I have said,[31] "that the people ought not to give binding instructions
to Representativs." "That they cannot exercise any act of supremacy or
legislation at all but in a Convention of the whole State, or of the
Representativs of the whole State." And "That the right of election is
the _only_ constitutional right which they can with propriety exercise."
That these positions, however repugnant to the received opinions of the
present age, are capable of political demonstration, is to me
unquestionable. They all convey nearly the same idea, and if true, they
contravene, in some measure, a fundamental maxim of American politics,
which is, that "the sovereign power resides in the people."
[31] No. II. IV. V.
I am not desirous of subverting this favorite maxim; but I am very
desirous it should be properly qualified and understood; for the abuse
of it is capable of shaking any government; and I have no doubt that the
mistakes which this maxim has introduced, have been the principal
sources of rebellion, tumult and disorder in several of the American
States.
It is doubtless true, that the individuals who compose a political
society or State, have a sovereign right to establish what form of
government they please in their own territories. But in order to
deliberate upon the subject, they must all convene together, as in Rome
and Athens; or must send deputies, vested with powers to act for them,
as is the practice in England and America. If they adopt the first
method, then the Supreme Legislativ power resides, to all intents and
purposes, in the whole body of the people. If, from the local
circumstances of the people, the whole body cannot meet for
deliberation, then the Legislativ powers do not reside in the people at
large, but in an assembly of men delegated by the whole body.
To prove this last position, it is necessary to enquire, what is the
object of law, and on what principles ought it to be founded? A law, if
I understand the term, is an act of the _whole State_, operating upon
the _whole State_, either by command or prohibition: It is thus
distinguished from a _resolve_ which more properly respects an
individual or a part of the State.[32] The object of a law is to prevent
positiv evil or produce positiv good to the _whole State_; not merely to
a particular part. The principle therefore on which all laws should be
founded, is, _a regard to the greatest good which can be produced to the
greatest number of individuals in the State_. The principle is so
obvious, that I presume it will not be controverted. Permit me then to
enquire, whether the people of any district, county or town, in their
local meetings, are competent to judge of this _general good_? A law,
which is, in its operation _general_, must be founded on the best
_general information_: The people themselves have no right to consent to
a law, without this general information: They have no right to consent
to a law, on a view of a local interest; nor without hearing the
objections and arguments, and examining the amendments, suggested by
every part of the community, which is to be affected by that law. To
maintain the contrary is to defend the most glaring contradictions. But
can the inhabitants, in detached associations, be acquainted with these
objections and arguments? Can they know the minds of their brethren at
the distance of three or five hundred miles? If they cannot, they do not
possess the right of legislation. Little will it avail to say, that the
people acquire the necessary information by newspapers, or other
periodical publications: There are not more than two States in the
thirteen, where one half the freemen read the public papers. But if
every freeman read the papers, this would not give him the information
necessary to qualify him for a Legislator; for but a small part of the
intelligence they contain is official, which alone can be the ground of
law; nor can the collectiv sense of a nation or state be gathered from
newspapers. The whole body of people, or Representativs of the whole
body, are the only vehicles of information which can be trusted, in
forming a judgement of the true interest of the whole State.
[32] It is a capital defect in some of the States, that the
government is so organized as not to admit subordinate acts
of legislation in small districts. In these States, every
little collection of people in a village must petition the
Legislature for liberty to lay out a highway or build a
bridge; an affair in which the State at large has very little
interest, and of the necessity and utility of which the
Legislature are not suitable judges. This occasions much
trouble for the State; it is a needless expense. A State
should be divided into inferior corporations, veiled with
powers competent to all acts of local police. What right have
the inhabitants of Suffolk to interfere in the building of a
bridge in Montgomery?[a] Who are the most competent judges of
a local convenience; the whole State, or the inhabitants of
the particular district?
[a] This was written in New York.
If the _collectiv sense_ of a State is the basis of law, and that sense
can be known officially no where but in an Assembly of all the people or
of their Representativs; or in other words, if there can be no such
thing as a _collection of sentiments_ made in any other manner, than by
a Convention of the whole people or their Delegates, where is the right
of _instructing Representativs_? The sense of the people, taken in small
meetings, without a general knowlege of the objections, and reasonings
of the whole State, ought not to be considered as the true sense of the
State; for not being possessed of the best general information, the
people often form wrong opinions of their own interest. Had I the
journals of the several Legislatures in America, I would prove to every
man's satisfaction, that most of the schemes for paper money, tender
laws, suspension of laws for the recovery of debts, and most of the
destructiv measures which have been pursued by the States, have
originated in towns and counties, and been carried by positiv
instructions from constituents to Representativs. The freemen, in these
cases, have wrong ideas of their own interest; their error, in the
first instance, is ascribeable merely to ignorance, or a want of that
just information, which they themselves would obtain in a General
Assembly.[33] The right therefore of prescribing rules to govern the
votes of Representativs, which is so often assumed, frequently amounts
to a right of doing infinite mischief, with the best intentions. There
is perhaps no case in which the people at large are so capable of
knowing and pursuing their own interest, as their Delegates are when
assembled for consultation and debate. But the practice of giving
binding instructions to Representativs, if it has any foundation, is
built on this maxim, that the constituents, on a view of their local
interests, and either with none, or very imperfect information, are
better judges of the propriety of a law, and of the general good, than
the most judicious men are (for such generally are the Representativs)
after attending to the best official information from every quarter, and
after a full discussion of the subject in an Assembly, where clashing
interests conspire to detect error, and suggest improvements. This maxim
is obviously false; and a practice built on it, cannot fail to produce
laws, inaccurate, contradictory, capricious and subversive of the first
rights of men. Perhaps no country, except America, ever experienced the
fatal effects of this practice, and I blush to remark, what candor
itself must avow, that few arbitrary governments, have in so short a
period, exhibited so many _legal infractions_ of sacred right; so many
public invasions of private property; so many wanton abuses of
legislativ powers! Yet the people are generally honest; and as well
informed as the people of any country. Their errors proceed from
ignorance; from false maxims of governments. The people attempt to
legislate without the necessary qualifications for lawgivers; yes, _they
legislate at home!_ and while this practice subsists, our public
measures will be often weak, imperfect, and changeable; and sometimes
_extremely iniquitous_. From these considerations, it appears that the
powers of a Representativ should be wholly discretionary when he acts as
a Legislator; but as an agent for a town or small society, he may have
positiv instructions. His constituents, in the last case, are competent
to instruct him, because they are the whole body concerned; but in the
first instance, they are but a part of the State, and not competent to
judge fully of the interest of the whole.
[33] An error, originating in mistake, is often pursued thro
obstinacy and pride; and sometimes a familiarity with
_falsehood_, makes it appear like _truth_.
To place the matter in the strongest point of light, let us suppose a
small State, in which the whole body of people meet for the purpose of
making laws. Suppose in this democracy, the people of a town or other
district should desire a particular act, for instance, a tender law.
Would the inhabitants of this town, have a right to meet a few weeks
before the General Assembly, where they all would expect to be present,
to debate and vote; and in this town meeting take an oath, or otherwise
bind themselves to vote for the act? Would they have a right to shut
their ears against argument; to lay a restraint upon their own minds; to
exclude the possibility of conviction, and solemnly swear to vote in a
certain manner, whether right or wrong! If in this case, the people of a
district have no right to lay a restraint upon themselves before they
enter the General Assembly, neither have they a right, in representativ
democracies, to lay such a restraint upon their Delegates. The very
reason why they are incompetent to direct their _Deputies_, is that they
cannot determine how to act _themselves_, till they come into the
Assembly. The very doctrine of representation in government excludes the
right of giving binding instructions to Deputies. The design of choosing
Representativs is to _collect the wisdom of the State_; the Deputies are
_to unite_ their Councils; _to meet_ and _consult for_ the public
safety: But positiv instructions prevent this effect; they are dictated
by local interests, or opinions formed on an imperfect view of facts and
arguments; in short they totally counteract the good effects of public
deliberations, and prevent those salutary measures which may result from
united Councils. They make the opinions of a small part of the State a
rule for the whole; they imply a decision of a question, before it is
heard; they reduce a Representativ to a mere machine, by restraining the
exercise of his reason; they subvert the very principles of republican
government.
But let us attend to the inconsistency of the practice. The oath
required of a Representativ, before he takes his seat, binds him to vote
or act from a regard to the public good, _according to his judgement_
and _the best of his abilities_. Some of the Constitutions contain an
oath that binds a Representativ, _not to assent to, or vote for, any act
that he shall deem injurious to the people_. But what opinion, what
judgement can a man exercise, who is under the restraint of positiv
instructions? Suppose a man so instructed should in conscience believe
that a bill, if enacted, would be prejudicial to his constituents, yet
his orders bind him to vote for it; how would he act between his oath
and his instructions? In his oath he has sworn to act according to his
judgment, and for the good of the people; his instructions forbid him to
use his judgment, and bind him to vote for a law which he is convinced
will injure his constituents. He must then either abandon his orders or
his oath; perjury or disobedience is his only alternativ.
This is no imaginary situation; I presume that many men have experienced
it. One very worthy member of the Legislature in this State[34] a few
years since, was in that very predicament; and I heard him express great
anxiety upon the occasion.
[34] New York.
How noble was the conduct of that gentleman in Sandwich (Mass.) who,
being chosen to represent the town in the late Convention, and
instructed to vote against the Constitution, _at all events;
notwithstanding any thing that might be said in favor of it_; rather
than submit to be fettered in this manner, resigned his appointment. The
name of this gentleman, THOMAS BOURN, Esq. ought to be held in
veneration by every true friend to his country, and his address to the
electors on that occasion, ought to be written in letters of gold. It
is recorded in these words: "Fellow Townsmen--The line of conduct which
has appeared to me right, I have ever wished to pursue. In the decline
of life, when a few revolving suns at most will bring me to the bar of
impartial justice, I am unwilling to adopt a different, and less honest
mode of acting. It is true, my sentiments at present are not in favor of
the Constitution; open however to conviction, they may be very
different, when the subject is fairly discussed by able and upright men.
To place myself in a situation, where conviction could be followed only
by a bigotted persistence in error, would be extremely disagreeable to
me. Under the restrictions with which your Delegates are fettered, _the
greatest ideot may answer your purpose as well as the greatest man_. The
suffrages of our fellow men, when they neither repose confidence in our
integrity, nor pay a tribute of respect to our abilities, can never be
agreeable. I am therefore induced positivly to decline accepting a seat
in Convention, whilst I sincerely wish you, gentlemen, and my
countrymen, every blessing which a wise and virtuous administration of a
free government can secure."
Such a bold and honest independence of mind are the marks of a good
Legislator. With such men as Mr. Bourn, in the legislativ department,
our lives, liberties and properties are safe. Such a genius, rising
amidst the obscurity of errors and false maxims, like a star emerging
from chaos, spreads the rays of truth and illuminates the surrounding
hemisphere. Considering the circumstances in which this gentleman was
then placed, I had rather be the author of that short address, than of
all the labored dissertations which have been written upon the proposed
constitution.
Another error, which is connected with the practice of instructing
Representativs, and may perhaps be one cause of it, is the opinion that
a Deputy chosen by a certain number of freemen, is _their Representativ
only_ or _particularly_: It seems to be believed that a Representativ is
bound to attend to the _particular interest of the men who elect him_,
rather than to the _general interest_. If this were true, it would
obviate, in some measure, the objections against instructions. But with
respect to every general act, the opinion is _clearly false_. The reason
why men are chosen by small societies of freemen, and not by the whole
body, is, that the whole body cannot be well acquainted with the most
able men in the different parts of the State. It is the best expedient
to correct the defects of government, or rather, it is the best
_practicable_ mode of election. To render the mode perfect, the _whole
body of freemen_ should be at liberty to choose their Delegates from the
_whole body_. This would destroy, in a great measure, the local views
and attachments which now embarrass government; every Representativ
would be chosen by the whole body; and the interest of the whole number
of constituents would be his object.
This mode is either impracticable or hazardous; notwithstanding this,
when a Delegate is elected by a _part_ of the State, he is really the
Representativ of the _whole_, as much as if he were _elected_ by the
whole. The constituents of every Representativ are not solely those who
_voted_ for him, but the _whole State_, and the man that acts from a
_local_ interest, and attends merely to the wishes of those men who
elected him, violates his oath, and abuses his trust. Hence the
absurdity of instructions, which are generally dictated by a partial
interest, and can perhaps in no case be the sole rule of a Legislator's
conduct. When therefore a Representativ says, _such is the wish of my
constituents; such are their directions_; his declaration is but
partially true; for his instructions are the wishes of a _part_ only of
his constituents. His constituents, whom he actually represents, and
whose greatest interest is the sole rule of his conduct, are _the whole
body of freemen_. This is an important truth, and I must repeat it; the
man who is deputed to make laws for a State, and suffers a local
interest to influence his conduct, abuses a sacred trust; and the
Representativ who obeys his instructions, in opposition to the
conviction of his own mind, arising from a general view of public good,
_is guilty of a species of perjury_.
Such are the opinions, which after long deliberation, I have formed
respecting the principles of a republican government. I feel a
diffidence in publishing sentiments so repugnant to the principles
received by my countrymen and recognized by some of the State
Constitutions. But a strong persuasion of the truth of these opinions,
acquired by reasoning, and confirmed by several years observations,
forbids me to suppress them.
A summary of the truths, deduced from the foregoing reasoning, is this:
That the power of a State is at all times equal; that neither the people
themselves, nor a Convention of their Delegates, have either the power
or the right to make an unalterable Constitution; that the power of
creating a legislativ body, or the sovereign right of election, is
solely in the people; but the sovereign power of making laws is solely
in an Assembly of their Representativs; that the people have no right to
give binding instructions to their Representativs; consequently a
distinction between a _Convention_ and a _Legislature_, can be merely a
difference of _forms_; that Representativs have no right to prolong the
period of their delegation; that being taken from the mass of the
people, and having a common interest with them, they will be influenced,
even by private interest, to promote the public good; and that such a
government, which is a novelty on earth, is perhaps the best that can be
framed, and the only form which will always have for its object, the
general good.
No. VII.