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in the records of the other colony legislatures. But we need not pursue our researches on this point, for the best evidence that can be produced of the deep and universal sense of the value of our natural rights, and of the energy of the principles of the common law, are the memorials of the spirit which pervaded and animated every part of our country, after the peace of 1763, when the same parent power which had nourished and protected us, attempted to abridge our immunities, and retard the progress of our rising greatness.
The House of Burgesses in Virginia took an early and distinguished part, upon the first promulgation of the stamp act, in the assertion of their public rights as free born English subjects. The claim to common law rights, soon became a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies, assembled at New-York, and made and published a declaration of rights, in which they insisted that the people of the colonies were entitled to all the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselyes, and the privilege of trial by jury. The sense of America was, however, more fully ascertained, and more explicitly and solemnly promulgated, in the memorable declaration of rights of the first continental congress, in October, 1774. That declaration contained the assertion of several great and fundamental principles of American liberty, and it constituted the basis of those subsequent bills of rights, which, under various modifications, pervaded all our constitutional charters. It was declared, "that the inhabitants of the English colonies in North America, by the immutable laws of nature, the principles of the English constitution, and their several charters or compacts, were entitled to life, liberty, and property; and
a Jefferson's Notes on Virginia, 189. Marshall's Life of Washington, vol. ii. 88. and Appendix, note No. 4.
b Marshall's Life of Washington, vol. ii. 90. and Appendix, note No. 5.
that they had never ceded to any sovereign power whatever, a right to dispose of either, without their consent; that their ancestors, who first settled the colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects; and by such emigration, they by no means forfeited, surrendered, or lost any of those rights; that the foundation of English liberty, and of all free government, was a right in the people to participate in the legislative power, and that they were entitled to a free and exclusive power of legislation, in all matters of taxation and internal policy, in their several provincial legislatures, where their right of representation could alone be preserved; that the respective colonies were entitled to the common law of England, and more especially to the great and inestima ble privilege of being tried by their peers of the vicinage, according to the course of that law; that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by experience found to be applicable to their several local and other circumstances ;-that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws."a Upon the formation of the several state constitutions, after the colonies had become independent states, it was, in most instances, thought proper to collect, digest, and declare, in a precise and definite manner, and in the shape of abstract propositions and elementary maxims, the most essential articles appertaining to civil liberty and the natural rights of mankind.
The precedent for these declaratory bills of rights was to be found, not only in the colonial annals to which I have alluded, but in the practice of the English nation, who had frequently been obliged to recover by intrepid councils, or by force of arms, and then to proclaim by the most solemn
a Journals of Congress, vol. i. 26. edit. Phil. 1800.
and positive enactments, their indefeasible rights, as a barrier against the tyranny of the executive power. The establishment of magna carta, and its generous provisions for all classes of freemen against the complicated oppressions of the feudal system; the petition of right, early in the reign of Charles I., asserting by statute the rights of the nation as contained in their ancient laws, and especially in "the great charter of the liberties of England ;" and the bill of rights at the revolution, in 1688, are illustrious examples of the intelligence and spirit of the English nation, and they form distinguished eras in their constitutional history. But the necessity in our representative republics of these declaratory codes, has been frequently questioned, inasmuch as the government, in all its parts, is the creature of the people, and every department of it is filled by their agents, duly chosen or appointed, according to their will, and made responsible for mal-administration. It may be observed, on the one hand, that no gross violation of those absolute private rights, which are clearly understood and settled by the common reason of mankind, is to be apprehended in the ordinary course of public affairs; and as to extraordinary instances of faction and turbulence, and the corruption and violence. which they necessarily engender, no parchment checks can be relied on as affording, under such circumstances, any effectual protection to public liberty. When the spirit of li berty has fled, and truth and justice are disregarded, private rights can easily be sacrificed under the forms of law. On the other hand, there is weight due to the consideration, that a bill of rights is of real efficacy in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private right. It requires more than ordinary hardness and audacity of character, to trample down principles, which our ancestors cultivated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the
imposing force and solemnity of a constitutional sanction. Bills of rights are part of the muniments of freemen, showing their title to protection, and they become of increased value when placed under the protection of an independent judiciary, instituted as the appropriate guardian of private right. Care, however, is to be taken in the digest of these declaratory provisions, to confine the manual to a few plain and unexceptionable principles. We weaken greatly the force of them, if we incumber the constitution, and perhaps embarrass the future operations and more enlarged experience of the legislature, with a catalogue of ethical and political aphorisms, which, in some instances, may reasonably be questioned, and in others, justly condemned.a
a The following instances may be mentioned, as illustrations of the questionable nature of some of these declaratory provisions :
Thus, several of the state constitutions, as those of New-Hampshire, Massachusetts, Vermont, North Carolina, Ohio, Indiana, and Illinois, have made it an article in their bill of rights. that the people have a right, not only to apply to the legislature by petition, or remonstrance, but to" instruct their representatives." If, by this, be meant, that they may give to their representatives wholesome advice or information, it is a palpable truth, and quite a harmless article; but if it be intended to declare, that the people of a town, or county, or district, may give binding instructions to their immediate delegates, and to which they must conform without any exercise of their own discretion, in like manner as an agent or attorney in private business is bound by the directions of his principal, it would then render all discussion and deliberation in the legislature useless. This would be repugnant to the theory of government, which supposes that the representatives are to meet and consult together for the common welfare, and to have a regard, in the making of laws, to the greatest general good, and to make the local views and interest of a part of the community, subordinate to the general interest of the whole. The principle of the English common law applicable to the members of the British House of Commons, is deemed to be the true doctrine on this subject. Though chosen by a particular county or borough, the member, when elected and returned, serves for the whole realm. The end of his election is not particular, but general; not barely to advantage his constituents, but for the common weal;
In the revision of the constitution of New-York, in 1821, the declaration of rights was considerably enlarged, and yet the most comprehensive, and the most valuable and
and he is not bound to take and follow the advice of his constituents upon any particular point, unless he thinks it proper or prudent so to do. (4 Inst. 14. 1 Blacks. Com. 159.) The people cannot debate in their collective capacity. They can only deliberate and make laws by their representatives; and in the ordinary course of human affairs, the exercise of their sovereignty, and the means of their safety, will consist in the discreet selection of the rulers, who are to administer the government of their choice.
So, it is declared, in some of the state constitutions, as Maryland, North Carolina, and Tennessee, that "monopolies are contrary to the genius of a free government, and ought not to be allowed." This would seem to restrain the legislature from granting any exclusive privilege even for a limited time, and prevent them from encouraging the introduction and prosecution of hazardous and expensive experiments in some art, science, or business, calculated to be extensively useful. "A temporary monopoly of that kind," says Doctor Adam Smith, (Inquiry into the Wealth of Nations, vol. ii. 272.) “may be vindicated upon the same principles upon which a like monopoly of a new machine is granted to its inventor, and that of a new book to its author." If the principle be correct, that all monopolies are contrary to the genius of a free state, it would condemn the power given to Congress to secure to authors and inventors the exclusive right to their writings and discoveries, and which species of monopoly is deemed to be exceedingly just and useful. Again; it is made an article in the declaration of rights, in the constitution of Illinois, that “there shall be no other banks or moneyed institutions in the state, but those already provided by law, except a state bank and its branches." This is too general and too indefinite a restraint upon the exercise of legislative discretion, and the subject seems scarcely of sufficient importance to have been classed among the "general, great, and essential principles of liberty and free government." In a commercial state, it would lead to the loss of many useful moneyed establishments, or what is more probable, it would be a temptation to efforts to elude the force of the article by evasive constructions. So, the provision in the declaration of rights in the constitution of Mississippi, that "no citizen shall be prevented from emigrating on any pretence whatever," seems to be stated in terms too strong and unqualified, and it would require some latitude of interpretation to prevent the unjust application of the injunction to the case of persons emigrating