NEW YORK, 1788.
PRINCIPLES of GOVERNMENTandCOMMERCE.
All mankind are, by nature, free, and have a right to enjoy life, liberty and property.
One person has no right to take from another his life, health, peace, or good name; to take away or lessen his freedom of thinking and acting, or to injure his estate in the smallest degree.
A collection of individuals forms asociety; and every society must havegovernment, to prevent one man from hurting another, and to punish such as commit crimes. Every person's safety requires that he should submit to be governed; for if one man may do harm without suffering punishment, every man has the same right, and no person can be safe.
It is necessary therefore that there should be laws to control every man. Laws should be made by consent or concurrence of the greatest part of the society.
The whole body of people in society is the sovereign power or state; which is called, the body politic. Every man forms a part of this state, and so has a share in the sovereignty; at the same time, as an individual, he is a subject of the state.
When a society is large, the whole state cannot meet together for the purpose of making laws; the people therefore agree to appoint deputies, or representativs, to act for them. When these agents are chosen and met together, they represent the whole state, and act as the sovereign power. The people resign their own authority to their representativs; the acts of these deputies are in effect the acts of the people; and the people have no right to refuse obedience.
It is as wrong to refuse obedience to the laws made by ourrepresentativs, as it would be to break laws madebyourselves. If a law is bad and produces general harm, the people may appoint new deputies to repeal it; but while it is a law, it is the act and will of the sovereign power, and ought to be obeyed.
The people in free governments, make their own laws by agents or representativs, and appoint the executiv officers. An executiv officer is armed with the authority of the whole state and cannot be resisted. He cannot do wrong, unless he goes beyond the bounds of the laws.
An executiv officer can hardly be too arbitrary; for if the laws are good, they should be strictly executed and religiously obeyed: If they are bad, the people can alter or repeal them; or if the officer goes beyond his powers, he is accountable to those who appoint him. A neglect of good and wholesome laws is the bane of society.
Judges and all executiv officers should be made as much as possible, independent of the will of the people at large. They should be chosen by the representativs of the people and answerable to them only: For if they are elected by the people, they are apt to be swayed by fear and affection; they may dispense with the laws, to favor their friends, or secure their office. Besides, their election is apt to occasion party spirit, cabals, bribery and public disorder. These are great evils in a state, and defeat the purposes of government.
The people have a right to advise their representativs in certain cases, in which they may be well informed. But this right cannot often be exercised with propriety or safety: Nor should their instructions be binding on their representativs: For the people, most of whom live remote from each other, cannot always be acquainted with the general interest of the state; they cannot know all the reasons and arguments which may be offered for, or against a measure, by people in distant parts of the state; they cannot tell at home, how theythemselveswould think and act, in a general assembly ofallthe citizens.
In this situation, if the people of a certain district, bind their representativ to vote in a particular manner,they may bind him to dowrong. They make up their minds, upon a partial view of facts, and form a resolution, which they themselves, on a fair state of all the facts, in the general assembly, might see reasons to change. There have been instances, in which these binding, positiv instructions, have obliged a representativ to give his vote, contrary to the conviction of his own mind and what he thought the good of the state; consequently his vote was a violation of his oath.
But the opinions of the people should, if possible, be collected; for the general sense of a nation is commonly right. When people are well informed, their general opinion is perhaps always right. But they may be uninformed or misinformed and consequently their measures may be repugnant to their own interest. This is often the case, with particular districts of people; and hence the bad policy of giving binding instructions to representativs. The sense of a nation is collected by the opinions of people in particular districts; but as some of these opinions may be wrong, a representativ should be left with discretionary powers to act for the good of the state.
Representativs are chosen by the inhabitants of certain districts, because this is most convenient: But when they act as lawgivers, they act for the whole state. When a man is considering the propriety of a general measure, he is not to be influenced by the interest of a single district or part of a state; but by the collectiv interest of the whole state. A good lawgiver will not ask solely what ismyinterest, or the interest ofmytown or constituents? but, what will promote the interest of the community; 'what will produce the greatest possible good, to the greatest number of people?'
When a legislativ body makeslaws, it acts foritselfonly, and can alter or repeal the laws when they become inconvenient. But when it makesgrantsorcontracts, it act as a party, and cannot take back its grant, or change the nature of its contracts, without the consent of the other party. A state has no more right to neglect or refuse to fulfil its engagements, than an individual.There may be an exception in the case of a grant, for if a state has made a grant, which, contrary to its expectations, clearly endangers the safety of the community, it may resume that grant. The public safety is a consideration superior to all others. But the danger must be great and obvious; it must be generally seen and felt, before the state can be justified in recalling its grant. To take back a gift, or break a contract, for small causes or slight inconveniencies, is a most wanton abuse of power. Bargains, conveyances, and voluntary grants, where two parties are concerned, aresacred things; they are the supports of social confidence and security; they ought not to be sported with, because one party is stronger than the other; they should be religiously observed.
As the state has no right to break its own promises, so it has no right to alter the promises of individuals. When one man has engaged to pay his debt in wheat, and his creditor expects the promise to be fulfiled, the legislature has no right to say, the debt shall be paid in flax or horses. Such an act saps all the supports of good faith between man and man; it is the worst kind of tyranny.
For this reason, alltender laws, which oblige a creditor to take, for his debt, some article which he never intended nor engaged to take, are highlyunjustandtyrannical. The intention of the contracting parties should be strictly regarded; the state may enforce that intention, but can never have a right to interfere and defeat it. A legislature has no right to put a bargain on any footing, but that on which the partieshaveplaced it orare willingto place it.
If a state is poor, and people owe more money than can be procured, a legislature may perhaps go so far as to suspend the collection of debts; or to ordain that a certain part only of the debts shall be recoverable immediately, and the payment of the remainder suspended. This may ease the debtors; but can be justified in extreme cases only, when the people are generally and greatly involved.
A people should not generally be in debt: The consumers of goods should not get credit. Heavy and numerous debts are great evils to a state. If the people will giv and take extensiv credit, the state should check their imprudence, by putting debts out of the protection of law. When it becomes a practice to collect debts by law, it is a proof of corruption and degeneracy among the people. Laws and courts are necessary to settle controverted points between man and man; but a man should pay an acknowledged debt, not because there is a law to oblige him, but because it isjustandhonest, and because he has PROMISED to pay it.
Money, or a medium in trade, is necessary in all great states; buttoo muchis a greater evil thantoo little. When people can get money without labor, they neglect business and become idle, prodigal and vicious; and when they have nothing but money, they are poor indeed. Spain was ruined by its mines of gold and silver in South America. That kingdom possessed all the money in Europe, and yet was thepoorest; it will never be rich and flourishing, till its mines are exhausted. The discovery of rich mines in this country, would be the greatest misfortune, that can befall the United States.
Money is a mere representativ of property; it is thechangewhich facilitates trade. But thewealthof a country is itsproduce; and its strength consists in the number of its industrious inhabitants. A man cannot become rich, unless he earns more than he spends. It is the same with a country. The labouring men are the support of a nation.
The value of money depends on the quantity in circulation. A medium of trade respects all commercial nations; and like water, it will find its level. Money will go where it is wanted, if the people have any thing to purchase it. If one state or country has more money than another, it is a proof that the people are more industrious or saving. It would be happy for the world, if no more money could be made: There is already too much. Silver is become very burdensome, merely because there is too much in the world. If there were butone quarter of the money which now circulates, one quarter of a dollar would buy as much as a dollar will now.
Hence the mistaken policy of those people who attempt to increase the medium of trade by coinage or by a paper currency. They can add to the quantity, as much as they please; but not to the value. If America were shut out from all intercourse with other nations, and ten millions of dollars were circulating in the country, every article of life would have a certain price. If in this case, wheat should be one dollar a bushel, let the money be instantly doubled, the price of wheat would then be two dollars, and the price of every article would rise in the same proportion. So that twenty millions of dollars would be worth no more than ten, because they would buy no more of the useful commodities: America would be no richer in the one case than in the other.
But as there is a communication with other nations, a million of dollars, added to the circulating specie, does not increase the permanent medium in quantity; for just so much money as is added, will leave the country. If there is too much money in a country, the price of labor will rise, and the produce cannot find market abroad without a loss. This was the case with American produce, at the close of the war. If money is scarce in a country, the price of labor will be low, and consequently the produce of that country will be cheap at home, and a great profit will be made on the exportation. This profit will be returned, partly in goods and partly in money, and the country is enriched.
But the great principle, which should constitute the corner stone of government, ispublic justice. The fountain head should be pure, or the streams will be foul indeed. That Legislatures, or bodies politic, should make laws, annex penalties for disobedience, institute courts for deciding controversies and trying offenders, and execute punishments on those that are convicted; yet at the same time neglect to do justice themselves by paying their own debts; this is of all absurdities themost glaring. To compel individuals to perform contracts and yet break their own solemn promises; to punish individuals for neglect, and yet set a general example of delinquency, is to undermine the foundation of social confidence, and shake every principle of commutativ justice.
These are general principles in government and trade, and ought to be deeply impressed upon the minds of every American.
NEW YORK, 1788.
BILLSofRIGHTS.
One of the principal objections to the new Federal Constitution, is, that it contains noBill of Rights. This objection, I presume to assert, is founded on ideas of government that are totally false. Men seem determined to adhere to old prejudices, and reasonwrong, because our ancestors reasonedright. A Bill of Rights against the encroachments of Kings and Barons, or against any power independent of the people, is perfectly intelligible; but a Bill of Rights against the encroachments of an electiv Legislature, that is, against ourownencroachments onourselves, is a curiosity in government.
The English nation, from which we descended, have been gaining their liberties, inch by inch, by forcing concessions from the crown and the Barons, during the course of six centuries.[17]Magna Charta, which is called the palladium of English liberty, was dated in 1215, and the people of England were not represented in Parliament till the year 1265. Magna Charta established the rights of the Barons and clergy against the encroachments of royal perogativ; but the commons or people were hardly noticed in that deed. There was but one clause in their favor, which stipulated, that "no villain or rustic should, by any fine, be bereaved of his carts, plows and instruments of husbandry." As for the rest, they were considered as a part of the property belonging to an estate, and were transferred, as other moveables, at the will of their owners. In the succeeding reign, they were permitted to send Representativsto Parliament; and from that time have been gradually assuming their proper degree of consequence in the British Legislature. In such a nation, every law or statute that defines the powers of the crown, and circumscribes them within determinate limits, must be considered as a barrier to guard popular liberty. Every acquisition of freedom must be established as aright, and solemnly recognized by the supreme power of the nation; lest it should be again resumed by the crown under pretence of ancient prerogativ: For this reason, the habeas corpus act passed in the reign of Charles 2d, the statute of the 2d of William and Mary, and many others which are declaratory of certain privileges, are justly considered as the pillars of English freedom.
These statutes are however not esteemed because they are unalterable; for the same power that enacted them, can at any moment repeal them; but they are esteemed, because they are barriers erected by the Representativs of the nation, against a power that exists independent of their own choice.
But the same reasons for such declaratory constitutions do not exist in America, where the supreme power isthe people in their Representativs. TheBills of Rights, prefixed to several of the constitutions of the United States, if considered as assigning the reasons of our separation from a foreign government, or as solemn declarations of right against the encroachments of a foreign jurisdiction, are perfectly rational, and were doubtless necessary. But if they are considered as barriers against the encroachments of our own Legislatures, or as constitutions unalterable by posterity, I venture to pronounce them nugatory, and to the last degree, absurd.
In our governments, there is no power of legislation, independent of the people; no power that has an interest detached from that of the public; consequently there is no power existing against which it is necessary to guard. While our Legislatures therefore remain electiv, and the rulers have the same interest in the laws, as the subjects have, the rights of the people will be perfectly secure without any declaration in their favor.
But this is not the principal point. I undertake to prove that a standingBill of Rightsisabsurd, because no constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare whattheydeem aprivilege; but they have no right to say what thenextgeneration shall deem a privilege. A state is a supremecorporate bodythat never dies. Its powers, when it acts for itself, are at all times equally extensiv; and it has the same right torepeala law this year, as it had tomakeit the last. If therefore our posterity are bound by our constitutions, and can neither amend nor annul them, they are to all intents and purposes our slaves.
But it will be enquired, have we then no right to say, that trial by jury, the liberty of the press, the habeas corpus writ, and other invaluable privileges, shall never be infringed nor destroyed? By no means. We have the same right to say that lands shall descend in a particular mode to the heirs of the deceased proprietor, and that such a mode shall never be altered by future generations, as we have to pass a law that the trial by jury shall never be abridged. The right of Jury trial, which we deem invaluable, may in future cease to be a privilege; or other modes of trial more satisfactory to the people, may be devised. Such an event is neither impossible nor improbable. Have we then a right to say that our posterity shall not be judges of their own circumstances? The very attempt to makeperpetualconstitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia. Nay we have as little right to say that trial by jury shall be perpetual, as the English, in the reign of Edward the Confessor, had, to bind their posterity forever to decide causes by fiery Ordeal, or single combat. There are perhaps many laws and regulations, which from their consonance to the eternal rules of justice, will always be good and conformable to the sense of a nation. But most institutions in society, by reason of an unceasing change of circumstances, either becomealtogether improper, or require amendment; and every nation has at all times, the right of judging of its circumstances and determining on the propriety of changing its laws.
The English writers talk much of the omnipotence of Parliament; and yet they seem to entertain some scruples about their right to change particular parts of their constitution. I question much whether Parliament would not hesitate to change, on any occasion, an article of Magna Charta. Mr. Pitt, a few years ago, attempted to reform the mode of representation in Parliament. Immediately an uproar was raised against the measure, asunconstitutional. The representation of the kingdom, when first established, was doubtless equal and wise; but by the increase of some cities and boroughs, and the depopulation of others, it has become extremelyunequal. In some boroughs there is scarcely an elector left to enjoy its privileges. If the nation feels no great inconvenience from this change of circumstances, under the old mode of representation, a reform is unnecessary. But if such a change has produced any national evils of magnitude enough to be felt, the present form of electing the Representativs of the nation, howeverconstitutional, and venerable for its antiquity, may at any time be amended, if it should be the sense of Parliament. Theexpediencyof the alteration must always be a matter of opinion; but all scruples as to the right of making it are totally groundless.
Magna Charta may be considered as a contract between two parties, the King and the Barons, and no contract can be altered but by the consent of both parties. But whenever any article of that deed or contract shall become inconvenient or oppressiv, the King, Lords and Commons may either amend or annul it at pleasure.
The same reasoning applies to each of the United States, and to the Federal Republic in general. But an important question will arise from the foregoing remarks, which must be the subject of another paper.
NEW YORK, 1788.
OnGOVERNMENT.
The important question I proposed to discuss in this number, is this: "Whether, in a free State, there ought to be any distinction between the powers of the people, or electors, and the powers of the Representativs in the Legislature." Or in other words, "whether the legislativ body is not, or ought not to be, a standing convention, invested with the whole power of their constituents."
In supporting the affirmativ of this question, I must face the opinions and prejudices of my countrymen; yet if we attend closely to the merits of the question, stripped of all its specious covering, we shall perhaps find more arguments in favor of the opinion, than we at first suspect.
In the first place, a Legislature must be the supreme power, whose decisions are laws binding upon the whole State. Unless the Legislature is the supreme power, and invested withallthe authority of the State, its acts are not laws, obligatory upon the whole State.[18]I am sensible that it is a favorite idea in this country, bandied about from one demagogue to another, thatrulers are the servants of the people. So far as their business islaboriousandembarrassing, it implies a degree of servitude; but in any other view, the opinion is totally false. The people ought at least to place their rulers, who are generally men of the first abilities and integrity, on a level with themselves; for that is an odd kind of government indeed, in which,servantsgovern theirmasters.The truth is, a Representativ, as an individual, is on a footing with other people; as a Representativ of a State, he is invested with a share of the sovereign authority, and is so far agovernorof the people. In short, the collectiv body of the Representativs, is the collectiv sense and authority of the people; and so far are the members from being theservantsof the people, that they are just as muchmasters,rulers,governors, whatever appellation we give them, as the people would be themselves in a convention of the whole State.
But in the second place, the public good or safety requires that the powers of a Legislature should be coextensiv with those of the people. That a Legislature should be competent to pass any law that the public safety and interest may require, is a position that no man will controvert. If therefore it can be proved that the reservation of any power in the hands of the people, may at times interfere with the power of the Legislature to consult the public interest, and prevent its exercise, it must be acknowleged, that such a reservation is not only impolitic, but unjust. That a Legislature should have unlimited power to doright, is unquestionable; but such a power they cannot have, unless they have all the power of the State; which implies an unlimited power to dowrong. For instance, suppose the constitution of any state to declare, that no standing army shall be kept up in time of peace; then the Legislature cannot raise and maintain a single soldier to guard our frontiers, without violating the constitution. To say that new enlistments every year will save the constitution, is idle; for if a body of troops raised for thirty years is a standing army, then a body raised for twenty years, or for six months, is a standing army; and the power to raise troops for a year, is a power to raise them at any time and maintain them forever; but with the addition of much trouble and a load of expense. Since therefore there never was, and probably never will be a time, till the millenium shall arrive, when troops will not be necessary to guard the frontiers of States, a clause in a constitution, restricting a Legislaturefrom maintaining troops in time of peace, will unavoidably disable them from guarding the public interest. That a power to raise and equip troops at pleasure, may be abused, is certain; but that the public safety cannot be established without that power, is equally certain. The liberty of a people does not rest on any reservation of power in their hands paramount to their Legislature; it rests singly on this principle,a union of interests between the governors and governed. While a Legislator himself, his family and his property, are all liable to the consequences of the laws which he makes for the State, the rights of the people are as safe from the invasion of power, as they can be on this side heaven. This union of interest depends partly on the laws of property; but mostly on thefreedom of election. The right of electing rulers is the people's prerogativ; and while this remains unabridged, it is a sufficient barrier to guard all their other rights. This prerogativ should be kept sacred; and if the people ever suffer any abridgment of this privilege, it must be their own folly and an irrecoverable loss.
Still further, I maintain that a people have no right to say, that any civil or political regulation shall be perpetual, because they have no right to make laws for those who are not in existence. This will be admitted; but still the people contend that they have a right to prescribe rules for their Legislature, rules which shall not be changed but by the people in a convention. But what is a convention? Why a body of men chosen by the people in the manner they choose the members of the Legislature, and commonly composed of the same men; but at any rate they are neither wiser nor better. The sense of the people is no better known in a convention, than in the Legislature.[19]
But admit the right of establishing certain rules or principles which an ordinary Legislature cannot change, and what is the consequence? It is this, a change of circumstances must supersede the propriety of such rules, or render alterations necessary to the safety or freedom of the State; yet there is no power existing, but in the people at large, to make the necessary alterations. A convention then must be called to transact a business, which an ordinary Legislature can transact just as well; a convention differing from the Legislature merely in name, and in a few formalities of their proceedings. But when people have enjoyed a tolerable share of happiness under a government, they will not readily step out of the common road of proceeding; and evils insensibly increase to an enormous degree, before the people can be persuaded to a change. The reservation therefore of certain powers may, by an imperceptible change of circumstances, prove highly pernicious to a State. For example: When the Commons of England were first admitted to a share in the legislation of that kingdom, which was probably in the reign of Henry III, in 1265,[20]the representation was tolerably equal. But thechanges in the population of different parts of the kingdom have destroyed all equality. The mode of election therefore should be reformed. But how shall it be done? If there is a constitution in that kingdom, which settles the mode of election, and that constitution is an act of the people, paramount to the power of the Parliament, and unchangeable by them, a convention of the people must be called to make an alteration which would be as well made in Parliament. This would occasion infinite trouble and expense.
But the danger is, that as an evil of this kind increases, so will the lethargy of the people, and their habits of vice and negligence. Thus the disease acquires force, for want of an early remedy, and a dissolution ensues. But a Legislature, which is always watching the public safety, will more early discover the approaches of disorders, and more speedily apply a remedy. This is not precisely the case with the British constitution; for it was not committed at once to parchment and ratified by the people. It consists rather of practice, or common law, with some statutes of Parliament. But the English have been too jealous of changing their practice, even for the better. All the writers on the English constitution agree, that any Parliament can change or amend every part of it; yet in practice, the idea of anunalterable constitutionhas had too much influence in preventing a reform in their representation.
But we have an example nearer home directly in point. The charter of Connecticut declares that each town shall have liberty to sendoneortwodeputies to the General Court; and the constant practice has been to sendtwo. While the towns were few, the number of Representativs was not inconvenient; but since the complete settlement of the State, and the multiplication of the towns, the number has swelled the Legislature to an unwieldly and expensive size. The house of Representativs consists of about 170 members: An attempt has been made, at several sessions, to lessen the representation, by limiting each town to one Deputy. A question arises, have the Assembly a right to lessen therepresentation? In most States, it would be decided in the negativ. Yet in that State it is no question at all; for there is a standing law expressly delegating thewholepower of all the freemen to the Legislature. But I bring this instance to prove the possibility of changes in any system of government, which will require material alterations in its fundamental principles; and the Legislature should always be competent to make the necessary amendments, or they have not an unlimited power to do right.[21]
The distinction between theLegislatureand aConventionis, for the first time, introduced into Connecticut, by the recommendation of the late convention of States, in order to adopt the new constitution. The Legislature of the State, without adverting to laws or practice, immediately recommended a convention for that purpose. Yet a distinction between aConventionand aLegislatureis, in that State, a palpable absurdity, even by their own laws; for there is no constitution in the State, except its laws, which are always repealable by an ordinary Legislature; and the laws and uniform practice, from the first organization of the government, declare thatthe Legislature has all the power of all the people. A convention therefore can have no more power, and differs no more from an ordinary Legislature, than one Legislature does from another. Or rather it is no more than a Legislature chosen forone particular purposeof supremacy; whereas an ordinary Legislature is competent toallpurposes of supremacy.But had the Legislature of that State ratified or rejected the new constitution, without consulting their constituents, their act would have been valid and binding. This is the excellence of the constitution of Connecticut, that theLegislatureis considered as thebody of the people; and the people have not been taught to make a distinction which should never exist, and consider themselves asmastersof theirrulers, and their power as paramount to the laws. To this excellence in her frame of government, that State is indebted for uniformity and stability in public measures, during a period of one hundred and fifty years; a period of unparalleled tranquillity, never once disturbed by a violent obstruction of justice, or any popular commotion or rebellion. Wretched indeed would be the people of that State, should they adopt the vulgar maxim, that their rulers are theirservants. We then may expect that thelawsof thoseservantswill be treated with the same contempt, as they are in some other States.[22]
But from the manner in which government is constituted, it is evident that there is no power residing in the State at large, which does not reside in the legislature. I know it is said that government originates incompact; but I am very confident, that if this is true, thecompactis different from any other kind of compact that is known among men. In all othercompacts,agreementsorcovenants, the assent of every person concerned, or who is to be bound by the compact, is requisite to render it valid and obligatory upon such person.But I very much question whether this ever takes place in any constitution of government.
Perhaps so far there is animplied compactin government, that every man consents to be bound by the opinion of a majority; but this is all asupposition; for the consent of a hundredth part of a society is never obtained.
The truth is, government originates innecessityandutility; and whether there is an implied compact or not, the opinions of thefewmust be overruled, and submit to the opinions of themany. But the opinions of a majority cannot be known, but in an Assembly of the whole society; and nopartof the society has a right to decide upon a measure which equally affects thewhole, without a consultation with the whole, to hear their arguments and objections. It is said thatallpower resides in thepeople; but it must be remembered, that let the supreme power be where it will, it can be exercised only in anAssembly of the whole State, or in anAssembly of the Representativs of the whole State.
Suppose the power to reside in the people, yet they cannot, and they have no right to exercise it in their scattered districts, and the reason is very obvious; it is impossible that the propriety of a measure can be ascertained, without the best general information, and a full knowlege of the opinions of the men on whom it is to operate.
By opinions here I would not be understood to mean, the various opinions formed on a view of a particular interest, for these opinions may be obtained by sending to each district, and collecting instructions; but I mean theopinionsof thewhole society, formed on theinformationanddebatesof thewhole society. These opinions can be formed no where but in a Convention of thewhole State, or of theirRepresentativs. So far therefore are the people from having a power paramount to that of their Representativs in Convention, that they can exercise no act of supremacy or legislation at all, but in a Convention of the whole State by Representativs.[23]Unlesstherefore, it can be proved that aConvention, so called, which is composed mostly of the same men as a Legislature, possesses some wisdom, power or qualifications, which a Legislaturedoes notandcannot, then the distinction is useless and trifling. A Legislature is supposed to consist of men whom the people judge best qualified to superintend their interests; a convention cannot be composed of better men; and in fact we find it generally composed of thesame men. If therefore no act of sovereignty can be exercised but in an Assembly of Representativs, of what consequence is it, whether we call it aConventionor aLegislature? or why is not the Assembly of Representativs of a people, at all times aConvention, as well as aLegislature?
To me it appears that a distinction is made without a difference; but a distinction that will often prevent good measures, perpetuate evils in government, and by creating a pretended power paramount to the Legislature, tend to bring laws into contempt.
POSTSCRIPT.—— This reasoning applies solely to the individual States, and not to the United States, before they were formed into a federal body. An importantdistinctionmust be observed between theConstitution of a sovereign State, and ofthirteen distinct sovereignties. In a sovereign State, whatever they may suggest to the contrary, the voices of a majority are binding upon the minority, even in framing the first plan of government. In general, a majority of the votes of theRepresentativsin Legislature or Convention have been admitted as obligatory upon every member of the State, in forming and establishing a Constitution: But when the Constitution has been submitted to the people, as it is called, in town meetings or other small assemblies, the assent of every individual could not be expressly obtained; and the dissent of any number, less than half the freemen present, who might not be one half the whole number in the State, could not preventthe establishment of the government, nor invalidate the obligation ofevery manto submit peaceably to its operation. The members of a state or community, cannotfrom necessity, be considered as parties to a contract, where the assent of every man is necessary to bind him to a performance of the engagement. But the several States, enter into a negociation likecontractingparties; they agree that the assent of every individual State, shall be requisite to bind that State; and the frame of government, so agreed upon, is considered as a compact between independent sovereignties, which derives its binding force from the mutual and unanimous consent of the parties, and not merely from a necessity that the major part of the people should compel the rest to submission.
But in this very compact, the States have resigned their independent sovereignty, and become a single body or state, as to certain purposes; for they have solemnly contracted with each other, thatthree fourths oftheir number may alter and amend the first compact. They are therefore no longer separate individuals and contracting parties; but they form a single State or body politic; and a majority of three fourths can exert every act of sovereignty, except in two or three particulars, expressly reserved in the compact.
NEW YORK, 1788.
OnGOVERNMENT.
The constitution of Virginia, like that of Connecticut, stands on the true principles of a Republican Representativ Government. It is not shackled with a Bill of Rights, and every part of it, is at any time, alterable by an ordinary Legislature. When I sayevery partof the constitution is alterable, I would except the right of elections, for the Representativs have not power to prolong the period of their own delegation. This is not numbered among the rights of legislation, and deserves a separate consideration. This right is not vested in the Legislature; it is in the people at large; it cannot be alienated without changing the form of government. Nay the right of election is not only thebasis, but thewhole frameor essence of a republican constitution; it is not merelyone, but it is theonlylegislativ or constitutional act, which the people at large can with propriety exercise.
The simple principle for which I contend is this, "That in a representativ democracy, the delegates chosen for Legislators ought, at all times, to be competent to every possible act of legislationunder that form of government; but not tochange that form." Besides it is contrary to all our ideas ofdeputationoragency for others, that the person acting should have the power of extending the period of agency beyond the time specified in his commission. The Representativ of a people is, as to his powers, in the situation of an Attorney, whose letters commission him to do every thing which his constituent would do, where he on the spot; but for a limited time only. At the expiration of that time his powers cease; and a Representativ has no more right to extend that period, than a plenipotentiary has to renew his commission. The British Parliament, byprolonging the period of their existence from one to three, and from three to seven years, committed an unjust act; an act however which has been confirmed by the acquiescence of the nation, and thus received the highest constitutional sanction. I am sensible that the Americans are much concerned for the liberties of the British nation; and the act for making Parliaments septennial is often mentioned as an arbitrary, oppressiv act, destructiv of English liberty.[24]The English are doubtless obliged to us for our tender concern for their happiness; yet for myself I entertain no such ideas: The English have generally understood and advocated their rights as well as any nation, and I am confident that the nation enjoys as much happiness and freedom, and much more tranquillity, under septennial Parliaments, than they would with annual elections. Corruption to obtain offices will ever attend wealth; it is generated with it, grows up with it, and will always fill a country with violent factions and illegal practices. Such are the habits of the people, that money will have a principal influence in carrying elections; and such vast sums are necessary for the purpose, that if elections were annual, none but a few of the wealthiest men could defray the expense; the landholders of moderate estates would not offer themselves as candidates; and thus in fact annual elections, with the present habits of the people, would actually diminish the influence of the Commons, by throwing the advantage into the hands of a corrupt ministry, and a few overgrown nabobs. Before annual elections would be a blessing to the English, their habits must be changed; but this cannot be effected by human force. I wish my countrymen would believe that other nations understand and can guard their privileges, without any lamentable outcries from this side of the Atlantic. Government will always take its complexion from the habits of the people; habits are continually changing from age to age; a body of Legislators taken from the people, will generally representthese habits at the time when they are chosen: Hence these two important conclusions, 1st, That a legislativ body should be frequently renewed and always taken from the people: 2d, That a government which is perpetual, or incapable of being accommodated to every change of national habits, must in time become abadgovernment.
With this view of the subject, I cannot suppress my surprise at the reasoning of Mr. Jefferson on this very point.[25]He considers it as a defect in the constitution of Virginia, thatit can be altered by an ordinary Legislature. He observes that the Convention which framed the present constitution of that State, "received no powers in their creation which were not given to every Legislature before and since. So far and no farther authorised, they organized the government by the ordinance entitled a Constitution or form of government. It pretends to no higher authority than the other ordinances of the same session; it does not say, that it shall be perpetual; that it shall be unalterable by other Legislatures; that it shall be transcendant above the powers of those, who they knew would have equal powers with themselves."
But suppose the framers of this ordinance had said, that it should beperpetualandunalterable; such a declaration would have been void. Nay, altho the people themselves had individually and unanimously declared the ordinance perpetual, the declaration would have been invalid. One Assembly cannot pass an act, binding upon a subsequent Assembly of equal authority;[26]and the people in 1776, had no authority, and consequently could delegate none, to pass a single act which the people in 1777, could not repeal and annul. And Mr. Jefferson himself, in the very next sentence, assigns a reason, which is an unanswerable argument in favor of my position, and a complete refutation of his own. These are his words. "Not only the silence of the instrument is a proof they thought it would be alterable,but their own practice also: For this very Convention, meeting as a House of Delegates in General Assembly with the new Senate in the autumn of that year, passed acts of Assembly in contradiction to their ordinance of government; andevery Assembly from that time to this, has done the same."
Did Mr. Jefferson reflect upon the inference that would be justly drawn from these facts? Did he not consider that he was furnishing his opponents with the most effectual weapons against himself? The acts passed byevery subsequent Assembly in contradiction to the first ordinance, prove that all the Assemblies werefalliblemen; and consequently not competent to makeperpetual Constitutionsfor future generations. To give Mr. Jefferson, and the other advocates forunchangeable Constitutions, the fullest latitude in their argument, I will suppose every freeman of Virginia, could have been assembled to deliberate upon a form of government, and that the present form, or even one more perfect, had been the result of their Councils; and that they had declared it unalterable. What would have been the consequence? Experience would probably have discovered, what is the fact; and what forever will be the case; thatConventionsare not possessed ofinfinite wisdom; that the wisest men cannot devise a perfect system of government. After all this solemn national transaction, and a formal declaration that their proceedings should be unalterable, suppose a single article of the Constitution should be found to interfere with some national benefit, some material advantage; where would be the power to change or reform that article? In the same general Assembly of all the people, and in no other body. But must a State be put to this inconvenience, to find a remedy for every defect of constitution?
Suppose, however, theConventionhad been empowered to declare the form of governmentunalterable: What would have been the consequence? Mr. Jefferson himself has related the consequence. Every succeeding Assembly has found errors or defects in that frame of government, and has happily applied a remedy. But hadnot every Legislature had power to make these alterations, Virginia must have gone thro the farce, and the trouble of calling anextraordinaryLegislature, to do that which anordinaryLegislature could do just as well, in their annual session; or those errors must have remained in the constitution, to the injury of the State.
The whole argument for Bills of Rights and unalterable Constitutions rests on two suppositions, viz. that the Convention which frames the government, isinfallible; and that future Legislatures will beless honest,less wise, andless attentiv to the interest of the State, than a present Convention: The first supposition isalways false, and the last isgenerallyso. A declaration of perpetuity, annexed to a form of government, implies a supposition ofperfect wisdom and probityin the framers; which is both arrogant and impudent; and it implies a supposed power in them, to abridge the power of a succeeding Convention, and of the future state or body of people. The last supposition is, in every possible instance of legislation,false; and an attempt to exercise such a power, a high handed act of tyranny. But setting aside the argument, grounded on a want of power in one Assembly to abridge the power of another, what occasion have we to be so jealous of future Legislatures? Why should we be so anxious to guard the future rights of a nation? Why should we not distrust the people and the Representativs of the present age, as well as those of future ages, in whose acts we have not the smallest interest? For my part, I believe that the peeple and their Representativs, two or three centuries hence, will be as honest, as wise, as faithful to themselves, and will understand their rights as well, and be as able to defend them, as the people are at this period. The contrary supposition is absurd.
I know it is said, that other nations have lost their liberties by the ambitious designs of their rulers, and we may do the same. The experience of other nations, furnishes the ground of all the arguments used in favor of an unalterable constitution. The advocates seem determined that posterity shall not lose their liberty,even if they should be willing and desirous to surrender it. If a few declarations on parchment, will secure a single blessing to posterity, which they would otherwise lose, I resign the argument, and will receive a thousand declarations. Yet so thoroughly convinced am I of the opposite tendency and effect of such unalterable declarations, that, were it possible to render them valid, I should deem every article an infringement of civil and political liberty. I should consider every article as a restriction which might impose some duty which in time might cease to be useful and necessary, while the obligation of performing it might remain; or which in its operation might prove pernicious, by producing effects which were not expected, and could not be foreseen. There is no one single right, no privilege, which is commonly deemed fundamental, which may not, by an unalterable establishment, preclude some amendment, some improvement in future administration of government. And unless the advocates for unalterable constitutions of government, can prevent all changes in the wants, the inclinations, the habits, and the circumstances of people, they will find it difficult, even with all their declarations of unalterable rights, to prevent changes in government. A paper declaration is a very feeble barrier against the force of national habits, and inclinations.
The loss of liberty, as it is called, in the kingdoms of Europe, has, in several instances, been a mere change of government, effected by a change of habits, and in some instances this change has been favorable to liberty. The government of Denmark, was changed from a mixed form, like that of England, to an absolute monarchy, by a solemn deliberate act of the people or States. Was this a loss of liberty? So far from it, that the change removed the oppressions of faction, restored liberty to the subject and tranquillity to the kingdom. The change was a blessing to the people. It indeed lodged a power in the Prince to dispose of life and property; but at the same time it lodged in him apower to defend both; a power which before was lodgedno where; andit is infinitely better that such a power should be vested in asingle hand, than that it shouldnot exist at all. The monarchy of France has grown out of a number of petty states and lordships; yet it is a fact, proved by history and experience, that the subjects of that kingdom have acquired liberty, peace and happiness, in proportion to the diminution of the powers of the petty sovereignties, and the extension of the prerogativs of the Monarch. It is said that Spain lost her liberties under the reign of Charles Vth; but I question the truth of the assertion; it is probable that the subject has gained as much by an abridgement of the powers of the nobility, as he lost by an annihilation of the Cortez. The United Netherlands fought with more bravery and perseverance to preserve their rights, than any other people since the days of Leonidas; and yet no sooner established a government, so jealously guarded as to defeat its own designs, and prevent the good effects of government, than they neglected its principles; the freemen resigned the privilege of election, and committed their liberties to a rich aristocracy. There was no compulsion, no external force in producing this revolution; but the form of government, which had been established on paper, and solemnly ratified, was not suited to the genius of the subjects. The burghers had the right of electing their rulers; but they neglected it voluntarily; and abill of rights, aperpetual constitutionon parchment, guaranteeing that right, was a useless form of words, because opposed to the temper of the people. The government assumed a complexion, more correspondent to their habits, and tho in theory no constitution is more cautiously guarded against an infringement of popular privileges, yet in practice it is a real aristocracy.
The progress of government in England has been the reverse: The people have been gaining freedom by intrenching upon the powers of the nobles and the royal prerogativs. These changes in government do not proceed frombills of rights,unalterable formsandperpetual establishments; liberty is never secured by such paper declarations, nor lost for want of them. The truth is,Government originates in necessity, and takes its form and structure from the genius and habits of the people; and if on paper a form is not accommodated to those habits, it will assume a new form, in spite of all the formal sanctions of the supreme authority of a State. Were the monarchy of France to be dissolved, and the wisest system of republican government ever invented, solemnly declared, by the King and his council, to be the constitution of the kingdom; the people with their present habits, would refuse to receive it; and resign their privileges to their beloved sovereign. But so opposite are the habits of the Americans, that an attempt to erect a monarchy or an aristocracy over the United States, would expose the authors to the loss of their heads.[27]The truth is, the people of Europe, since they have become civilized, have, in no kingdom, possessedallthe true principles of liberty. They could not therefore lose what they never possessed. There have been, from time immemorial, some rights of government, some prerogativs vested in some man or body of men, independent of the suffrages of the body of the subjects. This circumstance distinguishes the governments of Europe and of all the world, from those of America. There has been in the free nations of Europe an incessant struggle between freedom or national rights, and hereditary prerogativs. The contest has ended variously in different kingdoms; but generally in depressing the power of the nobility; ascertaining and limiting the prerogativs of the crown, and extending the privileges of the people. The Americans have seen the records of their struggles; and without considering that the objects of the contestdo not exist in this country; they are laboring to guard rights which there is no party to attack. They are as jealous of their rights, as if there existed here a King's prerogativs, or the powers of nobles, independent of their own will and choice, and ever eagerto swallow up their liberties. But there isno manin America, who claims any rights but what are common toevery man; there is no man who has an interest in invading popular privileges, because his attempt to curtail another's rights, would expose his own to the same abridgement. The jealousy of people in this country has no proper object against which it can rationally arm them; it is therefore directedagainst themselves, or against an invasion which theyimaginemay happen in future ages. The contest forperpetual bills of rightsagainst a future tyranny, resembles Don Quixote's fighting windmills; and I never can reflect on the declamation about anunalterable constitutionto guard certain rights, without wishing to add another article, as necessary as those that are generally mentioned, viz. "that no future Convention or Legislature shall cut their own throats, or those of their constituents." While the habits of the Americans remain as they are, the people will choose their Legislature from their own body; that Legislature will have an interest inseparable from that of the people, and therefore an act to restrain their power in any article of legislation, is as unnecessary as an act to prevent them from committing suicide.
Mr. Jefferson, in answer to those who maintain that the form of government in Virginia is unalterable, because it is called aconstitution, which, ex vi termini, means an act above the power of the ordinary Legislature, asserts thatconstitution,statute,lawandordinance, are synonymous terms, and convertible as they are used by writers on government. Constitutio dicitur jus quod a principe conditur. Constitutum, quod ab imperatoribus rescriptum statutumve est. Statutum, idem quod lex.[28]Here the wordsconstitution,statuteandlaw, are defined by each other; they were used as convertible terms by all former writers, whether Roman or British; and before the terms of the civil law were introduced, our Saxon ancestors used the correspondent English words,bidandset.[29]From hence he concludesthat no inference can be drawn from the meaning of the word, that aconstitutionhas a higher authority than a law or statute. This conclusion of Mr. Jefferson is just.
He quotes Lord Coke also to prove that any parliament can abridge, suspend or qualify the acts of a preceding Parliament. It is a maxim in their laws, that "Leges posteriores priores contrarias abrogant." After having fully proved thatconstitution,statute,lawandordinance, are words of similar import, and that the constitution of Virginia is at any time alterable by the ordinary Legislature, he proceeds to prove the danger to which the rights of the people are exposed, for want of anunalterable form of government. The first proof of this danger he mentions, is, the power which the Assembly exercises of determining its own quorum. The British Parliament fixes its own quorum: The former Assemblies of Virginia did the same. During the war the Legislature determined thatfortymembers should be a quorum to proceed to business, altho not a fourth part of the whole house. The danger of delay, it was judged, would warrant the measure. This precedent, our writer supposes, is subversive of the principles of the government, and dangerous to liberty.
It is a dictate of natural law that amajority should govern; and the principle is universally received and established in all societies, where no other mode has been arbitrarily fixed. This natural right cannot be alienatedin perpetuum; for altho a Legislature, or even the body of the people, may resign the powers of government to forty, or to four men, when they please, yet they may likewise resume them at pleasure.
The people may, if they please, create a dictator on an emergency in war, but his creation would notdestroy, but merelysuspendthe natural right of theLex majoris partis. Thus forty members, a minority of the Legislature of Virginia, were empowered during a dangerous invasion, to legislate for the State; but any subsequent Assembly might have divested them of that power. During the operation of the law, vesting them with thispower, their acts were binding upon the State; because their power was derived from the general sense of the State; it was actually derived from a legal majority. But that majority could, at any moment, resume the power and practice on their natural right.
It is a standing law of Connecticut, that forty men shall be a quorum of the House of Representativs, which consists of about 170 members. This law, I am confident, never excited a murmur, or a suspicion that the liberties of the people were in danger; yet this law creates an oligarchy; it is an infringement of natural right; it subjects the State to the possibility, and even the probability of being governed at times by a minority. The acquiescence of the State, in the existence of the law, gives validity, and even the sanction of a majority, to the acts of that minority; but the majority may at any time resume their natural right, and make the assent of more than half of the members, necessary to give validity to their determinations.
The danger therefore arising from a power in the Assembly to determine their own quorum, is merely ideal, for no law can be perpetual; the authority of a majority of the people, or of their Representativs, is always competent to repeal any act that is found unjust or inconvenient. The acquiescence however of the people of the States mentioned, and that in one of them for a long course of years, under an oligarchy; or their submission to the power of a minority, is an incontestible proof of what I have before observed, thattheoriesandforms of governmentareempty things; that the spirit of a government springs immediately from the temper of the people, and the exercise of it will generally take its tone from their feelings. It proves likewise that aunion of interestsbetween the rulers and the people, which union will always coexist with free elections, is not only thebest, but theonlysecurity for their liberties which they can wish for and demand. The Government of Connecticut is a solid proof of these truths. The Assembly of that State, have always had power to abolish trial by jury, to restrain the liberty of the press, to suspend thehabeas corpus act, to maintain a standing army, in short to command every engine of despotism; yet by some means or other, it happens that the rights of the people are not invaded, and the subjects have generally been better satisfied with the laws, than the people of any other State. The reason is, the Legislature is a part of the people, and has thesame interest. If a law should prove bad, the Legislature can repeal it; but in theunalterablebills of rights in some of the States, if an article should prove wrong and oppressiv, an ordinary Legislature cannot repeal or amend it; and the State will hardly think of calling a special Convention for so trifling a purpose. There are some articles, in several of the State Constitutions, which are glaring infractions of the first rights of freemen; yet they affect not a majority of the community; and centuries may elapse before the evil can be redressed, and a respectable class of men restored to the enjoyment of their rights.[30]
To prove the want of anunalterable Constitutionin Virginia, Mr. Jefferson informs us that in 1776, during the distressed circumstances of the State, a proposition was made in the House of Delegates to create a Dictator, invested with every power, legislativ, executiv and judicial, civil and military. In June, 1781, under a great calamity, the proposition was repeated, and was near being passed. By the warmth he discovers in reprobating this proposal, one must suppose that the creation of a Dictator even for a few months, would have buried every remain of freedom. Yet he seems to allow that the step would have been justified, had there existed anirresistible necessity.
Altho it is possible that a case may happen, in which the creation of a Dictator might be the only resort to save life, liberty, property and the State, as it happened in Rome more than once; yet I should dread his power as much as any man, were I not convinced that the same men that appointed him, could, in a moment, strip him of his tremendous authority. A Dictator, with an army superior to the strength of the State, would be a despot; but Mr. Jefferson's fears seem grounded on the authority derived from the Legislature. A concession of power from the Legislature, or the people, is a voluntary suspension of a naturalunalienableright; and is resumeable at the expiration of the period specified, or the moment it is abused. A State can never alienate anatural right; for it cannot legislate for those who are not in existence. It may consent to suspend that right for great and temporary purposes; but were every freeman in Virginia to assent to the creation of aperpetual Dictator, the act in itself would be void. The expedient of creating a Dictator is dangerous, and no free people would willingly resort to it; but there may be times when this expedient is necessary to save a State from ruin, and when every man in a State would cheerfully give his suffrage for adopting it. At the same time, a temporary investiture of unlimited powers in one man, may be abused; it may be an influential precedent; and the continuance of it, may furnish the Dictator with the means of perpetuating his office. The distress of a people must be extreme, before a serious thought of a Dictator can be justifiable. But the people who create, can annihilate a Dictator; their right to govern themselves cannot be resigned by any act whatever, altho extreme cases may vindicate them in suspending the exercise of it. Even prescription cannot exist against this right; andeverynation in Europe has anaturalright to depose its King, and take the government into its own hands; altho it may forever be inexpedient for any of them to exercise the right.