[26] LETTER IV.
Another question remains. How are the contributed rights to be managed?
The resolution has been in great measure anticipated, by what has been
said concerning the system proposed. Some few reflections may perhaps
finish it.
If it be considered separately, a _constitution_ is the _organization_
of the contributed rights in society. _Government_ is the _exercise_
of them. It is intended for the benefit of the governed; of course can
have no just powers but what conduce to that end: and the awfulness of
the trust is demonstrated in this—that it is founded on the nature of
man, that is, on the will of his _Maker_, and is therefore sacred. It
is then an offence against Heaven, to violate that trust.(42)
[27] If the organization of a constitution be defective, it may be
amended.
A good constitution promotes, but not always produces a good
administration.
The government must never be lodged in a single body. From such an one,
with an unlucky composition of its parts, rash, partial, illegal, and
when intoxicated with success, even cruel, insolent and contemptible
edits, may at times be expected. By these, if other mischiefs do not
follow, the national dignity may be impaired.
[28] Several inconveniences might attend a division of the government
into two bodies, that probably would be avoided in another arrangement.
The judgment of the most enlightened among mankind, confirmed by
multiplied experiments, points out the propriety of government being
committed to such a number of great departments, as can be introduced
without confusion, distinct in office, and yet connected in operation.
It seems to be agreed, that three or four of these departments are a
competent number.
[29] Such a repartition appears well calculated to express the sense
of the people, and to encrease the safety and repose of the governed,
which with the advancement of their happiness in other respects, are
the objects of government; as thereby there will be more obstructions
interposed; against errors, feuds, and frauds, in the administration,
and the extraordinary interference of the people need be less frequent.
Thus, wars, tumults, and uneasinesses, are avoided. The departments so
constituted, may therefore be said to be balanced.
But, notwithstanding, it must be granted, that a bad administration
may take place.—What is then to be done? The answer is instantly
found—Let the Fasces be lowered before—the supreme sovereignty of
the people. _It is their duty to watch, and their right to take care,
that the constitution be preserved_; or in the Roman phrase on perilous
occasions—_to provide, that the republic receive no damage_.
Political bodies are properly said to be balanced, with respect to
this _primary origination_ and _ultimate destination_, not to any
intrinsic or constitutional properties.(43) It [30] is the _power_ from
which they _proceed,_ and which they _serve_, that _truly and of right
balances_ them.(44)
But, as a good constitution not always produces a good administration,
a defective one not always excludes it. Thus in governments very
different from those of United America, general manners and customs,
improvement in knowledge, and the education and disposition of princes,
not unfrequently soften the features, [31] and qualify the defects.
Jewels of value are substituted, in the place of the rare and genuine
orient of highest price and brightest lustre: and though the sovereigns
cannot even in their ministers, be brought to account by the governed,
yet there are instances of their conduct indicating a veneration for
the rights of the people, and an internal conviction of the guilt that
attends their violation. Some of them appear to be fathers of their
countries. Revered princes! Friends of mankind! May peace be in their
lives—and in their deaths—Hope.
By this superior will of the people, is meant a reasonable, not a
distracted will. When frenzy seizes the mass, it would be equal madness
to think of their happiness, that is, of their freedom. They will
infallibly have a Philip or a Cæsar, to bleed them into soberness of
mind. At present we are cool; and let us attend to our business.
Our government under the proposed confederation, will be guarded by a
repetition of the strongest cautions against excesses. In the senate
the sovereignties of the several states will be equally represented;
in the house of representatives, the people of the whole union will be
equally represented; and, in the president, and the federal independent
judges, so much concerned in the execution of the laws, and in the
determination of their constitutionality, the sovereignties of the
several states and the people of the whole union, may be considered as
conjointly represented.
[32] Where was there ever and where is there now upon the face of the
earth, a government so diversified and attempered? If a work formed
with so much deliberation, so respectful and affectionate an attention
to the interests, feelings, and sentiments of all United America, will
not satisfy, what would satisfy all United America?
It seems highly probable, that those who would reject this labour of
public love, would also have rejected the Heaven-taught institution of
_trial by jury,_ had they been consulted upon its establishment. Would
they not have cried out, that there never was framed so detestable,
so paltry, and so tyrannical a device for extinguishing freedom, and
throwing unbounded domination into the hands of the king and barons,
under a contemptible pretence of preserving it? “What! Can freedom
be preserved by imprisoning its guardians? Can freedom be preserved,
by keeping twelve men closely confined without meat, drink, fire,
or candle, until they unanimously agree, and this to be innumerably
repeated? Can freedom be preserved, by thus delivering up a number of
freemen to a monarch and an aristocracy, fortified by dependant and
obedient judges and officers, to be shut up, until under duress they
speak as they are ordered? Why cannot the twelve jurors separate,(45)
after hearing the evidence, return to their respective homes, and
there take time,(45) and think of the matter at their ease?(45) Is
there not a variety of [33] ways, in which causes have been, and can
be tried, without this _tremendous, unprecedented inquisition_? Why
then is it insisted on; but because the fabricators of it know that it
will, and intend that it shall reduce the people to slavery? Away with
it—Freemen will never be enthralled by so insolent, so execrable, so
pitiful a contrivance.”
Happily for us our ancestors thought otherwise. They were not so
over-nice and curious, as to refuse blessings, because, they might
possibly be abused.
They perceived, that the uses included were great and manifest.
Perhaps they did not foresee, that from this acorn, as it were, of
their planting, would be produced a perpetual vegetation of political
energies, that “would secure the just liberties of the nation for a
long succession of ages,(46) and elevate it to the distinguished rank
it has for several centuries held. As to abuses, they trusted to their
own spirit for preventing or correcting them: And worthy is it of deep
consideration by every friend of freedom, that abuses that seem to be
but trifles,”(47) may be attended by fatal consequences. What can be
“trifling,” that diminishes or detracts from the only defence, that
ever was found against “open attacks and secret machinations?”(48)
This establishment originates from a knowledge of human nature.
With a superior force, wisdom, and benevolence united,[34] it
rives the difficulties concerning administration of justice, that
have distressed, or destroyed the rest of mankind. It reconciles
contradictions—vastness of power, with safety of private station. It
is ever new, and always the same.
Trial by jury and the dependence of taxation upon representation,
those corner stones of liberty, were not obtained by a bill of rights,
or any other records, and have not been and cannot be preserved by
them. They and all other rights must be preserved, by _soundness of
sense and honesty of heart_. Compared with these, what are a bill of
rights, or any characters drawn upon paper or parchment, those frail
remembrances? Do we want to be reminded, that the sun enlightens,
warms, invigorates, and cheers? or how horrid it would be, to have his
blessed beams intercepted, by our being thrust into mines or dungeons?
Liberty is the sun of society. Rights are the beams.(49)
[35] “It is the duty which every man owes to his country, his friends,
his posterity, and himself, to maintain to the utmost of his power this
valuable palladium in all its rights; to restore to its ancient
dignity, if at all impaired by the different value of property, or
otherwise deviated from its first institution; to amend it, wherever
it is defective;(50) and above all to guard with the most jealous
circumspection against the new and arbitrary methods of trial, which,
under a variety of plausible pretences, may in time imperceptibly
undermine this best preservative of liberty.”(51) Trial by Jury is our
birthright; and tempted to his own ruin, by some seducing spirit, must
be the man, who in opposition to the genius of United America, shall
dare to attempt its subversion.
In the proposed confederation, it is preserved inviolable in criminal
cases, and cannot be altered in other respects, but when United America
demands it.
There seems to be a disposition in men to find fault, no difficult
matter, rather than to act as they ought. The works of creation itself
have been objected to: and one learned prince declared, that if he had
been consulted, they would have been improved. With what book has so
much fault been found, as with the Bible? Perhaps, principally, because
it so clearly and strongly enjoins men _to do right_. How many, how
plausible objections have been [36] made against it, with how much
ardor, with how much pains? Yet, the book has done more good than all
the books in the world; would do much more, if duly regarded; and might
lead the objectors against it to happiness, if they would value it as
they should.
When objections are made to a system of high import, should they not
be weighed against the benefits? Are these great, positive, immediate?
Is there a chance of endangering them by rejection or delay? _May
they not be attained without admitting the objections at present_,
supposing the objections to be well founded? If the objections are well
founded, may they not be hereafter admitted, without danger, disgust,
or inconvenience? Is the system so formed, that they may be thus
admitted? May they not be of less efficiency, than they are thought
to be by their authors? are they not designed to hinder evils, which
are generally deemed to be sufficiently provided against? May not the
admission of them prevent benefits, that might otherwise be obtained?
In political affairs, is it not more safe and advantageous, for all
to agree in measures that may not be best, than to quarrel among
themselves, what are best?
When questions of this kind with regard to the plan proposed,
are calmly considered, it seems reasonable to hope, that every
faithful citizen of United America, will make up his mind, with much
satisfaction to himself, and advantage to his country.