A Collection of Essays and Fugitiv Writings
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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
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.
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
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
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?
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
NEW YORK, 1788.
On GOVERNMENTThe 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.
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."
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."
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.