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Amendment V



Document 12

John Jay, A Freeholder, A Hint to the Legislature of the State of New York

Winter 1778Unpublished Papers 1:461--63

Under Governments which have just and equal Liberty for their Foundation, every Subject has a Right to give his Sentiments on all Matters of public Concern; provided it be done with Modesty and Decency. I shall therefore take the Liberty of calling the Attention of my Countrymen to a Subject, which however imporant seems to have passed without due Notice; I mean the Practice of impressing Horses, Teems, and Carriages by the military, without the Intervention of a civil Magistrate, and without any Authority from the Law of the Land.

It is the undoubted Right and unalienable Priviledge of a Freeman not to be divested, or interrupted in the innocent use, of Life, Liberty or Property, but by Laws to which he has assented, either personally or by his Representatives. This is the Corner Stone of every free Constitution, and to defend it from the Iron Hand of the Tyrant of Britain, all America is now in arms; every Man in America being most deeply interested in its Preservation. Violations of this inestimable Right, by the King of Great Britain, or by an American Quarter Master; are of the same Nature, equally partaking of Injustice; and differing only in the Degree and Continuance of the Injury.

That the Army either stationed in, or passing through, this State should be accommodated with Carriages etc. is not to be denied; and that it may often be necessary to impress them is equally true. The only Question is, whether the Army shall at their mere Will and Pleasure furnish themselves, and that at the Point of the Bayonet; or whether they shall be furnished under the civil Authority of the State; and that in a Manner consistant with Reason, Liberty, and the Rights of Freemen.

It is neither my Desire or Design, to dwell on the licencious manner, in which this unconstitutional Power has been exercised in this State, by the little Officers belonging to the Quarter masters Department. Few among us require any Information on that Head. Nor would I be thought to impute it to the Directors of that Department; several of whom deseve Credit for Humanity, Prudence, and Love of Liberty. They cannot be present on every occasion, and are often obliged to employ Persons, who are ignorant of the Circumstances of the Inhabitants, and more sollicitous to shew their Power than Discretion.

It is against the Principle, not the Manner of its Exercise, that I contend. It would equally be an Insult to our Government, which ought to be a Government of Laws, as well as a Violation of the Rights of its Subjects; for the wisest and most discreet Man in the World, with a Party of armed Men at his Heels, without any Law, but that of the necessity of the Case, which cloaks as many Sins in Politics, as Charity is said to do in Religion; arbitrarily and by Force, to take the Property of a free Inhabitant, for the Use of the Army.

Nor does this extraordinary Exertion of Power admit of any other Excuse, than that the Legislature of this State have passed no Laws on the Subject, but have left the Quarter Master and his Agents without any other Rule for their Conduct than what should seem right in their own Eyes. In my Opinion such Laws ought no longer to be delayed. We cannot foresee to what Lengths this dangerous Practice may extend, or where a Line can be drawn. The army may want Blankets, Shoes and many other articles besides Horses and Carriages, and there certainly is as much Propriety in deducing a Right in them to impress the one as the other, from the necessity of the Case. In short, it is difficult to concieve of any arbitrary Act, which that prolific Mother of Tyranny may not breed, and when in Conjunction with Power, has not bred. There is scarce a Page in the History of any Nation, which does not exhibit a black account of some of her Progeny, or which does not represent her as a common Prostitute to all the Tyrants in the World, from Great Tyrants on Thrones, down to Petty Tyrants in Village Schools.

These Impresses may I think easily be so regulated by Laws, as to relieve the Inhabitants from reasonable Cause of Complaint, and yet not, retard or embarrass the Service. It may not be improper to observe that it is no less the Interest of the Quarter Master and their agents than of the People at large that such Laws should take Place. The Time may come when Law and Justice will again pervade the State, and many who now severely feel this kind of oppression, may then bring Actions and recover Damages. This is true Doctrine, however questionable the Policy of declaring it at this Time may be. For my own Part I think it ought to be declared and sounded from one End of the State to the other. Let such oppressive Evils be examined not concealed. Let them be remedied and not permitted silently to fester in the Hearts of Freemen. In an ensuing Paper I shall communicate my Ideas of the Remedy.


The Founders' Constitution
Volume 5, Amendment V, Document 12
http://press-pubs.uchicago.edu/founders/documents/amendV_due_processs12.html
The University of Chicago Press

John Jay: Unpublished Papers. Edited by Richard B. Morris et al. New York: Harper & Row, 1975--. See also: Federalist

Easy to print version.


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