessel going round to New York within about a week after my arrival in Philadelphia I shall take that convenience for sending them there, at which place I hope to be in about a fortnight."
Address and date not given; written in Philadelphia, probably in June.—"Honorable Sir,—I have sent to His Excellency, the President [Franklin] two models for a Bridge, the one of wood the other of cast-iron bars, to be erected over rivers, without piers. As I shall in a few days go to New York, and take them with me, I do myself the honor of presenting an invitation to Council to take a view of them before they are removed. If it is convenient to Council to see and examine their construction to-day, at the usual time of their adjournment, I will attend at the President's at half after twelve o'clock, or any other day or hour Council may please to appoint."'
* This and the two letters preceding are among the Franklin
MSS. in the Philosophical Society, Philadelphia.