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 say _every part_ of 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 the _basis_, but the _whole frame_ or essence of a republican
constitution; it is not merely _one_, but it is the _only_ legislativ 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 legislation _under
that form of government_; but not to _change that form_." Besides it is
contrary to all our ideas of _deputation_ or _agency 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, by prolonging 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
represent these 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 a _bad_ government.
[24] The septennial act was judged the only guard against a
Popish reign, and therefore highly popular.
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, that _it 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."
[25] Notes on Virginia, page 197. Lond. Edit. Query 13.
But suppose the framers of this ordinance had said, that it should be
_perpetual_ and _unalterable_; 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; and
_every Assembly from that time to this, has done the same_."
[26] Contracts, where a Legislature is a party, are excepted.
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 by _every subsequent Assembly in contradiction to the first
ordinance_, prove that all the Assemblies were _fallible_ men; and
consequently not competent to make _perpetual Constitutions_ for future
generations. To give Mr. Jefferson, and the other advocates for
_unchangeable 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; that _Conventions_ are not possessed of
_infinite 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, the _Convention_ had been empowered to declare the
form of government _unalterable_: 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 had not every Legislature had power
to make these alterations, Virginia must have gone thro the farce, and
the trouble of calling an _extraordinary_ Legislature, to do that which
an _ordinary_ Legislature 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, is _infallible_; and that future Legislatures will be _less
honest_, _less wise_, and _less attentiv to the interest of the State_,
than a present Convention: The first supposition is _always false_, and
the last is _generally_ so. A declaration of perpetuity, annexed to a
form of government, implies a supposition of _perfect wisdom and
probity_ in 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 a _power to defend
both_; a power which before was lodged _no where_; and it is infinitely
better that such a power should be vested in a _single hand_, than that
it should _not 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 a _bill of rights_, a _perpetual constitution_ on 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
from _bills of rights_, _unalterable forms_ and _perpetual
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, possessed
_all_ the 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 contest
_do 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 eager to swallow up
their liberties. But there is _no man_ in America, who claims any rights
but what are common to _every 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 directed _against themselves_, or
against an invasion which they _imagine_ may happen in future ages. The
contest for _perpetual bills of rights_ against a future tyranny,
resembles Don Quixote's fighting windmills; and I never can reflect on
the declamation about an _unalterable constitution_ to 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.
[27] Some jealous people ignorantly call the proposed
Constitution of Federal Government, an _aristocracy_. If such
men are honest, their honesty deserves pity: There is not a
feature of true aristocracy in the Constitution; the whole
frame of Government is a pure Representativ Republic.
Mr. Jefferson, in answer to those who maintain that the form of
government in Virginia is unalterable, because it is called a
_constitution_, which, ex vi termini, means an act above the power of
the ordinary Legislature, asserts that _constitution_, _statute_, _law_
and _ordinance_, 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 words _constitution_, _statute_
and _law_, 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, _bid_ and _set_.[29] From hence he
concludes that no inference can be drawn from the meaning of the word,
that a _constitution_ has a higher authority than a law or statute. This
conclusion of Mr. Jefferson is just.
[28] Calvini Lexicon Juridicum.
[29] See Laws of the Saxon Kings.
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 that _constitution_, _statute_, _law_ and
_ordinance_, 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 an _unalterable 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 that _forty_ members 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 a _majority 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 alienated _in 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 not _destroy_, but merely _suspend_ the
natural right of the _Lex 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 this power, 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, that _theories_ and _forms of government_ are
_empty 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 a _union of interests_
between the rulers and the people, which union will always coexist with
free elections, is not only the _best_, but the _only_ security 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 the habeas 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 the _same interest_. If a law should
prove bad, the Legislature can repeal it; but in the _unalterable_ bills
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]
[30] Such is the article, which excludes the clergy from a
right to hold civil offices. The people, might, with the same
propriety, have declared, that no merchants nor lawyers
should be eligible to civil offices. It is a common opinion
that the business of the clergy is wholly _spiritual_. Never
was a grosser error. A part of their business is to inform
the minds of people on all subjects, and correct their
morals; so that they have a direct influence on government.
At any rate they are subjects of law, and ought as freemen to
be eligible to a seat in the Legislature; provided the people
incline to choose them.
To prove the want of an _unalterable Constitution_ in 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 an _irresistible 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 natural
_unalienable_ right; and is resumeable at the expiration of the period
specified, or the moment it is abused. A State can never alienate a
_natural 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 a _perpetual 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; and _every_ nation in
Europe has a _natural_ right 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.
No. VI.