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 with _all_ the 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, that _rulers are the servants of the people_.
So far as their business is _laborious_ and _embarrassing_, 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,
_servants_ govern their _masters_. 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 a _governor_ of 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 the _servants_ of the people, that
they are just as much _masters_, _rulers_, _governors_, whatever
appellation we give them, as the people would be themselves in a
convention of the whole State.
[18] The first convention of deputies in a state, is usually
designed to direct the mode in which future legislatures
shall be organized. This convention cannot abridge the powers
of future legislatures, any further than they are abridged by
the moral law, which forbids all wrong in general.
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
do _right_, is unquestionable; but such a power they cannot have, unless
they have all the power of the State; which implies an unlimited power
to do _wrong_. 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 Legislature from 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 the _freedom 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]
[19] The _nominal_ distinction of _Convention_ and
_Legislature_ was probably copied from the English; but the
American distinction goes farther, it implies, in common
acceptation, a difference of _power_. This difference does
not exist in G. Britain. The assembly of Lords and Commons
which restored Charles II, and that which raised the Prince
of Orange to the throne, were called _Conventions_, or
_parliamentary Conventions_. But the difference between these
Conventions and an ordinary Parliament, is merely a
difference in the manner of assembling; a _Convention_ being
an assembly or meeting of Lords and Commons, on an emergency,
without the King's writ, which is the regular constitutional
mode of summoning them, and by custom necessary to render the
meeting a _Parliament_. But the powers of this assembly,
whether denominated a _Convention_ or a _Parliament_, have
ever been considered as coextensive and supreme. I would just
remark further, that the impossibility of establishing
perpetual, or even permanent forms of government, is proved
already by the experience of two States in America.
Pensylvania and Georgia, have suffered under bad
Constitutions, till they are glad to go thro the process of
calling a new Convention. After the new forms of government
have been tried some time, the people will discover new
defects, and must either call a third Convention, or let the
governments go on without amendment, because their
Legislatures, which ought to have supreme power, cannot make
altertations.---- [1789.]
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 the
changes 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.
[20] This is the date of the first writs now extant, for
summoning the Knights and Burgesses.
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 an _unalterable
constitution_ has 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 send _one_ or
_two_ deputies to the General Court; and the constant practice has been
to send _two_. 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
the representation? 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 the _whole_ power 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]
[21] In Pensylvania, after the late choice of Delegates to
Congress by the people, one of the Gentlemen sent his
resignation to the President and Council, who refered it to
the Legislature then sitting. This body, compozed of the
servants of the people, I suppoze, solemnly resolved, that
there was no power in the State which could accept the
resignation. The resolv was grounded on the idea that the
power of the people is paramount to that of the Legislature;
whereas the people hav no power at all, except in choosing
representativs. All Legislativ and Executiv powers are vested
in their Representativs, in Councilor Assembly, and the
Council should have accepted the resignation and issued a
precept for another choice. Their compelling the man to serve
was an act of tyranny.
The distinction between the _Legislature_ and a _Convention_ is, 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 a _Convention_ and a _Legislature_ is, 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 that _the 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 for _one particular purpose_ of supremacy; whereas an
ordinary Legislature is competent to _all_ purposes 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 the _Legislature_ is considered as the _body of the
people_; and the people have not been taught to make a distinction which
should never exist, and consider themselves as _masters_ of their
_rulers_, 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 their _servants_. We then may expect
that the _laws_ of those _servants_ will be treated with the same
contempt, as they are in some other States.[22]
[22] This pernicious error subverts the whole foundation of
government. It resembles the practice of some Gentlemen in
the country, who hire a poor strolling vagabond to keep a
school, and then let the children know that he is a mere
_servant_. The consequence is, the children despise him and
his rules, and a constant war is maintained between the
master and his pupils. The boys think themselves more
respectable than the master, and the master has the rod in
his hand, which he never fails to exercise. A proper degree
of respect for the man and his laws, would prevent a thousand
hard knocks. This is _government in miniature_. Men are
taught to believe that their rulers are their _servants_, and
then are rewarded with a prison and a gallows for despising
their laws.
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
in _compact_; but I am very confident, that if this is true, the
_compact_ is different from any other kind of compact that is known
among men. In all other _compacts_, _agreements_ or _covenants_, 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 an _implied compact_ in government, that every
man consents to be bound by the opinion of a majority; but this is all a
_supposition_; for the consent of a hundredth part of a society is never
obtained.
The truth is, government originates in _necessity_ and _utility_; and
whether there is an implied compact or not, the opinions of the _few_
must be overruled, and submit to the opinions of the _many_. But the
opinions of a majority cannot be known, but in an Assembly of the whole
society; and no _part_ of the society has a right to decide upon a
measure which equally affects the _whole_, without a consultation with
the whole, to hear their arguments and objections. It is said that _all_
power resides in the _people_; but it must be remembered, that let the
supreme power be where it will, it can be exercised only in an _Assembly
of the whole State_, or in an _Assembly 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 the _opinions_ of the _whole society_, formed on the _information_
and _debates_ of the _whole society_. These opinions can be formed no
where but in a Convention of the _whole State_, or of their
_Representativs_. 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] Unless therefore, it can be
proved that a _Convention_, so called, which is composed mostly of the
same men as a Legislature, possesses some wisdom, power or
qualifications, which a Legislature _does not_ and _cannot_, 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 the _same 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 a _Convention_ or a
_Legislature_? or why is not the Assembly of Representativs of a people,
at all times a _Convention_, as well as a _Legislature_?
[23] "In a democracy there can be no exercise of sovereignty
but by suffrage: In England, where the people do not debate
in a collective body, but by representation, the exercise of
this sovereignty consists in the _choice of
Representatives_." _Blackstone's Com. b. 1. ch. 2._ This is
the sole power of the people in America.
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 important distinction must be observed between the
_Constitution of a sovereign State_, and of _thirteen 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 the _Representativs_ in 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 prevent the establishment of the government, nor invalidate the
obligation of _every man_ to submit peaceably to its operation. The
members of a state or community, cannot _from 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 like _contracting parties_; 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, that _three fourths
of_ their 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.
No. V.