A Collection of Essays and Fugitiv Writings / On Moral, Historical, Political, and Literary Subjects

by Noah Webster

But the principle is false. The Congress, under the proposed constitution, will have the same interest as the people; they are a part of the people; their interest is inseparable from that of the people; and this union of interest will eternally remain, while the right of election shall continue in the people. Over this right Congress will have no control: The time and manner of exercising that right are very wisely vested in Congress; otherwise a delinquent State might embarrass the measures of the Union. The safety of the public requires that the federal body should prevent any particular delinquency; but the right of election is above their control; it must remain in the people, and be exercised once in two, four or six years. A body thus organized, with thirteen Legislatures watching their measures, and several millions of jealous eyes inspecting their conduct, would not be apt to betray their constituents. Yet this is not the best ground of safety. The first and almost only principle that governs men, is interest. Love of our country is a powerful auxiliary motiv to patriotic actions; but rarely or never operates against private interest. The only requisit to secure liberty, is to connect the interest of the governors with that of the governed. Blend these interests; make them inseparable, and both are safe from voluntary invasion. How shall this union be formed? This question is answered. The union is formed by the equal principles on which the people of these States hold their property and their rights. But how shall this union of interests be perpetuated? The answer is easy; bar all perpetuities of estates; prevent any exclusiv rights; preserve all preferment dependent on the choice of the people; suffer no power to exist independent of the people or their representativs. While there exists no power in a State, which is independent of the will of the electors, the rights of the people are secure. The only barrier against tyranny, that is necessary in any State, is the election of legislators by the yeomanry of that State. Preserve that, and every privilege is safe. The legislators thus chosen to represent the people, should have all the power that the people would have, were they assembled in one body to deliberate upon public measures. The distinction between the powers of the people and of their representativs in the Legislature, is as absurd in theory, as it proves pernicious in practice. A distinction, which has already countenanced and supported one rebellion in America; has prevented many good measures; has produced many bad; has created animosities in many States, and embarrassments in all.[43] It has taught the people a lesson, which, if they continue to practise, will bring laws into contempt, and frequently mark our country with blood.

You object, gentlemen, to the powers vested in Congress. Permit me, to ask you, where will you limit their powers? What bounds will you prescribe? You will reply—we will reserve certain rights, which we deem invaluable, and restrain our rulers from abridging them. But, gentlemen, let me ask you, how will you define these rights? would you say, the liberty of the press shall not be restrained? Well, what is this liberty of the press? Is it an unlimited licence to publish any thing and every thing with impunity? If so, the author and printer of any treatise, however obscene and blasphemous, will be screened from punishment. You know, gentlemen, that there are books extant, so shockingly and infamously obscene and so daringly blasphemous, that no society on earth would be vindicable in suffering the publishers to pass unpunished. You certainly know that such cases have happened, and may happen again: Nay, you know that they are probable. Would not that indefinite expression, the liberty of the press, extend to the justification of every possible publication? Yes, gentlemen, you know, that under such a general license, a man who should publish a treatise to prove his Maker a knave, must be screened from legal punishment. I shudder at the thought! But the truth must not be concealed. The constitutions of several States guarantee that very license.

But if you attempt to define the liberty of the press, and ascertain what cases shall fall within that privilege, during the course of centuries, where will you begin? Or rather, where will you end? Here, gentlemen, you will be puzzled. Some publications certainly may be a breach of civil law: You will not have the effrontery to deny a truth so obvious and intuitivly evident. Admit that principle; and unless you can define precisely the cases, which are, and are not a breach of law, you have no right to say, the liberty of the press shall not be restrained; for such a license would warrant any breach of law. Rather than hazard such an abuse of privilege, is it not better to leave the right altogether with your rulers and your posterity? No attempts have ever been made by a legislativ body in America, to abridge that privilege; and in this free enlightened country, no attempts could succeed, unless the public should be convinced that an abuse of it would warrant the restriction. Should this ever be the case, you have no right to say, that a future Legislature, or that posterity shall not abridge the privilege, or punish its abuses.

But you say, that trial by jury is an unalienable right, that ought not to be trusted with our rulers. Why not? If it is such a darling privilege, will not Congress be as fond of it, as their constituents? An elevation into that council, does not render a man insensible to his privileges, nor place him beyond the necessity of securing them. A member of Congress is liable to all the operations of law, except during his attendance on public business; and should he consent to a law, annihilating any right whatever, he deprives himself, his family and estate, of the benefit resulting from that right, as well as his constituents. This circumstance alone, is a sufficient security.

But, why this outcry about juries? If the people esteem them so highly, why do they ever neglect them, and suffer the trial by them to go into disuse? In some States, Courts of Admiralty have no juries, nor Courts of Chancery at all. In the City Courts of some States, juries are rarely or never called, altho the parties may demand them; and one State, at least, has lately passed an act, empowering the parties to submit both law and fact to the court. It is found, that the judgment of a court gives as much satisfaction, as the verdict of a jury; for the court are as good judges of fact, as juries, and much better judges of law. I have no desire to abolish trials by jury, altho the original design and excellence of them, is in many cases superseded. While the people remain attached to this mode of deciding causes, I am confident, that no Congress can wrest the privilege from them.

But, gentlemen, our legal proceedings want a reform. Involved in all the mazes of perplexity, which the chicanery of lawyers could invent, in the course of five hundred years, our road to justice and redressis tedious, fatiguing and expensiv. Our judicial proceedings are capable of being simplified, and improved in almost every particular. For mercy's sake, gentlemen, do not shut the door against improvement. If the people of America, should ever spurn the shackles of opinion, and venture to leave the road, which is so overgrown with briers and thorns, as to strip a man's clothes from his back as he passes, I am certain they can devise a more easy, safe, and expeditious mode of administering the laws, than that which harasses every poor mortal, that is wretched enough to want legal justice. In States where very respectable merchants, have repeatedly told me, they had rather lose a debt of fifty pounds, than attempt to recover it by a legal process, one would think that men, who value liberty and property, would not restrain any government from suggesting a remedy for such disorders.

Another right, which you would place beyond the reach of Congress, is the writ of habeas corpus. Will you say that this right may not be suspended in any case? You dare not. If it may be suspended in any case, and the Congress are to judge of the necessity, what security have you in a declaration in its favor? You had much better say nothing upon the subject.

But you are frightened at a standing army. I beg you, gentlemen, to define a standing army. If you would refuse to giv Congress power to raise troops, to guard our frontiers, and garrison forts, or in short, to enlist men for any purpose, then we understand you; you tie the hands of your rulers, so that they cannot defend you against any invasion. This is protection, indeed! But if Congress can raise a body of troops for a year, they can raise them for a hundred years, and your declaration against standing armies can have no other effect, than to prevent Congress from denominating their troops, a standing army. You would only introduce into this country the English farce of mechanically passing an annual bill for the support of troops which are never disbanded.

You object to the indefinite power of taxation in Congress. You must then limit the exercise of that power by the sums of money to be raised; or leaving the sums indefinite, must prescribe the particular mode in which, and the articles on which the money is to be raised. But the sums cannot be ascertained, because the necessities of the States cannot be foreseen nor defined. It is beyond even your wisdom and profound knowlege, gentlemen, to ascertain the public exigencies, and reduce them to the provisions of a constitution. And if you would prescribe the mode of raising money, you will meet with equal difficulty. The different States have different modes of taxation, and I question much whether even your skill, gentlemen, could invent a uniform system that would fit easy upon every State. It must therefore be left to experiment, with a power that can correct the errors of a system, and suit it to the habits of the people. And if no uniform mode will answer this purpose, it will be in the power of Congress to lay taxes in each State, according to its particular practice.

You know that requisitions on the States are ineffectual; that they cannot be rendered effectual, but by a compulsory power in Congress; that without an efficient power to raise money, government cannot secure person, property or justice; that such power is as safely lodged in your Representativs in Congress, as it is in your Representativs in your distinct Legislatures.