A Collection of Essays and Fugitiv Writings. Noah Webster

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СКАЧАТЬ should be again resumed by the crown under pretence of ancient prerogativ: For this reason, the habeas corpus act passed in the reign of Charles 2d, the statute of the 2d of William and Mary, and many others which are declaratory of certain privileges, are justly considered as the pillars of English freedom.

      These statutes are however not esteemed because they are unalterable; for the same power that enacted them, can at any moment repeal them; but they are esteemed, because they are barriers erected by the Representativs of the nation, against a power that exists independent of their own choice.

      But the same reasons for such declaratory constitutions do not exist in America, where the supreme power is the people in their Representativs. The Bills of Rights, prefixed to several of the constitutions of the United States, if considered as assigning the reasons of our separation from a foreign government, or as solemn declarations of right against the encroachments of a foreign jurisdiction, are perfectly rational, and were doubtless necessary. But if they are considered as barriers against the encroachments of our own Legislatures, or as constitutions unalterable by posterity, I venture to pronounce them nugatory, and to the last degree, absurd.

      In our governments, there is no power of legislation, independent of the people; no power that has an interest detached from that of the public; consequently there is no power existing against which it is necessary to guard. While our Legislatures therefore remain electiv, and the rulers have the same interest in the laws, as the subjects have, the rights of the people will be perfectly secure without any declaration in their favor.

      But this is not the principal point. I undertake to prove that a standing Bill of Rights is absurd, because no constitutions, in a free government, can be unalterable. The present generation have indeed a right to declare what they deem a privilege; but they have no right to say what the next generation shall deem a privilege. A state is a supreme corporate body that never dies. Its powers, when it acts for itself, are at all times equally extensiv; and it has the same right to repeal a law this year, as it had to make it the last. If therefore our posterity are bound by our constitutions, and can neither amend nor annul them, they are to all intents and purposes our slaves.

      But it will be enquired, have we then no right to say, that trial by jury, the liberty of the press, the habeas corpus writ, and other invaluable privileges, shall never be infringed nor destroyed? By no means. We have the same right to say that lands shall descend in a particular mode to the heirs of the deceased proprietor, and that such a mode shall never be altered by future generations, as we have to pass a law that the trial by jury shall never be abridged. The right of Jury trial, which we deem invaluable, may in future cease to be a privilege; or other modes of trial more satisfactory to the people, may be devised. Such an event is neither impossible nor improbable. Have we then a right to say that our posterity shall not be judges of their own circumstances? The very attempt to make perpetual constitutions, is the assumption of a right to control the opinions of future generations; and to legislate for those over whom we have as little authority as we have over a nation in Asia. Nay we have as little right to say that trial by jury shall be perpetual, as the English, in the reign of Edward the Confessor, had, to bind their posterity forever to decide causes by fiery Ordeal, or single combat. There are perhaps many laws and regulations, which from their consonance to the eternal rules of justice, will always be good and conformable to the sense of a nation. But most institutions in society, by reason of an unceasing change of circumstances, either become altogether improper, or require amendment; and every nation has at all times, the right of judging of its circumstances and determining on the propriety of changing its laws.

      The English writers talk much of the omnipotence of Parliament; and yet they seem to entertain some scruples about their right to change particular parts of their constitution. I question much whether Parliament would not hesitate to change, on any occasion, an article of Magna Charta. Mr. Pitt, a few years ago, attempted to reform the mode of representation in Parliament. Immediately an uproar was raised against the measure, as unconstitutional. The representation of the kingdom, when first established, was doubtless equal and wise; but by the increase of some cities and boroughs, and the depopulation of others, it has become extremely unequal. In some boroughs there is scarcely an elector left to enjoy its privileges. If the nation feels no great inconvenience from this change of circumstances, under the old mode of representation, a reform is unnecessary. But if such a change has produced any national evils of magnitude enough to be felt, the present form of electing the Representativs of the nation, however constitutional, and venerable for its antiquity, may at any time be amended, if it should be the sense of Parliament. The expediency of the alteration must always be a matter of opinion; but all scruples as to the right of making it are totally groundless.

      Magna Charta may be considered as a contract between two parties, the King and the Barons, and no contract can be altered but by the consent of both parties. But whenever any article of that deed or contract shall become inconvenient or oppressiv, the King, Lords and Commons may either amend or annul it at pleasure.

      The same reasoning applies to each of the United States, and to the Federal Republic in general. But an important question will arise from the foregoing remarks, which must be the subject of another paper.

       NEW YORK, 1788.

On GOVERNMENT

      The important question I proposed to discuss in this number, is this: "Whether, in a free State, there ought to be any distinction between the powers of the people, or electors, and the powers of the Representativs in the Legislature." Or in other words, "whether the legislativ body is not, or ought not to be, a standing convention, invested with the whole power of their constituents."

      In supporting the affirmativ of this question, I must face the opinions and prejudices of my countrymen; yet if we attend closely to the merits of the question, stripped of all its specious covering, we shall perhaps find more arguments in favor of the opinion, than we at first suspect.

      In the first place, a Legislature must be the supreme power, whose decisions are laws binding upon the whole State. Unless the Legislature is the supreme power, and invested with all the authority of the State, its acts are not laws, obligatory upon the whole State.18 I am sensible that it is a favorite idea in this country, bandied about from one demagogue to another, that rulers are the servants of the people. So far as their business is laborious and embarrassing, it implies a degree of servitude; but in any other view, the opinion is totally false. The people ought at least to place their rulers, who are generally men of the first abilities and integrity, on a level with themselves; for that is an odd kind of government indeed, in which, servants govern their masters. The truth is, a Representativ, as an individual, is on a footing with other people; as a Representativ of a State, he is invested with a share of the sovereign authority, and is so far a governor of the people. In short, the collectiv body of the Representativs, is the collectiv sense and authority of the people; and so far are the members from being the servants of the people, that they are just as much masters, rulers, governors, whatever appellation we give them, as the people would be themselves in a convention of the whole State.

      But in the second place, the public good or safety requires that the powers of a Legislature should be coextensiv with those of the people. That a Legislature should be competent to pass any law that the public safety and interest may require, is a position that no man will controvert. If therefore it can be proved that the reservation of any power in the hands of the people, may at times interfere with the power of the Legislature to consult the public interest, and prevent its exercise, it must be acknowleged, that such a reservation is not only impolitic, but unjust. That a Legislature should have unlimited power to do right, is unquestionable; but such a power they cannot have, unless they have all the power of the State; which implies an unlimited power to do wrong. For instance, suppose the constitution of any state to declare, СКАЧАТЬ