The Southern Literary Messenger, Vol. I., No. 4, December, 1834

by Various

But may not we, the sovereign citizens of these states, abuse power too? When men are numerous and "strong enough to set their duties at defiance, do they cease to be duties any longer?" Does that which would be unjust as the act of ninety-nine, become just, as being the act of an hundred? Is it in the power of numbers to alter the nature of things, and to justify oppression, though it should fall on the head of only one victim? It would be easy to point to instances in which we all believe that majorities have done great wrong; and that under such wrongs we have suffered and are still suffering we all know. But where is the check on such abuse of power? Constitutional authority and physical force are both on the same side, and if the wisdom and justice of those who wield both does not freely afford redress, there arc no means of enforcing it. "There is no sanction to any contract against the will of prevalent power."

The justice of these ideas is recognized in the forms of all our governments. The limitations on the powers of congress and the state legislatures, are all predicated on the certain truth "that majorities may find or imagine an interest in doing wrong." Hence there are many things which cannot be lawfully done by a bare majority; and many more, which no majority, however great, is authorised to do. Two-thirds of the senate must concur in a sentence of impeachment. The life and property of an individual cannot be taken away but by the unanimous voice of his triers; and all the branches of all our governments collectively cannot lawfully enact a bill of attainder, or an ex post facto statute.

But though such acts are forbidden by the constitution, they may nevertheless be passed, and judges may be found to enforce them, if those holding legislative and judicial offices shall be so minded. The constituents, too, of a majority of the legislature may approve and demand such acts. Where then is the security that such things will not be done? Where can it be but in the enlightened sense of justice and right in the constituent body?

I am not sure that such restraints on the powers of public functionaries are not even more necessary in a republican government than in any other. A king can scarcely have a personal interest in ruining one portion of his dominions for the benefit of the rest, and he would not dare to ruin the whole, while a spark of intelligence and spirit remained among the people. But in a republic, whenever the inclination and the power to do such a wrong concur, the very nature of the case secures the rulers from all fear of personal consequences. The majority is with them. Their own constituents are with them. To these is their first duty; and shall they hesitate to do that which is to benefit their constituents, out of tenderness to those who are not their constituents? We know how such questions are answered, when the occasion is one where a fixed majority have a fixed interest in the proposed wrong. Is not this the reason why legislative encroachment so much disposes men to acquiesce in executive usurpation? Is it not this, which, when the barriers of constitutional restraint are seen to fall, drives minorities, as by a sort of fatal instinct, to seek shelter under the arm of a common master, from the all pervading tyranny of majorities exercising the power of universal legislation? The wrongs of America were the act of the parliament of England, goaded on by the people. It was they who claimed a right to legislate in all things for the colonies. It was they who demanded a revenue from America; and the colonies, eagerly looking to the crown for protection, maintained an unshaken loyalty, until the king was seen to take part with their oppressors. The wrongs of Ireland are the act of the people of England. Ireland is the rival of England in agriculture, manufactures and commerce; and every concession to the former, seems to the multitude to be something taken from the prosperity of the latter. But the representation of Ireland in parliament is to that of England as one to five; and when the Irish people cry to parliament for redress, they are answered as all appeals from minorities are answered by the representatives of majorities. But how would they be answered if the representative and constituent bodies were both thoroughly instructed in the sacred character and paramount authority and importance of the duties which belong to the high function of sovereignty? We justly deny and deride the divine right of kings; and we assert and maintain the divine right of the people to self government. And it is a divine right. It is a corollary from the right and duty to fulfil the purposes of our being, which accompany each one of us into the world. The right and the duty both come from the author of that being. He imposes the one when he gives the other, and thus fixes on us a responsibility which clings to us through life. We deceive ourselves if we think to get rid of any portion of this responsibility by entering into partnership with others, each one of whom brings into the concern the same rights, the same duties, and the same responsibilities;—neither more nor less than ourselves. We do but multiply, and divide again by the same number. Each receives, by way of dividend, the same amount of right, duty, and responsibility that he carried into the common stock. Of so high a nature are these, and so vast are the interests with which they are connected, that it has been truly said, that, whether we mount the hustings or go to the polls, we may well tremble to give or to receive the power which is there conferred.

Gentlemen; if these ideas be just, how important is the duty imposed on me by that statute of the college which requires me to lecture on constitutional law! How desirable is it that there should be every where schools, in which the youth of our country should be thoroughly imbued with correct opinions and just sentiments on this subject! It was Agesilaus, I think, who said that "the business of education was to prepare the boy for the duties of the man." How pre-eminently important, then, must be that branch of education which is to qualify him to perform this highest of all social duties, and to bear worthily his part in that relation which has been characterized as "a partnership in all science, in all art, in every virtue, and in all perfection; a partnership, not only between those who are living, but between those who are living, those who are dead, and those who are yet to be born."

These striking words, which are from the pen of the celebrated Edmund Burke, call to mind the high testimony which he has borne in favor of the study of the law, as a school of political rights. After having acted an important part in procuring the repeal of the stamp act, he made his last effort in favor of the rights of the colonies, in March, 1775. On that occasion, laboring to dissuade the British parliament from pushing America to extremities, he descanted on the love of freedom, which he pronounced to be the predominating feature in the character of our fathers. The prevalence of this passion he ascribed to a variety of causes, none more powerful than the number of lawyers, and the familiarity of the people with the principles of the common law. His ideas I will give you in his own words, for it is only in his own words that his ideas ever can be fittingly expressed.

He says, "In no country perhaps in the world is the law so general a study. The profession itself is numerous and powerful; and in most provinces it takes the lead. The greater number of the deputies sent to the congress were lawyers. But all who read, and most do read, endeavor to obtain some smattering in that science.... This study renders men acute, inquisitive, dexterous, prompt in attack, ready in defence, full of resources. In other countries, the people, more simple, and of a less mercurial cast, judge of an ill principle in government only by an actual grievance; here they anticipate the evil, and judge of the pressure of the grievance by the badness of the principle. They augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze."

Such, young gentlemen, is the important and useful influence which the study of our profession enables its members to exert. But if, instead of preparing their minds by this study, the very men to whom the people look up for light, do but provide themselves with a few set phrases contrived to flatter and cajole them, what but evil can come of it?

"The people can do no wrong." Why! this if but what all sovereigns hear from their flatterers. In one sense, it is indeed true of both, for there is no human tribunal before which either king or people can be arraigned. But neither can make right and wrong change places and natures.

"Vox populi, vox Dei." "It is the voice of God." So said the Jews of the impious Herod. But the judgments of the insulted Deity showed how mere a worm he was; and his judgments are not limited to kings, nor withheld by numbers. We may preserve all the outward forms of freedom, the checks and balances of the constitution may remain to all appearance undisturbed, and yet he who can "curse our blessings" may give us over to all the evils of despotism, if we do not "lay to heart" the high duties of that freedom wherewith he has made us free.