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Marchamont Nedham lays it down as a fundamental principle and an undeniable rule, “That the people, (that is, such as shall be successively chosen to represent the people,) are the best keepers of their own liberties, and that for many reasons. First, because they never think of usurping over other men’s rights, but mind which way to preserve their own.”
Our first attention should be turned to the proposition itself,—”The people are the best keepers of their own liberties.”
But who are the people?
“Such as shall be successively chosen to represent them.”
Here is a confusion both of words and ideas, which, though it may pass with the generality of readers in a fugitive pamphlet, or with a majority of auditors in a popular harangue, ought, for that very reason, to be as carefully avoided in politics as it is in philosophy or mathematics. If by the people is meant the whole body of a great nation, it should never be forgotten, that they can never act, consult, or reason together, because they cannot march five hundred miles, nor spare the time, nor find a space to meet; and, therefore, the proposition, that they are the best keepers of their own liberties, is not true. They are the worst conceivable; they are no keepers at all. They can neither act, judge, think or will, as a body politic or corporation. If by the people is meant all the inhabitants of a single city, they are not in a general assembly, at all times, the best keepers of their own liberties, nor perhaps at any time, unless you separate from them the executive and judicial power, and temper their authority in legislation with the maturer counsels of the one and the few. If it is meant by the people, as our author explains himself, a representative assembly, “such as shall be successively chosen to represent the people,” still they are not the best keepers of the people’s liberties or their own, if you give them all the power, legislative, executive, and judicial. They would invade the liberties of the people, at least the majority of them would invade the liberties of the minority, sooner and oftener than an absolute monarchy, such as that of France, Spain, or Russia, or than a well-checked aristocracy, like Venice, Bern, or Holland.
An excellent writer has said, somewhat incautiously, that “a people will never oppress themselves, or invade their own rights.” This compliment, if applied to human nature, or to mankind, or to any nation or people in being or in memory, is more than has been merited. If it should be admitted that a people will not unanimously agree to oppress themselves, it is as much as is ever, and more than is always, true. All kinds of experience show, that great numbers of individuals do oppress great numbers of other individuals; that parties often, if not always, oppress other parties, and majorities almost universally minorities. All that this observation can mean then, consistently with any color of fact, is, that the people will never unanimously agree to oppress themselves. But if one party agrees to oppress another, or the majority the minority, the people still oppress themselves, for one part of them oppress another.
“The people never think of usurping over other men’s rights.”
What can this mean? Does it mean that the people never unanimously think of usurping over other men’s rights? This would be trifling; for there would, by the supposition, be no other men’s rights to usurp. But if the people never, jointly nor severally, think of usurping the rights of others, what occasion can there be for any government at all? Are there no robberies, burglaries, murders, adulteries, thefts, nor cheats? Is not every crime a usurpation over other men’s rights? Is not a great part, I will not say the greatest part, of men detected every day in some disposition or other, stronger or weaker, more or less, to usurp over other men’s rights? There are some few, indeed, whose whole lives and conversations show that, in every thought, word, and action, they conscientiously respect the rights of others. There is a larger body still, who, in the general tenor of their thoughts and actions, discover similar principles and feelings, yet frequently err. If we should extend our candor so far as to own, that the majority of men are generally under the dominion of benevolence and good intentions, yet, it must be confessed, that a vast majority frequently transgress; and, what is more directly to the point, not only a majority, but almost all, confine their benevolence to their families, relations, personal friends, parish, village, city, county, province, and that very few, indeed, extend it impartially to the whole community. Now, grant but this truth, and the question is decided. If a majority are capable of preferring their own private interest, or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the constitution, in favor of justice, to compel all to respect the common right, the public good, the universal law, in preference to all private and partial considerations.
The proposition of our author, then, should be reversed, and it should have been said, that they mind so much their own, that they never think enough of others.
We concur also most sincerely in our author’s conclusion, in part, namely,——That since kings and all standing powers are so inclinable to act according to their own wills and interests, in making, expounding, and executing of laws, to the prejudice of the people’s liberty and security, no laws whatsoever should be made but by the people’s consent, as the only means to prevent arbitrariness.” But we must carry the conclusion farther, namely,—that since all men are so inclinable to act according to their own wills and interests, in making, expounding, and executing laws, to the prejudice of the people’s liberty and security, the sovereign authority, the legislative, executive, and judicial power, can never be safely lodged in one assembly, though chosen annually by the people; because the majority and their leaders, the principes populi, will as certainly oppress the minority, and make, expound, and execute laws for their own wealth, power, grandeur, and glory, to the prejudice of the liberty and security of the minority, as hereditary kings or standing senates.
The conclusion, therefore, that “the people, in a succession of their supreme single assemblies, are the best keepers of their liberties,” must be wholly reprobated.
It is indeed a “most excellent maxim, that the original and fountain of all just power and government is in the people;” and if ever this maxim was fully demonstrated and exemplified among men, it was in the late American Revolution, where thirteen governments were taken down from the foundation, and new ones elected wholly by the people, as an architect would pull down an old building and erect a new one. There will be no dispute, then, with Cicero, when he says, “A mind well instructed by the light of nature, will pay obedience,” willingly “to none but such as command, direct, or govern for its good or benefit;” nor will our author’s inferences from these passages from that oracle of human wisdom be denied:
“1. That by the light of nature people are taught to be their own carvers and contrivers in the framing of that government under which they mean to live.
“2. That none are to preside in government, or sit at the helm, but such as shall be judged fit, and chosen by the people.
“3. That the people are the only proper judges of the convenience or inconvenience of a government when it is erected, and of the behavior of governors after they are chosen.”
But then it is insisted, that rational and regular means shall be used that the whole people may be their own carvers, that they may judge and choose who shall preside, and that they may determine on the convenience or inconvenience of government, and the behavior of governors. But then it is insisted, that the town of Berwick upon Tweed shall not carve, judge, choose, and determine for the whole kingdom of Great Britain, nor the county of Berkshire for the Massachusetts; much less that a lawless tyrannical rabble shall do all this for the state, or even for the county of Berkshire.
It may be, and is admitted, that a free government is most natural, and only suitable to the reason of mankind; but it by no means follows “that the other forms, as of a standing power in the hands of a particular person, as a king; or of a set number of great ones, as in a senate,” much less that a mixture of the three simple forms “are beside the dictates of nature, and mere artificial devices of great men, squared out only to serve the ends and interests of avarice, pride, and ambition of a few, to a vassalizing of the community.” If the original and fountain of all power and government is in the people, as undoubtedly it is, the people have as clear a right to erect a simple monarchy, aristocracy, or democracy, or an equal mixture, or any other mixture of all three, if they judge it for their liberty, happiness, and prosperity, as they have to erect a democracy; and infinitely greater and better men than Marchamont Nedham, and the wisest nations that ever lived, have preferred such mixtures, and even with such standing powers as ingredients in their compositions. But even those nations who choose to reserve in their own hands the periodical choice of the first magistrate, senate, and assembly, at certain stated periods, have as clear a right to appoint a first magistrate for life as for years, and for perpetuity in his descendants as for life.
When I say for perpetuity or for life, it is always meant to imply, that the same people have at all times a right to interpose, and to depose for maladministration—to appoint anew. No appointment of a king or senate, or any standing power, can be, in the nature of things, for a longer period than quam diu se bene gesserit, the whole nation being judge. An appointment for life or perpetuity can be no more than an appointment until further order; but further order can only be given by the nation.