To The Public (Iredell)
TO THE PUBLIC
As the question concerning the power of the Assembly deeply concerns every man in the State, I shall make no apology for delivering my sentiments upon it. They are indeed only the sentiments of an obscure elector, but one who, he trusts, has rights that he as much values, though with less ability to defend them, as the proudest member of Assembly whatever.
I have not lived so short a time in the State, nor with so little interest in its concerns, as to forget the extreme anxiety with which all of us were agitated in forming the constitution, a constitution which we considered as the fundamental basis of our government, unalterable, but by the same high power which established it, and therefore to be deliberated on with the greatest caution, because if it contained any evil principle, the government formed under it must be annihilated before the evil could be corrected. It was, of course, to be considered how to impose restrictions on the legislature, that might still leave it free to all useful purposes, but at the same time guard against the abuse of unlimited power, which was not to be trusted, without the most imminent danger, to any man or body of men on earth. We had not only been sickened and disgusted for years with the high and almost impious language from Great Britain, of the omnipotent power of the British Parliament, but had severely smarted under its effects. We felt in all its rigor the mischiefs of an absolute and unbounded authority, claimed by so weak a creature as man, and should have been guilty of the basest breach of trust, as well as the grossest folly, if in the same moment when we spurned at the insolent despotism of Great Britain, we had established a despotic power among ourselves. Theories were nothing to us, opposed to our own severe experience. We were not ignorant of the theory of the necessity of the legislature being absolute in all cases, because it was the great ground of the British pretensions. But this was a mere speculative principle, which men at ease and leisure thought proper to assume. When we were at liberty to form a government as we thought best, without regard to that or any theoretical principle we did not approve of, we decisively gave our sentiments against it, being willing to run all the risks of a government to be conducted on the principles then laid as the basis of it. The instance was new in the annals of mankind. No people had ever before deliberately met for so great a purpose. Other governments have been established by chance, caprice, or mere brutal force. Ours, thank God, sprang from the deliberate voice of the people. We provided, or meant to provide (God grant our purpose may not be defeated), for the security of every individual, as well as a fluctuating majority of the people. We knew the value of liberty too well, to suffer it to depend on the capricious voice of popular favor, easily led astray by designing men, and courted for insidious purposes. Nor could we regard, without contempt, a theory which required a greater authority in man than (with reverence be it spoken) exists even in the Supreme Being. For His power is not altogether absolute--His infinite power is limited by His infinite wisdom.
I have therefore no doubt, but that the power of the Assembly is limited and defined by the constitution. It is a creature of _the constitution. (I hope this is an expression not prosecutable.) The people have chosen to be governed under such and such principles. They have not chosen to be governed, or promised to submit upon any other; and the Assembly have no more right to obedience on other terms, than any different power on earth has a right to govern us; for we have as much agreed to be governed by the Turkish Divan as by our own General Assembly, otherwise than on the express terms prescribed.
These are consequences that seem so natural, and indeed so irresistible, that I do not observe they have been much contested. The great argument is, that though the Assembly have not a right to violate the constitution, yet if they in fact do so, the only remedy is, either by a humble petition that the law may be repealed, or a universal resistance of the people, But that in the mean time, their act, whatever it is, is to be obeyed as a law; for the judicial power is not to presume to question the power of an act of Assembly.
To these positions, not unconfidently urged, I answer:
1. That the remedy by petition implies a supposition, that the electors hold their rights by the favor of their representatives, The mere stating of this is surely sufficient to excite any man's indignation. What! if the Assembly say, we shall elect only once in two years, instead of electing annually, are we to petition them to repeal this law? to request that they will be graciously pleased not to be our tyrants, but to allow us the benefit of the government we ourselves have chosen, and under which they alone derive all their authority?
But 2. The whole people may resist. A dreadful expedient indeed. We well know how difficult it is to excite the resistance of a whole people, and what a calamitous contingency, at best, this is to be reduced to. But it is a sufficient answer, that nothing can be powerful enough to effect such a purpose in a government like ours, but universal oppression. A thousand injuries may be suffered, and many hundreds ruined, before this can be brought about. A majority may see A. B., C. D., and E. F., and hundreds of others quietly injured one after another, and not stir a step towards a civil war. Let any man then ask himself, Suppose a law is passed by which I am ruined! Have I interest enough to overturn the government of my country? If I have, we still may be a ruined people, and myself ruined among the rest. If I have not, upon what footing do my liberties depend? The pleasure of a majority of the Assembly? God forbid! How many things have been done by majorities of a large body in heat and passion, that they themselves afterwards have repented of! Besides, would the minority choose to put themselves in the power of a majority? Few men, I presume, are always in a majority. None, therefore, could have even a chance of being secure, but sycophants that will for ever sacrifice reason, conscience, and duty, to the preservation of a temporary popular favor. Will this not put an end to all freedom of deliberation, to all manly spirit, and prove the utter extinction of all real liberty?
But this resource is evidently derived from the principle of unbounded legislative power, that I have noticed before, and that our constitution reprobates. In England they are in this condition. In England, therefore, they are less free than we are. Every parliament in that country chosen for three years, continued itself for seven. This is an absolute fact, that happened long within the present century. Would this be a fit precedent for us? May our Assembly do so, because their Parliament did? May our governor have a negative on the laws, because he has a faint image of monarchical power? As little, I trust, is the government of Great Britain to influence in other things, equally inconsistent with our condition, and equally preposterous as these.
These two remedies then being rejected, it remains to be inquired whether the judicial power hath any authority to interfere in such a case. The duty of that power, I conceive, in all cases, is to decide according to the laws of the State. It will not be denied, I suppose, that the constitution is a law of the State, as well as an act of Assembly, with this difference only, that it is the fundamental law, and unalterable by the legislature, which derives all its power from it. One act of Assembly may repeal another act of Assembly. For this reason, the latter act is to be obeyed, and not the former. An act of Assembly cannot repeal the constitution, or any part of it. For that reason, an act of Assembly, inconsistent with the constitution, is void, and cannot be obeyed, without disobeying the superior law to which we were previously and irrevocably bound. The judges, therefore, must take care at their peril, that every act of Assembly they presume to enforce is warranted by the constitution, since if it is not, they act without lawful authority. This is not a usurped or a discretionary power, but one inevitably resulting from the constitution of their office, they being judges for the benefit of the whole people, not mere servants of the Assembly And the danger, about which there is so much alarm, attending the exercise of this power is, in my opinion, the least that can be imagined to attend the exercise of any important power whatever. For the judges, besides the natural desire which must be entertained by every man living in a popular government, of securing the favor of the people, are in fact dependent on the Assembly; for though their duration in office is permanent, at least as long as the act is in being which - establishes their court, their salaries are precarious, and in fact are they only nominally independent in point of station, when the Assembly may every session determine how much they shall have to subsist upon. Did any man in England, previous to the Revolution, apprehend any injury to the prerogative from the judges of those days? They depended indeed, both for salary and place, on the breath of the crown. But the dependence here, I am persuaded, will in general be found equally effectual, at least to prevent a wanton abuse of power, and, it is much to be feared, may in some instances produce an actual bias the other way, which, in my humble opinion, is the great danger to be apprehended. It may also be observed, that it the judges should be disposed to abuse their power, merely for the sake of the abuse, they have means enough of doing so, for every act of Assembly may occasionally come under their judgment in one shape or other, and those acts may be wilfully misconstrued, as well as the constitution.
But it is said, if the judges have this power, so have the county courts. I admit it. The county courts, in the exercise of equal judicial power, must have equal authority. But every argument in respect to the judges (except their dependence for salary), and other obvious ones, occur in great force against this danger, besides the liberty of appeal, which ultimately rests every thing, almost, with the superior courts. The objection, however, urged by some persons, that sheriff's and other ministerial officers must exercise their judgment too, does not apply. For if the power of judging rests with the courts, their decision is final as to the subject matter Did ever a sheriff refuse to hang a man, because he thought he was unjustly convicted of murder?
These are a few observations that have occurred to me on this subject. They are given by a plain man, unambitious of power, but sincerely and warmly interested in the prosperity of his country, feeling every respect for the constitutional authority of the legislature, which, in his opinion, is great enough to satisfy an ambitious, as well as to support the efforts of a public-spirited mind, but a determined enemy on all occasions to arbitrary power, in every shape whatsoever; and reverencing, beyond expression, that constitution by which he holds all that is dear to him in life.
This work was published before January 1, 1928, and is in the public domain worldwide because the author died at least 100 years ago.