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feared is that it may be allowed to be conducted in a wrong way, and upon false principles ; and this evil principle may creep into a special charter more readily than into a general law. If you can shut it out from a special charter in opposition to the selfish interests of the corporators, how much more easily can you not exclude it from a general law? It you allow banking, let it be free, control it by general laws, and thus affirm that what is good and proper for one man or set of men is good and proper for all. But it is objected that there will be an excess of banking. That will correct itself, as does all overdoing of trade and business. In the long run, so much will be done as shall be expedient, and no more, if the general law be wisely framed and properly guarded. *
If the principle of general legislation should be adopted in this country, we should be struck with its purifying influences; the effect would be instantaneous in annihilating “ the lobby,” or “third house,” that embodiment of selfishness and gross corruption. The halls of legislation would be cleansed, and the representatives of the people would breathe a purer and a freer atmosphere. All “ log-rolling," as it is termed, I would cease. There would be no bargaining between the members of the legislature, as thus—“Do you vote for my bill, and I will vote for yours”—
-no one would have a bill of his own to care for. The whole people would be concerned in every legislative act, and the laws would assume their native purity and majesty.
General legislation requires higher intellectual and moral powers in the representatives of the people. A man of very
* The Westminster Review for January, 1841, contains a very able examination of Currency and Banking, in which the free principle is strongly advocated, and which concludes as follows:
"To establish free-trade in banking in London, would require the sanction of the legislature; but it may be questioned whether the nation has yet undergone a sufficient quantity of suffering to induce our statesmen to adopt so simple a remedy. To this, however, they will come at last. Wisdom,' says Mr. Loyd, 'is best learned in the school of adversity. When a few more theories have been tried-a few more ‘pressures' have been experienced a few millions more of opulent families have been reduced to beggary, and our union work-houses are thronged with starving artisans--then we may discover that all our attempts to regulate the currency have been productive of mischief, and we shall be willing to let the currency regulate itself.".
limited capacity may present and carry forward a law promotive of local or partial interests; but just and enlightened legislation requires the highest endowments of talent and virtue. The legislator properly represents the State, the whole people—nay, humanity itself. He is the guardian of human rights, not the promoter of selfish interests. He should be moved from within, not from without; and if he considered only the justice of general laws, he would act under the impulses of his enlightened sentiments alone. No bribe would tempt his integrity, and his only reward would be the reward of virtue. What dignity, what moral grandeur in his work! He toils now for humanity. Not for particular men, but for mankind he labors ; not for the present, but for all time he rears the structure of human government, and adorns the temple of justice. He becomes the student of Nature, and reverences her laws. He proclaims the Rights of Man, asserts their sacred inviolability, and keeps the high course of humanity free from obstruction. He is the friend of all Rights, and the foe of all Privileges.
There is a moral necessity for the adoption of this principle of general legislation. A republic cannot long endure without it. Public virtue will perish in the halls of special legislation. The laws must cease to confer privilege, and become the bulwark of human rights. They must be directed to the restraint of vice, and not to the restraint of business. All laws which have not natural morality for their foundation are the tricks of ambition or avarice, to defraud mankind.
The Sovereign of the Universe has legislated for man ; has stamped His laws upon his moral constitution ; and, thus provided, man enters the social state, to pursue happiness in obedience to the laws of his organization, needing nothing from human legislation but the protection of his natural Rights.
OF THE CONSTITUTION OF GOVERNMENT. The power of Government must reside somewhere, since we have seen that there is a clear moral necessity for its exercise. A few men in society are violently at war with the rights of others; and a larger class of men, when under occasional excitement of passion or interest, are tempted to in
ringe upon the rights of mankind. Nevertheless, almost all civilized men are capable of appreciating the rules of right, and when free from this occasional excitement are competent to decide upon rules and regulations for the government of men in the social state. The enactment and execution of these rules constitute the functions of Civil Government. Where, then, does this power primarily reside? I answer, that it pertains to those persons who are interested in its exercise, whose rights are the objects of its protection, and who possess the requisite moral endowment and intelligence to ordain and execute the law of right, or, in other words, the qualified citizens. The American Constitutions uniformly declare that the people are the source of all political power. To them, in their collective or corporate capacity, pertains the office of government, and the direct and immediate exercise of its moral force. It is both their right and duty to discharge this high moral function in their primary assemblies wherever it is practicable; and when they seem to relinquish the power of governing, by delegating to State Officers the exercise of certain public functions, they do not renounce their sovereignty, but are still masters of the State, retiring from the direct and immediate control of its affairs from motives of convenience only.
Wherever the people retain the power of Government for their direct and immediate exercise, there is no necessity for a written Constitution. Their aggregate intelligence and moral sense furnish their rule of action. But the power thus wielded is that of a pure Democracy, which must, for convenience, be confined to a small territory, such as that of a village or country town, where all the inhabitants are capable of assembling together as often as the exercise of a public function is required. But where a large territory presents an obstacle to this assembling of the people, the functions of pure Democracy cease, and the people delegate to their representatives such of the powers of Government as they cannot conveniently discharge in person.* They appoint agents like other principals—and prudence dictates that they should be rendered as secure as possible from the malconduct of their subordinates. Hence there at once arises the necessity for a written Constitution. The power of government, which is inherent in the people, is now to be imparted to their agents; and because the people ought to retain whatever power they can directly exercise, and ought in no instance to substitute an agent where they can act themselves ; and because they ought, in every case, to have the appointment of their agents by a prescribed mode, which is not susceptible of doubt or denial; and because the tenure of office, and the responsibility of its incumbents, ought to be regulated by a fundamental law; and because the functions of government are diverse in their character and ought to be distributed among different officers, such as Executive, Legislative and Judicial, to the end “that the Government may be one of laws and not of men ;” and because, for the safety of the people and the security of rights, the powers delegated to representatives ought to be limited and defined, so that the agent may know his office and the principal be secure from his misdeeds; and because it is possible that men m office may grow fond of power and abuse it—that the Judge may attempt to legislate, that the legislator may over do his work, that the ministerial officer may attempt to judge and legislate, and that delegates and agents may subserve their private ends while in the employment of their masters; and because the legislative power of a State, when committed to delegates, ought not to be omnipotent, but limited and defined by such provisions and exceptions conservative of rights and liberty as wise men know to be salutary restraints upon legislative power; therefore, it is indispensably necessary that the people should delegate the powers of Government by a written Constitution-containing the grant, distribution and limitation of the various public functions, with such safe-guards as their experience from time to time may suggest.
* See Bancroft's History of the U. S., vol. I., p. 348:-“The frame of civil government in the old (Plymouth) Colony, was of the utmost simplicity. A Governor was chosen by general suffrage; whose power, always subordinate to the general will, was, at the desire of Bradford, specially restricted by afterwards of seven Assistants. In the Council the Governor had but a double vote. For more than eighteen years the whole body of the male inhabitants constituted the Legislature; the State was governed like our towns, as a strict Democracy: and the people were frequently convened to decide on Executive not less than on Judicial questions. At length the increase of population and its diffusion over a wide territory, led to the introduction of the representative system, and each town sent its committee to the General Court.",
Council of five, and
This, then, is the office of a written Constitution—to delegate to various public functionaries such of the powers of Government as the people do not intend to exercise themselves—to classify these powers according to their nature, and to commit them to separate agents—to provide for the choice of these agents by the people—to ascertain, limit and define the extent of the authority thus delegated—and to reserve to the people their sovereignty over all things not expressly committed to the care of their representatives.
But after such a Constitution shall be adopted by a people, they retain the supreme power of the State. The relation created between them and their representatives is that of principal and agent; and the former still exists, although the latter may appear to be invested with full powers of sovereignty; and the people, in virtue of that sovereignty which is inherent in them, and of which they are incapable of being divested, either by consent or by force, may revoke the power which they have conferred upon their delegates, and, by the substitution of a different Constitution may create new agents, clothe them with other powers, and place them in new and different relations to their principals. The supreme power of State, therefore, always resides in the