A Collection of Essays and Fugitiv Writings. Noah Webster
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.
NEW YORK, 1788.
The 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
In Pensylvania, after the late choice of Delegates to Congress by the people, one of the Gentlemen sent his resignation to the President and Council, who refered it to the Legislature then sitting. This body, compozed of the servants of the people, I suppoze, solemnly resolved, that there was no power in the State which could accept the resignation. The resolv was grounded on the idea that the power of the people is paramount to that of the Legislature; whereas the people hav no power at all, except in choosing representativs. All Legislativ and Executiv powers are vested in their Representativs, in Councilor Assembly, and the Council should have accepted the resignation and issued a precept for another choice. Their compelling the man to serve was an act of tyranny.
This pernicious error subverts the whole foundation of government. It resembles the practice of some Gentlemen in the country, who hire a poor strolling vagabond to keep a school, and then let the children know that he is a mere
"In a democracy there can be no exercise of sovereignty but by suffrage: In England, where the people do not debate in a collective body, but by representation, the exercise of this sovereignty consists in the