A Collection of Essays and Fugitiv Writings. Noah Webster
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.
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
Such is the article, which excludes the clergy from a right to hold civil offices. The people, might, with the same propriety, have declared, that no merchants nor lawyers should be eligible to civil offices. It is a common opinion that the business of the clergy is wholly
It is a capital defect in some of the States, that the government is so organized as not to admit subordinate acts of legislation in small districts. In these States, every little collection of people in a village must petition the Legislature for liberty to lay out a highway or build a bridge; an affair in which the State at large has very little interest, and of the necessity and utility of which the Legislature are not suitable judges. This occasions much trouble for the State; it is a needless expense. A State should be divided into inferior corporations, veiled with powers competent to all acts of local police. What right have the inhabitants of Suffolk to interfere in the building of a bridge in Montgomery?
[This was written in New York] Who are the most competent judges of a local convenience; the whole State, or the inhabitants of the particular district?