A Collection of Essays and Fugitiv Writings

No. VI

 NEW YORK, 1788.

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."

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.

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.

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 State34 a few years since, was in that very predicament; and I heard him express great anxiety upon the occasion.

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."