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mmon liberty. A common flag floats daily :r us, on which there is Dot one of us who old see a stain rest, and from which there is . one of us who would see a star struck. id we have a common Constitution, to which
oaths of allegiance, which it will be my
persuaded, the formal expression of those
powers which this Constitution confers upon
thing in saying that there have been few periods in our national history, when the eyes of the whole people have been turned more intently and more anxiously towards the Capitol, than they are at this moment, to see what is to be done, here and now, for the vindication and promotion of these lofty ends.
"Let us resolve, then, that those eyes shall at least witness on our part duties discharged with diligence, deliberations conducted with dignity, and efforts honestly and earnestly made for the peace, prosperity, and honor of the Republic.
"I shall esteem it the highest privilege of my public life if I shall be permitted to contribute anything to these results by a faithful and impartial administration of the office which I have now accepted."
The Speaker is not yet forty years of age. He may be presumed to have a lengthened career of usefulness yet before him. We conclude this brief notice with the expression of the hope, that his constituents may long enjoy his services, and open the way for him to higher distinction.
Dear voice! whose murmurs in mine ear,
Why, in this lonely still of night,
Say, what impels my secret soul,
Why, in the dull decline of years,
Return ye thus to steal my rest,
rOL. I. to. III. KKW SERIES. 19
"We, the People of the United State9," says the preamble to the Constitution, "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and to our posterity, do ordain and establish this Constitution for the United States of America.
"All legislative powers herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives."
The object of the Constitution was, then, to establish a government for the whole people. "We, the People," established for ourselves a National government. The States were already established, and maintained a separate existence; but it was necessary that the whole people should be represented, without reference to States; otherwise, there might be an unstable Confederacy, but no Nation—no Union.
A representative government, of which the members have the character of agents for the people, requires that the people be, in some measure, acquainted with the character of their representative agents. It is necessary, for the perfect working of the system, that the voter should be informed, either immediately, or through the general report, of the character of the men for whom he casts his vote. But this end could be attained only by what our author calls "distributive elections;" each district choosing its own representative from among its own citizens. If there were any great names of a reputation extending over the whole Union, they would become the candidates for the higher offices, and might have been elected by a general ticket; but such a course would be impossible for the election of a great crowd of representative agents. Nor would it be a matter of indifference in the result, when the agents of the people
came together in the legislative assemhl whether they were or were not citizens the districts for which they were cho* For the Congress is not merely a oolktion of business agents, assembled abc matters of mere pecuniary interest. Th bear a character of personal and soci as well as of legal substitutes. Not for t people in the abstract, as one man ruu represent them, but the people in deu with all their various interests and feelm; which could only be represented by assemblage of many men, sent from parts of the nation, and bearing with tb the features and disposition of all < parts. These substitutes were to comb in themselves the characters of free n resentatives and voluntary defenders their own particular districts, as well as legislators for the whole. And this ch acter, all good representatives have in riably borne.
It was not, then, merely to gratify Democratic tendency, that the Constirut established distributive elections, bui secure a more perfect and real represor tion. If it were a matter of indiffenv whether members were elected by a g eral ticket, or by distributive elections, tl it were a matter of equal indiffere whether all came from one district, or from every district—and whether number deputed were a thousand, hundred, or only ten. Ten men ti Georgia might be elected on a gem ticket to legislate for the whole In were Congress merely legislators for whole. The Constitution, therefore, in tablishing the present system of electi contemplated not only the superior ft tion of the national legislator, as si but also his inferior and social relation a representative of the interests, opiai and even the passions and prejudice the people from amongst whom he cm Hie reader will observe, in the followar0iiment, which we think a conclusive , that the author has touched very lighton the inferior member of his subject, lrly, on the duties and relations of our vual legislators in their merely reprelatire capacity, but has restricted himto a development of the scientific idea i national legislator, elected, indeed, i district, and yet, under the Constion, free to act and vote for what seems in the good of the whole.—Ed.
* The chapter to which these remarks are introductory, is taken from an unpublished work. Dim Science of the Laws, by H. W. Warner, Eiq.
lEsisan agency government, and thereof the kind denominated free; a govDent, however, that is in theory as ree from pure democracy on the one 3 as from pure monarchy on the other, fathers called it republican; meaning eby to give it not simply a description a name, and for the very purpose of )ing up tliis double discrimination. lis not intended that the people should <<e it themselves; and yet it was in*d to place it under a decisive popular fioeeand control, by having the agents, were to be its managers, appointed by general voice of the country for short is; re-eligible afterwards, indeed, but upon condition of their being still acable to the people, who were to re-apt or dismiss them at pleasure by a new v^>ion of the same general voice. »ill be well if we discriminate as the are did. There is danger that we may The subject is too much declaimed \ to leave the lines of exact truth al• visible. The people are daily told cut reserve, not only that they are reigns, but that their sovereignty is mied and unqualified. This is true in roe sense, but to a legal ear it is < miiv false.
he thing may be looked at in vanlights. In one, the people are above Constitution itself; for they can down the glorious structure if they and either rebuild it afterwards, or it in ruins. This however is not legal reignty. In another view, the people above, not the Constitution, but the inunent organized under it; forasmuch iey are the acknowledged proprietaries be system, the parties in interest, to ro everything belongs, and whose wel'^ to be consulted, and their views of
policy respected, in all measures of administration. But neither is this the kind of sovereignty with which the laws are technically conversant; being a sovereignty of position and estate, rather than of active control; of circumstantial predominance, than of exerted authority.
Let us be more exact. The people's sovereignty under the Constitution is a power in the government as well as over it; a power which the Constitution recognizes and makes use of for its own ends in the established organism of the State, giving it work to do, and in a fixed, unalterable line of action; in short, a strictly functionary power; as much so as the power of the President, or of a Judge of the Supreme Court.
It follows, that this sovereignty, besides being of a qualified nature, is also limited in extent. Nor is the measure of it hard to take; being just what remains, of the whole mass of functionary powers organic to our system, after deducting therefrom the powers devolved upon government agents for the performance of their duties. The result is plain enough. Those devolved powers are all administrative—appertaining to government in the ordinary meaning of the term; that is to say, to the various offices of the legislative, executive, and judicial departments, familiar to every one's knowledge. Such is the subtrahend of our arithmetical problem. What then must the people's remainder be? What but the organizing and visitatorial power of the ballot-box— the electoral sovereignly?
Nor is this sovereignty original in the people. No functionary power can be older than the organism it belongs to. Much is said about the " reserved rights " of the people, and in a connection to show that rights of power are meant. It is a delusion. How could rights of any sort bearing solely on the government, exist before the government itself'? And if they did not pre-exist, how could they be reserved, or kept back, when the government was formed? They necessarily took their date from that period. They were the verycreatures of the Constitution. And it was by the Constitution that they were- first imparted to the popular electors. The right of voting at political elections is truly what it has been called, a franchise—an, emanation of power from the national fountain-head, descending thence upon those who are to exercise it. To talk of a reserved franchise, would be a positive solecism.
Besides, if this electoral sovereignty had been a thing of original right in the people, antecedent to the Constitution, it would belong to every one—man, woman, child —so far at least as there is no want of discretion for the use of it; whereas we do not find it so vested, only a portion— not a third part probably, nor a fourth— of the whole community being legal voters; women and minors having none of it; many adult male citizens having none of it, for lack of the requisite qualifications of residence, property, tax-paying, and the like. How is this? Are these unvoting citizens disfranchised by the Constitution? Is it not more sensible to say, that every franchise being a trust, or at least involving one, the electoral franchise has been given to such only of the people as are deemed fit and competent trustees of so important a power, and qualified to use it with advantage to the republic? Thus, instead of taking away anything from three-fourths of the community, the Constitution simply imparts to the remaining fourth a right of its own creation, which was never theirs before.
And let me add, it does this, not for their sakes in particular, but for the equal good of all without distinction. There is no peculiar value in the privilege of depositing ballots in a box with a hole in it, the act alone considered; nor have they to whom the privilege is not conceded any serious cause of present unhappiness on that account. The only question of interest for them, as for others, is upon the likelihood of results to the country; that is to say, whether the right of suffrage is distributed widely enough among the people, on the one hand, to make the elections duly popular in the spirit of them, and restrained, on the other, to a number sufficiently small and select to make it probable that they will be conducted with reasonable intelligence and prudence, so that upon the whole, the true advantages designed by this part of the constitutional arrangement may be fairly hoped for from its plan of operation.
Of course the liberty that waits upon a
functionary power, can be no larger tht the power is. The people, in their cap city of electors, may do all that is wick the proper scope of the franchise; but is usurpation to do more.
And this enables us to condemn witkn reserve an opinion strangely prevalent some parts of the country, to the eti> that when a man is chosen to an ofik and especially an office of legislation, ii the right of his constituents to have pledg from him as to the measures he will adi cate or oppose in public life; and even come upon him afterwards, during 1: term, with dictatorial instructions on t subject. Nor are the holders of this opi ion so inconsiderable, either in standing ability, as to allow of its being passed oi in silence.
Upon what, then, do they ground tbe selves? The notion seems to be, that election is a delegation of power, and that a pledge exacted from the candid. is but a condition annexed to a free ji in other words, that the electors bein<; i donors of the authority with which t man of their choice becomes thereof endowed, have a natural right to be sen with it in the way they think best.
But here is certainly a misconeeptt The electors confer no power, not a pa. cle. How can they? They have nor* confer. Had they the power themseli they could exercise it. Otherwise would not be power. As then they h. it not, they cannot delegate or pass it a to another. Suppose the elected offi should die suddenly, and a vacancy hi pen; would his power fall back upon electors' hands? No, for again, they co make no use of it. Their right of suffr would indeed revive; another conge dt from the Constitution would put vi into further action as its functionaries appointing a successor. This done, t work is ended till new casualties m new room for it. But suppose, insteai dying, the officer plays truant, and is cu of malversation; can his constituent.trude upon him and amend his doin No; culprit though he be, the office long as he continues in it, is his, not th< When his term is up, to be sure, he i be called by them to a species of acca But even that will not be in the wa jurisdictional review; for they can thing, absolutely nothing, with the funcn he may have abused. They are elect> only. They can touch the man, should
a»k a re-election; they can refuse to at him again; but this is all the penalty :y ian inflict.
If then the officer's power is not given n by his constituents, whence, you will r. does it come? I answer, from the institution; it is laid up there in waiting
him, against the day of his appointin. The electors choose him, designate n, give him their certificate of approval;
■ Constitution does the rest.
A member of the lower House of Con** U chosen, we will suppose, by the ihfied voters of Ontario or Albany, in
■ -State of New York. He is called the msentative of his district. A reprettttive from it would be better language;
though he truly represent his own distt, that is but a fraction of his reprelUtive character, since he stands in just t same relation to every other part of ! country. Is this doubted? How then «he get to be a national legislator? m a handful of local electors make him th—that is, give him a sovereign lawAing power over twenty millions of peo
The duties of the office are as far-reach; a? its sway. However obscurely local appointment may have been, he bents at once a servant of the common»!th ; voting as freely, and under the very Dr obligation to vote wisely and propJ, for a custom-house at Portsmouth or >tile; for a breakwater in the Chesa•ke; for a railroad, it may be, to Oren: as for a mole in Buffalo harbor in ! own State. His trust, like his commiso. is that of a legislator at large for the Bon. Who imposes or reposes that trust? 'ulJ the voice of Albany or Ontario do ** the lawyers say, per le 1 Let not forms deceive us. Let not the <'ms of political declamation deceive us. 'prwentatives in Congress have indeed •'ir several constituencies, to which they » to be indebted for everything. The fiages they receive are all local. The »titudc inspired by these suffrages has <"<'iirse, and very justly, a correspond'i direction. Forms and feelings thus mbine to shut the Constitution out of tw, and to make men forgetful that there
is a very good reason for ordering matters as they are, in this momentous branch of our concerns. The policy of the thing should be considered. Distributive elections must be resorted to in a wide country like ours. We use them, not to alter the character of results, but for convenience sake. It is because the people cannot well act in mass, and fill all the posts of government by a general ticket, so called, that the business has been economically parcelled out among a multitude of territorial districts, each voting for one or more candidates according to the measure of its population, and taking no concern in the election of the rest; the same end being thus secured with ease through the separate action of several hundred communities, which it would be so difficult to reach intelligently and promptly by a combined movement. What better expedient could be hit upon? Organization is the point. The people must have government officers. How best t6 choose them is the question. Two modes offer:—a general ticket for the whole land, or a host of tickets in detail for all the parts of it. Were the general-ticket scheme adopted, and the entire body of the people put to vote for every officer in the list, one consequence must follow,—the successful candidates would be admitted on all hands to be national agents, national representatives; and the absurdity of their being any of them servants of particular districts in special, and liable to dictation from particular groups of electors, would have no advocates. I take this for granted. But it seems the other mode has been preferred, and so the public service is to be provided for by the self-same people, acting not in mass, but in a vast number of subdivisions. No change of object. National officers are still the thing wanted. And they are wanted for the identical places and functions as before. What difference then in nationality of results? The people act in separate companies, but they all act, and with a common purpose,—namely, to officer the government. In one respect they may be held, in fair construction, to be all active in every part of the work. The arrangement is theirs by which the forms of the proceeding have been adjusted; being the arrangement of the Constitution itself.