ON GOVERNMENT.

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.

A Collection of Essays and Fugitiv Writings On Moral, Historical, Political, and Literary Subjects · 第 14 / 53 题