Front Page Titles (by Subject) : PHILODEMUS [THOMAS TUDOR TUCKER 1745-1828]: Conciliatory Hints, Attempting, by a Fair State of Matters, to Remove Party Prejudice - American Political Writing During the Founding Era: 1760-1805, vol. 1
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: PHILODEMUS [THOMAS TUDOR TUCKER 1745-1828]: Conciliatory Hints, Attempting, by a Fair State of Matters, to Remove Party Prejudice - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 1 
American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 1.
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Conciliatory Hints, Attempting, by a Fair State of Matters, to Remove Party Prejudice
Born in Port Royal, Bermuda, Tucker studied medicine at the University of Edinburgh, Scotland, practiced medicine in South Carolina, and served as a surgeon in the revolutionary war. His political career included service in the Continental Congress in 1787 and 1788, two terms in the United States House of Representatives (1789-1793), and appointment as United States treasurer from 1801 until his death. In this piece Tucker begins with a discussion of how to treat returned Tories, but moves quickly to outlining the basics of creating a government according to principles of republican government as it was understood at the time. He was quite advanced in his thinking, however, and clearly draws the distinction between a constitution as fundamental law versus simple legislative law.
In a Government where Despotism and Tyranny are established, it is both dangerous and useless for a private Citizen to meddle with Politics or to complain of Grievances. Men habituated to Slavery become patient of the Yoke, and cannot be roused to throw it off but by the Weight of some new and intolerable Oppression. Reason pleads in vain. The People are deaf to her Voice, blind to their own Claims and Interest, and cannot be made to understand that they hold their Privileges or Lives from any higher Power than the Will of their proud and arbitrary Rulers. It is scarcely possible to persuade them that they are of the same Class of Beings, that they are made of the same Materials. Or that they are equally the Objects of the Divine Care and Protection. Such is the fatal Influence of Slavery on the human Mind, that it almost wholly effaces from it even the boasted Characteristic of Rationality.
In a state that is blest with freedom, or a near approach to it, the case is greatly reversed. Every man may freely and securely exercise the privilege of giving his sentiments on all subjects of public concern: and they will generally be well received, provided they are offered with a decent regard to the opinions of his fellow-citizens, not with the authoritative tone of a dictator: It becomes the watchful spirit of patriotism to investigate the sources of every political mischief, and to point out the most easy, peaceable and effectual remedies: It is the duty of all to contribute their endeavours to establish freedom and good order in the community. The writer of the following observations feels himself to be sincerely interested in behalf of the natural and equal claims of mankind to political freedom, and would deem it the highest honor to be able to call himself a member of the most free commonwealth that ever existed. His thoughts will be found to be neither methodically arranged nor compactly expressed, owing in some measure to a want of leisure to bestow due attention on the subject. If, however, they shall be so far happily set forth as to meet with approbation, he will rejoice in the good fortune of having successfully performed the duty of a citizen. Should his well meant endeavours be frustrated by the feebleness of his abilities, yet the intention at least must always stand approved in his own breast.
The disturbances which not long ago interrupted the peace of this City, and the alarming length to which the heat and rage of party were carried, suggested the idea of endeavouring to lay before the public a fair state of matters, with a view to promote the restoration of that tranquility and harmony so necessary to the freedom as well as to the happiness of the community. What good purposes the disorderly proceedings alluded to could have been intended to answer, must perhaps for ever remain a secret in the minds of those by whom they were instigated. Nor is it easy to say what just cause of complaint could be urged in vindication of them. If the re-admission of proscribed persons was considered as a grievance, it certainly was a grievance which might have been prevented. The inhabitants of every District were long apprized of the petition proffered to the Legislature, and they had an unquestionable right to instruct their respective Delegates on that or any other subject. It is to be presumed that no member of either house would have thought himself at liberty to disregard the instruction of a majority of his constituents. But if no instructions at all were given, then was every man left to the guidance of his own reason and discretion; and if he acted conscientiously, he could not be chargeable with blame even tho’ it should be proved that he had committed an error. There appears to be no good reason for supposing that the members of the Legislature acted a dishonest part; for it is difficult to comprehend why the admission of the Tories should have been more interesting to them than to the rest of the citizens. If they were more connected with them by the ties of consanguinity, friendship or interest, it was surely a misfortune and next to a miracle that the people should have concurred so generally in such a choice. But if it be true that the Representatives in both Houses stood nearly or exactly in the same relation to the tory party that others did, it affords a presumption that their decision was, in its principle at least, not very different from what would have been made by the general voice of the people. This opinion will receive farther support from the consideration that petitions in behalf of some of the most obnoxious delinquents were presented from people of their own neighbourhood, who had been most exposed to injurious treatment from them, and that some of the members were actually instructed by their constituents to shew them all possible lenity. It does not appear that any instructions were given to treat them with severity. There was, I think, but one petition sent in against any of them, and this not accompanied with substantial evidence. In the joint committee appointed to the consideration of these matters, there was free access to every person who chose to give his deposition, yet it is notorious that much was alleged in favor of the most atrocious offenders, whilst the heavy charges exhibited against them without doors, however well founded, were in few instances properly or at all supported. Many were forward to vindicate, none, or but very few, inclined to accuse. Under these circumstances, could it rationally be supposed that it was the general will of the people that the Legislature should without evidence, or rather against evidence, confirm the severe penalities of the Jacksonborough law? a law passed at a time when men’s minds were inflamed by the sense of recent injuries and the pressure of present distress, and when it was perhaps deemed good policy to act with spirit and vigor even bordering on violence, with a view of recalling to their duty by threats such men as were incapable of being influenced by any other arguments than what were addressed to their fears or their private interest. It is not here meant to justify the severity of that act even at the time of passing it; but we may venture to contend, that although it should have been proper then, yet it does not follow that there was an impropriety in mitigating the rigor of it afterwards. And from what has been said, it seems reasonable to conclude that such was really the sense of a majority of the citizens of the State. If it be alleged that this should have extended only to certain instances, the answer is, that it was impossible to make a proper discrimination, as those characters, which were painted in the darkest colours by common report, had generally the greatest number of evidences to gloss over the baseness of their conduct. Without allowing any thing to the feelings of compassion, it is a rule of justice in doubtful cases to incline to the merciful side. But if we consider that in the present instance the decision involved in it the happiness or misery of hundreds of helpless women and children, it is hard to suppose that the hearts of men could be so steeled as to be unmoved by the supplicating voice of distress, or that they could obstinately determine on refusing that comfort and relief which they conceived themselves to be left at liberty to administer. It will scarcely be denied that some of the characters admitted were truly base and detestable; and this must certainly have been the opinion of every member of the Legislature: but circumstances with respect to each were so various, and the evidences so imperfect, that it was impossible by any scale to fix the just proportion of crimes and penalties. That this was not satisfactorily done by the Jacksonborough Assembly, appears from the great complaints made, that some persons scarcely chargeable with a fault were treated with the utmost rigor, whilst others highly criminal were suffered to pass without penalty or censure. This unequal distribution of justice, or rather unjust distribution of punishments, was the inevitable effect of the method that was adopted; and an attempt to remedy it would have been only to multiply errors and confusion. The intricacy of the case seemed only to admit of the following alternative; either to leave the Jacksonborough law, however partial, to operate in its full force, or to shew a general disposition to lend an ear of mercy to the prayers of the petitioners. The last appeared to accord most with the sentiments of the people at large, and it was most consonant to humanity; I mean a compassionate regard, not to the offenders themselves, where the delinquency was great, but to their distressed and innocent families. The measure was pardonable, even if it should prove to be an error against sound policy. But it is the lenient principle only, not the method of proceeding that I mean to justify.—I have dwelt the longer on this subject because it was made the chief pretext for the disturbances that have happened.
But this is not the only complaint that has been exhibited against the Legislature. They have been accused of an attempt to fix their own privileges too high, to stretch their authority too far, and to establish in the State an aristocratical plea of government. I am sorry, on this occasion, to revive the remembrance of an affair that made much noise during the last sitting of the Assembly:—the dispute betwixt two citizens, one of whom was of the House of Representatives. It is neither necessary nor agreeable to enter into the merits of the dispute, as it is not a matter of public concern which of the parties was first or most in fault. The question was brought before the House, and they thought proper to pronounce the insult or threat offered to one of their body to be a breach of privilege. Certain concessions were required of the offending party, which not being complied with, he was committed to jail. This was agreeable to parliamentary usage in England, and it is alleged that less rigor was exercised on this, than what is common on like occasions. But I am afraid we are too apt to derive our notions of government from the British constitution, which certainly is not in any one of its parts built on principles of true freedom. Our own constitution (if such it may be called) does perhaps warrant the measure, as it expressly gives to the Legislature every power formerly exercised or claimed under a monarchical government. But who gave them this power? Not the people, but the Legislature themselves, who, without leave of the people, took upon them to frame a constitution to their own mind. Whether intentional or not, it is a great error, and leaves them by far too much latitude in judging of their own privileges. The mysterious doctrine of undefinable privileges, transcendent power, and political omnipotence, so pompously ascribed to the British parliament, may do very well in a government where all authority is founded in usurpation, but ought certainly to be for ever banished from a country that would prefer the freedom of a commonwealth. We can not be too cautious of admitting the political language of other countries. The language of slavery must ever be either the offspring or the parent of slavery.
But although it is improper that the Legislature should have unlimited or very extensive privileges, yet it seems necessary that some respectability should be annexed to the character of every servant of the public, and that personal protection should be afforded to a member during the sitting of the Legislature, otherwise his constituents might be injured in one of their first rights, that of voting in all cases where themselves are to be bound. Whether or not, in the present instance, the House of Representatives carried their ideas of privilege too far, I will not pretend to decide. I believe they did not mean to stretch their power beyond the true meaning of the constitution, who’ possibly the habit of considering themselves on the same footing with the British Commons, might have led them into an error. Certainly they ought to have no privilege but what is demonstrably essential to the freedom and welfare of their constituents. The State is not made to dignify its officers, but the officers to serve the State. The dignity of the commonwealth does not consist in the elevation of one or a few, but in the equal freedom of the whole. The privileges of the legislative branches ought to be defined by the constitution, and should be fixed as low as it is consistent with the public welfare. Nor does it appear reasonable that they should be judges in their own cause, further than to give security to their members. If this be true, it shews the impropriety of blending, as we do, the legislative, judiciary, and executive powers of government in the same individuals. Other States have wisely thought it necessary to keep them entirely distinct.
There is a clear reason to be assigned why the privileges and powers of the British Parliament are undefinable, which will by no means properly apply to our Legislature. Their constitution is established only on precedents or compulsory concessions, betwixt parties at variance. These can be no longer binding than whilst the parties respectively possess the means of enforcing their observance. Of course it is, and always has been, a government of contention, in which the opposite parties have been for a length of time by chance so nearly balanced as not yet to have destroyed each other. How long this will last, it is difficult to say: but it may be affirmed that there is nothing of stability in their constitution, and that almost every new case of importance introduces some innovation in it. This is evident from their history, and will appear particularly so from a perusal of Judge Blackstone’s ingenious explanation of the right of succession to the crown; where it may be seen how every fresh incident has given occasion to a different modification of this right. The several powers of governmment are limited though in an uncertain way, with respect to each other; but the three together are without any check in the constitution, although neither can be properly called the Representatives of the people. It is for this reason that this transcendent power or omnipotence is ascribed to the Parliament. What stretch of authority they have usurped and exercised with impunity, is considered as their established privilege; for they hold it as a maxim, that whatever they have once done (however improperly) they have a right to do again. What farther powers they may safely assume, experiment only can teach. Their privileges are undefinable, because it is impossible to say, how far they may be extended without rousing the people to a tumultuous opposition or civil war; for with them there is no other remedy against tyranny and oppression. Where there is a standing army, even this remedy, dreadful as it is, is scarcely to be had. With a few troops, it is easy to prevent the unarmed multitude from concerting measures for the security or recovery of their freedom. It must be some flagrant and heavy oppression that can at the same moment excite so general a resentment as to kindle the flame of war. And when this is done, and attended with success, it is again a thousand to one that the leaders of the opposition grasp at the very power they had condemned in others, and establish themselves more arbitrary tyrants than those they had contributed to overthrow. Witness the Decemviri in Rome, Cromwell in England, and, in short, examples from the records of all nations.
The difference betwixt a true commonwealth or democracy and other forms of government we shall here endeavour to point out.
In a true commonwealth or democratic government, all authority is derived from the people at large, held only during their pleasure, and exercised only for their benefit. The constitution is a social covenant entered into by express consent of the people, upon a footing of the most perfect equality with respect to every civil liberty. No man has any privilege above his fellow-citizens, except whilst in office, and even then, none but what they have thought proper to vest in him, solely for the purpose of supporting him in the effectual performance of his duty to the public. No man has surrendered any portion of his natural freedom, except the liberty of refusing to contribute his equal share of personal and pecuniary service for the common benefit. This he gives up in exchange for the valuable consideration of receiving protection both in person and property against the evil disposed part of his fellow citizens or a foreign enemy, and of partaking the advantages of all civil regulations. In an uncivilized State he has a right to consider himself or his family as independent of all the world, and to refuse entering into any compact or contributing his share of service for any general good. But in this case, it is evident that he is not intitled to the assistance or protection of his neighbours under any circumstances whatever, and therefore must be exposed to every injury which the malevolence or avarice of wicked men may prompt them to commit. There cannot be a moment secure of property, liberty or life. Still less is he intitled to share in the advantages of any useful regulations or works executed by general contribution.—As to the power of injuring one’s neighbour, it is not a matter of right even in an uncivilized State, and therefore the restraint a man suffers in that respect in society is not to be considered as any abridgement of his natural freedom. It is no restraint upon him as a good man, but only as a wicked man. All the difference is, that in exercising the power of doing injuries in an uncivilized State, he only makes war against the persons injured; in a State of society he declares war against a whole nation, who are mutually bound to make it a common cause and to defend each other against all invaders of their just rights. The primary end of social institutions is, or ought to be, to impose, by force or the fear of punishment, that restraint on the actions of wicked men, which good men voluntarily impose on their own. The other considerations before hinted at, are also of great weight, namely, the doing for general convenience, by joint exertions, many things which no individual could possibly effect or separately enjoy. But these are secondary matters, and their utility springs chiefly from a state of society previously established. And as every citizen does, either directly or indirectly, receive from every regulation, or, at least, from all together, advantages more than equivalent to his proportion of labor or expence, he is content, when he enters into a social compact, to subject himself to be called upon for his quota of service on all occasions where the public good is supposed to be interested, which is to be judged of by a majority of voices collected individually throughout the State, or (which is infinitely more convenient) through the means of representatives freely chosen and, as nearly as possible, proportioned to the number of persons represented in the several Districts. These representatives are invested with such certain powers as the constituents think proper to intrust them with, and none other, and those for such time only as is judged safe and expedient. Whilst they confine themselves within the limits prescribed, their act is the act of the people. But when they exceed their bounds and violate the conditions of their appointment, their acts are no longer binding, and they are accountable to their constituents for a traiterous abuse of trust. But the terms of the compact or constitution should be so contrived, as to provide a remedy, in all such cases, without outrage, noise or tumult. If tumultuous measures are necessary to procure redress, in any case of grievance whatever, it is owing to a fault in the original compact. If turbulent men are allowed with impunity to violate the rights of their fellow-citizens, under pretence of obtaining redress of grievances, or any other pretence whatever, it is an evil that may likewise be traced to the same source.—This is a short and imperfect sketch of a free or democratic constitution. It is the only form that can possibly consist with the common and unalienable rights of mankind.
In every other form of government authority is acquired more by usurpation than by appointment of the people; it serves to give dignity and grandeur to a few, and to degrade the rest; and it is exercised more for the benefit of the rulers than of the nation. The constitution as established upon a compromise of differences betwixt two or more contending parties, each according to the means it possesses, extorting from the others every concession that can possibly be obtained, without the smallest regard to justice or the common rights of mankind. It is a truce, by which the people are always compelled to surrender some, and generally a very large portion of their freedom, and of course they have a right to reclaim it whenever more favorable circumstances put it in their power.—If the Prince at the head of an armed force, reduces them to unconditional submission, he becomes a despotic Monarch and the people are in the most deplorable state of slavery. They have no longer the presumption to imagine themselves created for any other purpose than to be subservient to his will, and to administer to his pleasures and ambition. They even think it an honor to be made the base instruments of his tyranny. They look up to him with a reverential awe surpassing what they feel for the Almighty Parent of the Universe. Such is the servility of man degraded by oppression.
If the people retain still some resources which may render the issue of the contest doubtful, the Prince, for his own safety, most humanely grants them some privileges, and is then a limited Monarch. They are often deluded into an opinion, that what liberties they enjoy are intirely derived from his bounty; and taught to consider themselves as the happiest of mankind in having a sovereign who graciously condescends to allow them the possession of what happily he had not the power to wrest out of their hands.
In the first of these cases the government has a chance to be lasting. The Prince having obtained every thing has nothing more to wish for; the people having lost every thing can scarcely feel any new grievance to stir up their resentment. The former is possessed of the means of supporting his usurpation; the latter, being totally disarmed, lose all spirit of resistance.—In the other case, that of a limited monarchy, the government is likely to be fluctuating. An ambitious Prince makes farther encroachments on the people’s liberties; a weak Prince loses a part of the authority he inherited. The opposite powers being in a manner balanced, now one now the other prevails, according to the spirit and judgment of their respective exertions. It is, in short, a state of nature as a state of war; but the same may with equal truth be affirmed likewise of the state of society, in every instance except in the case of a true Democracy, if fortunately such should exist. When the Prince is despotic, the people may be considered as prisoners at discretion, their lives, liberties, and property being all at his mercy. If his power is limited, occasional truces are made for reciprocal convenience, and broken by the party that first finds its interest in their violation. The same is true of all mixt governments, the component of balancing powers being ever at variance.
Often it happens that the contest for power is betwixt the Prince and Nobles, the people having been previously enslaved. In this case the form of government is variable so far as relates to the Prince and Nobility, but the slavery of the people is lasting. This happens in all feudal governments.
Sometimes the dispute is betwixt the bulk of the people and a few leading men, who having been honored with the confidence of their fellow-citizens, betray their trust, grasp at power, and endeavour to establish themselves in permanent superiority. Their success constitutes an Aristocracy, which is generally a most oppressive government, although often, for the sake of blinding the people, it is dignified with the name of a Republic. Indeed every constitution that has hitherto existed under that name has partaken more or less of the nature of an Aristocracy: and it is this aristocratic leaven that has generally occasioned disorders and tumults in every republican government, and has so far brought the name into disrepute, that it is become a received opinion, that a Commonwealth, in proportion as it approaches to Democracy, wants those springs of efficacious authority which are necessary to the production of regularity and good order, and degenerates into anarchy and confusion. This is commonly imputed to the capricious humour of the people, who are said to run riot with too much liberty, to be always unreasonable in their demands, and never satisfied but when ruled with a rod of iron.
These are the common place arguments against a democratic constitution. They are the pleas of ambition to introduce Aristocracy, Monarchy, and every species of tyranny and oppression. Unfortunate indeed for the liberties of mankind, if it be true, that, to render them orderly, it is necessary to render them slaves. However generally this position may have been admitted, we may venture to deny that it is an inference fairly drawn from experience. Without better proof than has yet been adduced, we cannot justly grant that the people at large are capricious or unreasonable, or that a true Democracy will be productive of disorder or tumult. On the contrary, I am inclined to believe, that in general the people are pretty easily satisfied when no injustice is intended towards them; and if it be allowed to reason a priori in such case, I conclude that a real Democracy, as it is the only equitable constitution, so it would be of all the most happy, and perhaps of all the most quiet and orderly.
What is here advanced I shall undertake to maintain upon the principles I have already endeavoured to establish.
A despotic government is often both quiet and durable, because the tyrant, having an army at command, is thereby enabled to keep the people always in awe and subjection, and to deprive them of all opportunity of communicating their complaints, or deliberating on the means of relief. Conspiracies happen often among the troops, the reigning Prince is murdered or dethroned, but another tyrant takes his place, and the nation remains in peaceable servitude, scarcely sensible of the revolution.—When the government is less despotic, the people have more both of power and inclination to resist oppression. They are not so thoroughly stript of the means of defence, they have more opportunity of concerting their measures, and their mental faculties retain more of their natural activity. Such a government must generally be contentious and changeable. The rules cannot be long satisfied with a limitation of prerogative, or the people with the abridgement of their privileges. The blame is generally laid on the people, but it is easy to see that the change is unjust. So far from being unreasonable in their demands, there is perhaps no one instance in history, where they have ventured at once to push their claims to the full extent of reason, and to make an ample demand of justice. They rarely complain at once of more than one or a few grievances. When these are removed, they become sensible of others. In proportion as they acquire more freedom, they gain more strength of mind and independence of spirit. They see farther into the nature and extent of their own rights, and call louder for the restoration of them. This is called turbulence and caprice, but is in reality only a requisition of justice; which being always refused, or but partially and unwillingly granted, it is to the oppressors, and not the oppressed, that the mischief is to be imputed.
It is thus, I apprehend, and no otherwise, that a government approaching to Democracy, is apt to be disorderly. The people have a right to complain, so long as they are robbed of any portion of their freedom, and if their complaints are not heard, they have a right to use any method of enfranchising themselves. They have a just claim to perfect political equality, and it is ungenerous and base to deny them justice, and at the same time load them with reproaches.
It is true indeed, that they sometimes mistake the object they are in pursuit of, and still more frequently, the proper means of obtaining it. Deceived and misled by the artifices of factious men asuming the mask of patriotism, they wander from the path that leads to freedom and happiness, and precipitately rush into a wilderness of confusion, terminating in irretrievable ruin. Although they are at all times intitled to demand an ample redress of grievances yet it is not by violent means that this is properly or effectually to be sought. Violence can only be justifiable where it is the only resource. This is commonly the case in countries where a standing force is kept up, which may hinder the peaceable deliberations of the people, and render it impossible for any matter to be quietly determined by a majority of voices. We have already observed, that even in those cases, it is a very uncertain resource, and often productive of infinitely more mischief than good. In this State we are happily in no need of having recourse to such an expedient. Nothing could possibly excuse the absurdity of adopting it, as it would certainly be the most effectual method that could be devised of bringing on us the very evil we would prevent. The authors or instigators of such measures ought to be held in the utmost detestation, unless it should first evidently appear that it was the only remedy. Nor are secret combinations better authorized, or less dishonorable to the characters of the promoters. They are to be regarded in no other light than as insidious and treacherous attempts of a minority to rule a majority; which is the very definition of an aristocratical government, so loudly and so justly condemned. In vain shall any man pretend to patriotism, who encourages a violation of the laws and of the rights of his fellow citizens. In vain shall he call himself a friend to freedom, who daringly sets himself up as a dictator and tyrant over his neighbours. No one can be a well-wisher to the rights of mankind, who would by secret practices, or actual violence, take the advantage of the unsuspecting security of others, to deprive them of the free and effectual exercise of those rights. An honest man, and a real lover of freedom, will fairly and openly declare what he has to propose, and leave to a majority to judge of it, to adopt or reject it. He is free to support his opinion by every possible argument, but he must finally allow others the liberty of having an opinion too. It is a strange way that some men have of vindicating the cause of freedom, by denying others even the freedom of thinking. Whoever acts in this manner is a tyrant at heart, and should he, under the cloak of patriotism, gain influence with the people, he will be no longer their friend than whilst he stands in need of their countenance and support. Whenever he can securely do it, he will shew himself the bitter enemy of all who stand in the way of his ambition.
It is from a perfect conviction of their fatal consequences, that I warn my fellow-citizens against irregularities and civil dissention. But I mean not to inculcate the fallacious and dangerous opinion of security. On the contrary, I would wish it to be understood, that, without our most earnest and vigilant exertions, we shall never be firmly established in that glorious condition of freedom, which was the object of our late bloody contest. But let us charitably hope that the danger does not spring from any sinister views of any who have lately been intrusted with the powers of government. Let us generously allow, until we have more conclusive evidence of the contrary, that in general they have done their duty to the best of their judgment, and have not been desirous of exercising any greater powers than what they conceived to be delegated to them by the constitution. But although we may be honest men, we were, at the commencement of the late war, but novices in politics; and it is to be wise that we may not now be too indolent to correct our mistakes. Bred up in the erroneous notion of the freedom and excellence of the British constitution, we have unthinkingly adopted many of its faults. After lopping off the monarchical part, we vainly imagined that we had arrived at perfection, and that freedom was established on the broadest and most solid basis that could possibly consist with any social institution. That we have in some points been mistaken, is too evident to be denied. But error is the inheritance of human nature, and, when it is not intentional, it must ever be excused. It is the part of prudence to guard against its evil consequences; but to impute it always to motives of dishonesty, is neither generous nor just. Ambitious rulers will indeed be found in all countries;—a few, who, to aggrandize themselves, will not scruple to invade the rights of their fellow-citizens. If such there be amongst us, let them be held in merited contempt; let them be accounted unworthy of any public trust; and, if the laws are adequate, let them be punished with severity. But, of all things, let us avoid the rock of dissention and violence. Let us consider, that in our present situation, tumultuous proceedings are as unnecessary as they would be improper and ineffectual. Other means are in our hands, as much preferable as good order is to confusion, as peace to discord, as efficacy and security to disappointment and ruin. However faulty our constitution may be, it has fixed no set of men so firmly in power as to enable them to set themselves up against the general voice of the people. The sovereignty of the State (except so much as has been imparted to the United States in Congress) is still in the hands of the latter. They have made no formal surrender of any portion of their liberty, nor is there any standing force in the State to deprive them of the exercise of it.
Our present Constitution was framed in a time of distress and confusion, and is perhaps fully as good as might have been expected under such circumstances. It is not founded on proper authority, being only an act of the legislature; but the people have hitherto acquiesced in it, and it must serve, and ought to be supported, as the rule of government, until some regular method is adopted of amending, and fixing it on a more solid basis. If it is the sense of a majority of the citizens that this ought to be done, it is entirely in their power to effect it without the smallest disturbance.
The constituents of every District have an undoubted right (however speciously it may have been lately denied) to instruct their representatives in both Houses. Without entering into arguments upon the subject, we may confidently affirm, that the right is as certain, and founded in the same principle of freedom as the right of any State to instruct its delegates in Congress. We may also be bold to assert that if the people ever suffer a contrary doctrine to be established, they will have yielded up the distinguishing privilege of free citizens. It must indeed be very rare that the exercise of this right can be either necessary or prudent. The frequent exercise of it must be productive of infinite embarrassment to the representatives, who ought certainly to have the liberty of retiring whenever they receive instructions which their own feelings cannot approve. But the right is inherent in the people, and the acknowledgment of it ought to make a clause of the constitution.
Let the inhabitants of every District, at the next meeting of the Assembly, authorize and require their representatives in both Houses to appoint a time for choosing delegates to meet in convention, for the express purpose (and no other) of revising and amending the Constitution, rendering it more conformable to the true principles of equal freedom, and fixing it on the firm and proper foundation of the express consent of the people, unalterable by the legislative, or any other authority but that by which it is to be framed. Nor should this be done hastily. The members elected should, before they meet, be allowed at least six months to consider of the important business to which they are appointed, that they may not enter upon it unprepared. The convention should, after the most mature deliberation, publish the articles of the new constitution, and adjourn for at least six months, that the people at large may also have an opportunity to consider the matter duly, and to give, if they think proper, fresh instructions with respect to any or every article. The whole being again debated in convention, must at length be determined by a majority of voices, and notice given when the new form is to have effect. Thus may every real grievance be removed, and peace, freedom and happiness lastingly established in the Commonwealth. I am sanguine enough to flatter myself, that, by pursuing these measures, the most free and happy constitution would be established that ever existed in any part of the globe; and being founded in undeniable authority, it would have the most promising chance of stability. Whatever aristocratical principles have, through inexperience, inadvertence or design, been admitted into our present system, might, by these means, be totally done away. It is in no wise surprizing, that, accustomed as we were to a monarchical government, we should not have been able to divest ourselves of inculcated prejudices, and immediately arrive at pure republican principles; especially as there is perhaps not a single precedent in the annals of mankind that would serve as a proper guide, every government that has yet been denominated republican, at least all of modern date, partaking (as we have before observed) more or less of the aristocratical form. It is rather to be admited that the several States came so near as they did to the true nature of a commonwealth. In this, however, some of our sister States have certainly excelled us; although imperfections have been discovered in the constitutions of them all.
The matter of a convention was proposed at the last sitting of the Assembly, and passed in the House of Representatives, though not without very powerful opposition. In the Senate it was rejected unanimously, or by a great majority; which was by some supposed to arise from an apprehension that this branch of the legislature would be thrown out by the new constitution. Were the minds of men always free to decide without prejudice or partiality, two branches would be entirely useless in the legislature. But, subject as we all are to be influenced by interest, by passion, and by the sentiments of a few leading men, the division of the legislative power seems necessary to furnish a proper check to our too hasty proceedings. Two separate bodies of men do not so readily, without good reason, come into each other’s opinions, as the same men collected together in one general meeting. It is therefore probable, that such an innovation in the constitution would not be judged necessary, or proper.
The opposition made to a convention, in the House of Representatives, was founded chiefly on the following reasoning:
1st. That there must be a total dissolution of our present constitution, and that of course the country must be thrown into a state of anarchy and confusion, before a new one could be established.
2d. That the powers of government being annihilated, every person in the land would have an equal right to become a party in the new compact, and to give his vote as such; the consequences of which might be fatal to republican freedom.
3d. That the new constitution, being framed in compliance with an act of the legislature, could not possibly be of more validity or stability than the present, which rests on the same authority.
4th. That the people at large having never applied for or directed any alteration of the present constitution, was to be considered as a tacit acknowledgement that they are satisfied with it as it now stands.
5th and lastly, That the convention being under no control with respect to the form they were to establish, might fix on a monarchy, or any other form injurious to the rights of the people.
With regard to the first and second of these objections it may be observed, that a State is only a large society of men connected together under certain regulations, to which the assent of all has either been expressly given, or implied by silent acquiescence. The actual citizens only are the members of this society, and the general consent, or the concurrence of a majority, may, just as in a society of twenty or fifty, alter the rules of their establishment, either wholly or in any degree they choose, without throwing it into any confusion, and without admitting to a vote a single person who is not already intitled to the full privilege of a member. Aliens therefore can have no claim of interest in the business, nor will there be occasion for a moment’s interval betwixt the abolition of the present and the giving force to the new constitution. This latter difficulty was never thought of, when the legislature, in the year 1778, undertook, by their own authority, to abolish the first constitution of the State, and substituted the present in its place.
The third objection would be conclusive against the method proposed in the legislature, of passing an act to order a convention, and to dictate to them their business. If it had passed, it should have been in form of a recommendation to the people, not of an order. What is done by order of the legislature, is the act of the legislature, and nothing more. But what is done by advice of the legislature, is the free act of the people, as much as if the proposal originated with them.—But this objection does not apply against the plan being proposed. The authority of the people at large being the true sovereign authority, and superior to the legislative, a constitution framed by their express order, and not made of force without first having the sanction of their approbation, would be superior to the legislative power, and therefore not alterable by it. It is a vain and weak argument, that, the legislature being the representatives of the people, the act of the former is therefore always to be considered as the act of the latter. They are the representatives of the people for certain purposes only, not to all intents and purposes whatever. In a free state, every officer, from the Governor to the constable, is, so far as the powers of his office extend, as truly the representative of the people, as a member of the legislature; and his act, within the appointed limitation, is the act of the people; for he is their agent, and derives his authority from them. I say, in a free state; for in other governments the officers are more properly the representatives of the prince, or of others who have usurped the sovereign power. With us it would be an absurd surrender of liberty, to delegate full powers to any set of men whatever, unless in cases of the most urgent necessity; such a necessity as rarely exists in any country. Delegates may be sent to a convention with powers, under certain restriction, to frame a constitution. Delegates are sent to the General Assembly with powers, under certain restrictions prescribed, or supposed to be so, by a previously established compact or constitution, to make salutary laws. But if either one or the other should exceed the powers vested in them, their act is no longer the act of their constituents.—Whatever is done by the particular injunctions of the people, can never be lawfully repeated or altered but by their express consent. Such would be a constitution made on proper conventional authority, as here proposed. Whatever is done without their instructions or express consent may at any time be repealed without consulting them. Such are most acts of the legislature, it being rarely either necessary or possible to receive instructions in such case; and such also particularly is our present constitution founded in such an act, passed at a time when it was impossible to consult the people, and therefore alterable or repealable at pleasure by the same authority. There is indeed a clause prohibiting a repeal or alteration under certain conditions; but this is trifling and unavailing; for no legislature can, by any clause in an act, prevent a future legislature from repealing it, either wholly or partially, as they please. Besides, were these conditions to be inviolably observed, they are not sufficiently restrictive to secure the public freedom.
As to the 4th objection, it may be said, that if the people think proper to come into the plan here proposed, the objection will be removed, for it will then be evident, that they see the insufficiency of the present constitution, and wish for one contrived upon a more solid and permanent establishment, and also (if it may be done) upon principles of more perfect political equality. But should the people really determine to be silent in so important a business, then indeed will this objection have all the weight that was intended. If they are resolved not to adopt those regular and peaceable means, which are in their power, of obtaining, an alteration, it will appear that they are actually satisfied, or what amounts to the same thing, too indolent to concern themselves about the matter, and in this case the present constitution, with all its faults, must still be the rule of government; and it will be the duty of every citizen to acquiesce in it as the act of a majority, since a majority cannot be prevailed on to determine on its alteration. If our constitution is ever so defective, it does not follow that it is not to be regarded. Until altered, it must be considered as the voice of the people, and he that infringes it is an enemy to the State. A defective constitution is infinitely preferable to anarchy, confusion, and a toleration of the licentious proceedings of turbulent and violent men, who have no better way of evincing their regard for liberty than by an outrageous invasion of the liberties of others.—But it is to be hoped that the people at large will not be so careless of their own interests as to neglect paying the most serious attention to a permanent establishment of freedom, whilst it is yet in their power. At the present time they may quietly carry into execution any thing they think proper. Their hands are not yet tied, though there is danger that they may be so at a future day.
The last objection above stated is obviated by the terms of the instructions here proposed, requiring that the constitution should be framed on principles of equal freedom, and therefore precluding all power of establishing any but a republican form.
In order to shew how easily this business may be performed, we shall here point out more particularly the method which seems to be advisable, and which being uniformly pursued cannot fail to be effectual.—In each district, let any set of men, or any individual (for any one has a right to do it), put up advertisements in the most frequented places, to the following effects:
The inhabitants of the district (or parish) of _____ properly qualified to vote at elections, who wish to have the constitution amended and fixed on an authority that may secure permanent freedom to the community, are requested to meet at _____ on the * tenth day of December, in order to instruct their Representatives in both Houses to appoint a convention for the above purpose. And that no person may imagine that this invitation is intended to draw him into a blind concurrence in disorderly or unwarrantable measures, the following is offered in the form of the instructions proposed to be signed; which will remain, from the above appointed day until the meeting of the Assembly, in the bounds of A. B., in said place, for the convenience of those who would choose to put their names to it, but do not find it suits them to attend the meeting.
A. B. Senator, and C. D. Member of the House of Representatives for the district of (or parish) _____
We whose names are undersigned, free citizens and electors of the district of _____ do recommend to you, and if it shall appear that we are a majority of the electors of this district, we do hereby authorize and require you in the respective houses in which you represent us, to move for and endeavor to get passed a resolve for appointing a day to elect delegates to the several districts and parishes throughout the State (the number in each, to prevent disputes about the proportion, to be the same as the number of representatives in both Houses) to meet in convention six months or thereabouts after their election, for the express purpose (and no other) of revising and amending the constitution, rendering it more conformable to the true principles of equal freedom, and fixing it on the firm and proper foundation of the free and express consent of the people, unalterable by the legislative or any other authority but that by which it is to be framed, namely the free voice of the citizens at large, to be occasionally collected in such manner as shall be therein appointed. And the said convention shall be obliged, after drawing up the articles of the said constitution and before making it of force, to have the same printed at the public expense, and a sufficient number of copies distributed throughout the State for the inspection and consideration of the people. And the said convention shall afterwards adjourn for six months or thereabouts and then meet again to pass the said constitution and carry it into effect, either wholly or with such alterations as may be agreed to by the majority of voices, the Delegates from each District or Parish being bound to obey any instructions they may receive relative thereto from a majority of their respective constituents, if any they should think proper to give. But that no Delegate may be compelled to vote contrary to his own feelings and ideas of rectitude any who shall disapprove his instructions shall be at liberty to resign in favor of another to be elected in his place.
C. D. &c.
Such an instruction or recommendation, although it should not be signed by a majority, ought to have considerable weight with the Representatives, unless they should receive a counter instruction or recommendation from a dissenting party.—If the above form should seem sufficient and not liable to exceptions, it would be best to adopt it for the sake of conducting the business upon one uniform plan. Measures that might happen, in some particulars, to be contradictory, would be apt to defeat the main intention.
It has been observed that the present constitution appears to be in many respects faulty, but the compass of this publication does not permit the author to enter into a detail of its defects. Nor does he think himself at all competent to so arduous an undertaking. Should the measures be approved which have been above proposed, a few remarks on some necessary alterations might possibly furnish the subject of another paper. It would be the duty of every citizen to contribute what useful hints his reflection and reading might suggest. And it would behove the people at large to be particularly careful, on so important an occasion, to elect as Delegates none but men of the most liberal and disinterested sentiments—men disposed, in real sincerity of heart, to lay the foundation of equal and permanent freedom.
Although we decline expatiating here on the imperfections of our present constitution, yet it will not be amiss, by way of urging the expediency of our plan, to repeat that one great and sufficient objection to it, if no other could be found, is that it has not the sanction of that authority which is absolutely necessary to give it a chance of stability. It is established on no higher authority than that of the Legislature, and it is ridiculous to suppose that any body of men can make a law to limit their own power; for such a law can only be of force during the pleasure of those who made it. If the law itself is allowed to be valid, the repeal of it must be so likewise.—The constitution should be the avowed act of the people at large. It should be the first and fundamental law of the State, and should prescribe the limits of all delegated power. It should be declared to be paramount to all acts of the Legislature, and irrepealable and unalterable by any authority but the express consent of a majority of the citizens collected by such regular mode as may be therein provided. Who can say that the laws of this State are now, and will at all times be, strictly conformable to the words of the constitution? And if they are not, who can deny that they are nevertheless of force, and do therefore operate as a partial repeal of it? What security then can there possibly be for its duration? Clearly none at all.
That a constitution should be established on conventional authority and expressly superior to the legislative power will be more fully evinced by an affair which happened in one of our sister states.—A law was inadvertently passed which militated against the constitution. A case in point occured, on which depended the lives of several citizens. The question was learnedly argued by the first lawyers before the Supreme Court of Appeals, and the Judges, who were deemed equal in ability to any on the continent, were much embarrassed and delivered the most opposite opinions on the matter. The constitution of that state was formed by authority of a convention, but it did not expressly declare that no act of the legislature contravening it should be of force.—The Judges were sworn to judge according to law.—Some of them vainly endeavoured, by a forced construction to reconcile the act with the constitution.—Others were of opinion, that an act of the legislature infringing the constitution was ab initio void, and not to be regarded as a law.—Others, in short, held themselves to be bound by their oath to judge according to law, and not competent to pronounce that to be no law which was really an act of the legislature.—Thus was their constitution, although founded on better authority than ours, in danger of being infringed by the inadvertence of the General Assembly. How much greater is the danger with us?—especially if we should ever be so unfortunate as to have in appointment a set of men capable of using their authority to sinister purposes. A thousand evils may arise from the want of that stamp of conventional authority to our constitution which is so intirely necessary to give it stability. It is also necessary to give energy and effect to the powers of government. The legislature having their limits prescribed will be less liable to give cause of jealousy to the people, and both their laws and their persons will be more respected. The Magistrates deriving their powers from the proper source of all power, will do their duty with that confidence and spirit, which naturally flow from a consciousness of acting on authority lawfully conferred, not unjustly assumed. They will be sensible that they are truly the servants of the public, and that any opposition made to them in the due discharge of their respective offices, must be considered and treated as a violation of the sacred rights of the people at large, for whose benefit, and by whose undeniable authority, they are empowered to officiate. They will be convinced that it cannot but be the intention and wish of the community, that they should be vested with such powers as are necessary for the primary purposes of social institutions, powers sufficient to enable them to preserve the peace of the commonwealth, and to protect every member of it both in person and property. Without powers adequate to these purposes, we may as well be without Magistrates, without Laws, without a constitution, for no man can be said to enjoy even the shadow of freedom in a state whose laws and police do not protect him from insult and injury. Licentiousness is a tyranny as inconsistent with freedom and as destructive of the common rights of mankind, as is the arbitrary sway of an enthroned despot. And those, who wish to call themselves truly free, have to guard, with equal vigilance, against the one and the other. It will be of little use to have the means of preventing oppression from men of our own appointment, if we are obliged to bear it from those who, in opposition to the voice of the people, choose to appoint themselves rulers and dictators of the state. The Magistrates should have ample power to preserve the peace, by requiring the assistance of citizens, not by employing a military force, of which happily, we have none at present in the state; and happy it would be for us, that we should never have occasion for any. Officers of government acting in the best of their judgment for the good of the community in all emergencies, have a claim to the support and approbation of all good citizens. In such a state of freedom as we have described, it is to be hoped that this support will always be at hand, but very seldom wanted. In such a state it would be fairly tried (and certainly the object is worth the pains of an experiment) whether a constitution founded on the just and generous principles of perfect political equality is really productive of riots and commotions, or whether, on the contrary, it would not prove to be the most quiet, as it certainly is the only equitable system that can be devised. Surely no just inference can be drawn against it, until one fair trial at least shall have been made; and hitherto we know of none. It has been too common with us to search the records of other nations, to find precedents that may give a sanction to our own errors, and lead us unwarily into confusion and ruin. It is our business to consult their histories not with a view to tread, right or wrong, in their steps, but in order to investigate the real sources of the mischiefs that have befallen them, and to endeavor to escape the rocks which they have all unfortunately split upon. It is paying ourselves but a poor compliment, to say that we are incapable of profiting by the misfortunes of others, and that with all the information which is to be derived from their fatal experience, it is so rash for us to attempt to excell them. If with all those advantages, together with the peculiar happiness of our present free, uncontrolled, and, as it were unconnected situation (such as no nation before us ever did, and probably none after us ever can enjoy); if with all these, I say, we are incapable of surpassing our predecessors, we must be a degenerate race indeed, and quite unworthy of those singular bounties of Heaven, which we are so unskilled or undesirous to turn to our benefit. The superiority of our condition over that of other nations is truly amazing. It seems as if the Almighty had intended the various revolutions and misfortunes of all other states for our particular instruction, and then placed us in the only possible situation in which we could practically profit by it. Before us, no people were ever so intirely relieved from the control of hereditary rulers and arbitrary force. Before, as none have ever been so free to associate upon terms of equality. And could it have been their lot to be ever thus circumstanced, still would it have availed them nothing. All before us, have been surrounded with neighbours who would have been ready to support the first usurper that should seize upon the reins of government. In order to render such a condition of real utility to the people, it was necessary to provide for them a new world, out of reach of the interference of the rest of mankind. It is on us, and us only, that the great Ruler of the Universe has bestowed this great and wonderful blessing. To shew our grateful sense of his benificence, we should improve these happy circumstances to our own and the welfare of our posterity. We should set an example of prudence, justice, and generosity, becoming the characters of men who have made the noblest struggle in the cause of freedom.
Having thus finished (though very incorrectly) the intention of this little publication, the author most cheerfully submits it to the consideration and judgment of his fellow citizens.—Abhorring equally the pride of aristocracy and the turbulence of faction, he has endeavoured to pursue the middle road of candid and impartial discussion.—If what he has suggested shall be deemed worthy of the public attention, and shall contribute to promote in the commonwealth the permanent establishment of harmony, freedom, and happiness, he will have attained the important objects of his sanguine wishes.
[* ] Any other day may be appointed, but the earlier the better, as it is in contemplation with some to alter the constitution by legislative authority at the next meeting of the Assembly. Should this practice go on (however good the intention) it is evident that the Constitution can be nothing more than the will of the legislature, always changing without the consent of the people, and perhaps always for the worse: at least this will be the case whenever men of influence in the legislature shall happen to be actuated by motives of ambition and self-interest. Another reason why this is the proper time is, that at future elections we may possibly have many foreigners qualified to vote, who may care very little about a form of government to which they have not been accustomed.