A Collection of Essays and Fugitiv Writings

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.

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.

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

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

 NEW YORK, 1788.

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."

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."