A Collection of Essays and Fugitiv Writings. Noah Webster

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СКАЧАТЬ 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.

      

       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 СКАЧАТЬ