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so call it, of a government over any people may be ascer-
tained from the modes which the people pursue to obtain
redress ; for like causes will produce like effects. And
therefore, the government which Britain attempted to erect
over America could be no other than a despotism, because
it left to the Americans no other modes of redress thau
those which are left to people under despotic government?,
petition and resistance: and the Americans, without ever
attending to a comparison on the case, went into the steps
which such people go into, because no other could be pur-
sued: and this similarity of effects lead up to, and ascer-
tains, the similarity of the causes or governments w^hich pro-
duced them.

But to return. The repository where the sovereign power
is placed is the first criterion of distinction between a coun-
try under a despotic form of government and a free country.
In a country under a despotic government, the Sovereign is
the only free man in it. In a republic, the people retaining
the sovereignty themselves, naturally and necessarily retain
freedom with it: for, wherever the sovereignty is, there
must the freedom be; the one cannot be in one place and
the other in another.

As the repository where the sovereign power is lodged is
the first criterion of distinction; the second is the principles
on which it is administered.

A despotic government knows no principle but WILL.
Whatever the sovereign wills to do, the government admits


him the inherent right, and the uncontrolled power of
doing. He is restrained by no fixed rule of right and
wrong, for he makes the right and wrong himself and as he
pleases. If he happens (for a miracle may happen) to be a
man of consummate wisdom, justice, and moderation, of a
mild affectionate disposition, disposed to business, and un-
derstanding, and promoting the general good, all the bene-
ficial purposes of government will be answered under his
administration, and the people so governed may, while this
is the case, be prosperous and easy. But as there can be no
security that this disposition will last, and this administra-
tion continue, and still less security that his successor shall
have the same qualities and pursue the same measures;
therefore, no people exercising their reason and understand-
ing their rights, would, of their own choice, invest any one
man with such a power.

Neither is it consistent to suppose the knowledge of any
one man competent to the exercise of such a power. A
sovereign of this sort is brought up in such a distant line of
life, and lives so remote from the people, and from a know-
ledge of every thing which relates to their local situations
and interests, that he can know nothing from experience
and observation, and all which he does know he must be
told. Sovereign power, without. sovereign knowledge, that
is, a full knowledge of all the matters over which that
power is to be exercised, is a something which contradicts

There is a species of sovereign power, in a single person,
which is very proper when applied to a commander-in-chief
over an army, so far as relates to the military government
of an army, and the condition and purpose of an army con-
stitute the reason why it is so.

In an army every man is of the same profession, that is,
he is a soldier, and the comraander-in-chief is a soldier too :
therefore the knowledge necessary to the exercise of the
power is within himself. By understanding what a soldier
is, he comprehends the local situation, interest, and duty of
every man within, what may be called, the dominion of his
command ; and therefore the condition and circumstances
of an army make a fitness for the exercise of the power.

The purpose likewise, or object of an army, is another
reason : for this power in a commander-in-chief, though
exercised over (he army, is not exercised against it; but is
exercised through or over the 'army against the enemy.


Therefore the enemy, and not the people, is the object it
is directed to. Neither is it exercised over an array, for the
purpose of raising a revenue from it, but to promote its
combined interest, condense its powers, and give it capacity
for action.

But all these reasons cease when sovereign power is trans-
ferred from the commander of an army to the commander
of a nation, and entirely loses its fitness when applied to
govern subjects following occupations, as it governs soldiers
following arms. A nation is quite another element, and
every thing in it differs not only from each other, but all of
them differ from those of an army. A nation is composed
of distinct unconnected individuals, following various trades,
employments, and pursuits : continually meeting, crossing,
uniting, opposing, and separating fron/each other, as acci-
dent, interest, and circumstance shall direct. An army has
but one occupation and but one interest.

Another very material matter in which an army and a
nation differ, is that of temper. An army may be said to
have but one temper ; for, however the natural temper of
the persons composing the army may differ from each
other, there is a second temper takes place of the first : a
temper formed by discipline, mutuality of habits, union of
objects and pursuits, and the style of military manners:
but this can never be the case among all the individuals of
a nation. Therefore the fitness, arising from those cir-
cumstances, which disposes an army to the command of a
single person, and the fitness of a single person to that com-
mand, is not to be found either in one or the other, when we
come to consider them as a sovereign and a nation.

Having already shewn what a despotic government is,
and how it is administered, I now come to shew what the
administration of a republic is.

The administration of a republic is supposed to be di-
rected by certain fundamental principles of right and justice,
from which there cannot, because there ought not, to be
any deviation ; and whenever any deviation appears, there
is a kind of stepping out of the republican principle, and
an approach towards the despotic one. This administration
is executed by a select number of persons, period ically
chosen by the people, and act as representatives and in be-
half of the whole, and who are supposed to enact the same
laws, and pursue the same line of administration as the whole
of the people would do were they assembled together.


The PUBLIC GOOD is to be their object. It is there-
fore necessary to understand what Public Good is.

Public Good is not a term opposed to the good of indi-
viduals ; on the contrary, it is the good of every individual
collected. It is the good of all, because it is the good of
every one: for as the public body is every individual col-
lected, so the public good is the collected good of those

The foundation principle of Public Good is justice, and
wherever justice is impartially administered the public good
is promoted ; for as it is to the good of every man that no
injustice be done to him, so likewise it is to his good that
the principle which secures him should not be violated in
the person of another, because such a violation weakens his
security, and leaves to chance what ought to be to him a
rock to stand on.

But in order to understand more minutely, how the Public
Good is to be promoted, and the manner in which the repre-
sentatives are to act to promote it, we must have recourse
to the original or first principles, on which the people formed
themselves into a republic.

When a people agree to form themselves into a republic
(for the word REPUBLIC means the PUBLIC GOOD, or the
good of the whole, in contradiction to the despotic form,
which makes the good of the sovereign, or of one man, the
only object of the government) when, I say, they agree to
do this, it is to be understood, that they mutually resolve
and pledge themselves to each other, rich and poor alike, to
support and maintain this rule of equal justice among them.
They therefore renounce not only the despotic form, but the
despotic principle, as well of governing as of being governed
by mere will and power, and substitute in its place a govern-
ment of justice.

By this mutual compact the citizens of a republic put it
out of their power, that is, they renounce, as detestable, the
power of exercising at any future time, any sp.ecies of des-
potism over each other, or doing a thing, not right in itself,
because a majority of them may have strength of numbers
sufficient to accomplish it.

In this pledge and compact^ lies the foundation of the

* This pledge and compact is contained in the Declaration of
Rights prefixed to the Constitution, and is as follows :

I. That all men are born equally free and independent, and


republic : and the security to the rich and the consolation to
the poor is, that what each man has is his own ; that no de-
spotic sovereign can take it from him, and that the common
cementing principle which holds all the parts of a republic
together, secures him likewise from the despotism of numbers :
for despotism may be more effectually acted by many over
a few than by one man over all.

have certain natural, inherent and unalienable rights, amongst
which are, the enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and pursuing and obtaining
happiness and safety.

II. That all men have a natural and unalienable right to worship
Almighty God, according to the dictates of their own consciences
and understanding: And that no man ought, or of right can be
compelled, to attend any religious worship, or erect or support any
place of worship, or maintain any ministry, contrary to, or against,
his own free will and consent : Nor can any man who acknowledges
the btlng of a God, be justly deprived or abridged of any civil
right as a citizen, on account of his religious sentiments or peculiar
mode of religious.;!: worship : And that no authority can or ought to
be vested in, or assumed by any power whatever, that shall in any
case interfere with, or in any manner control, the right of con-
science in the free exercise of religious worship.

III. That the people of this State have the sole, exclusive and
inherent right of governing and regulating the internal pclice of
the same.

IV. That all power being originally inherent in, and consequent-
ly derived from, the people; therefore all officers of government
whether legislative or executive, are their trustees and servants,
and at all times accountable to them.

V. That government is, or ought to be, instituted for the com-
mon benefit, protection and security of the people, nation or com-
munity ; and not for the particular emolument or advantage of any
single man, family, or set of men, who are a part only of that com-
munity ; and that the community hath an indubitable, unalienable
and indefeasible right to reform, alter or abolish Government in
such manner as shall be by that community judged most condu-
cive to the public weal.

VI. That those who are employed in the legislative and executive
business of the State may be restrained from oppression, the people
have a right, at such periods as they may think proper, to reduce
their public officers to a private station, and supply the vacancies
by certain and regular elections.

VII. That all elections ought to be free ; and that all free men
having a sufficient evident common interest with, .and attachment
to the community, have a right to elect officers, or to be elected
into ofliee.


Therefore, in order to know how far the power of as-
sembly, or a house of representatives can act in administer-
ing the affairs of a republic, we must examine how far the
power of the people extends under the original compact
they have made with each other ; for the power of the repre-
sentatives is in many cases less, but never can be greater than
that of the people represented ; and whatever the people in

VIII. That every member of society hath a right to be protected
in the enjoyment of life, liberty arid property, and therefore is
bound to contribute his proportion towards the expence of that
protection, and yield his personal service when necessary, or an
equivalent thereto: But no part of a man's property can be justly
taken from him, or applied to public uses, without his own con-
sent, or that of his legal representatives : Nor can any man who is
conscientiously scrupulous of bearing arms, be justly compelled
thereto, if he will pay such equivalent : Nor are the people bound
by any laws, but such as they have in like manner assented "o, for
their common good*

IX. That in all prosecutions for criminal offences, a man hath a
right to be heard by himself and his counsel, to demand the cause
and nature of his accusation, to be confronted with the witnesses,
to call for evidence in his favour, and a speedy public trial, by an
impartial jury of the couatry, without the unanimous consent of
which jury he cannot be found guilty : Nor can he be compelled to
give evidence against himself : Nor can any man be justly deprived
of his liberty, except by the laws of the land, or the judgment of
his peers.

X. That the people have a right to hold themselves, their houses,
papers, and possessions, free from search or seizure; and therefore
warrants without oaths or affirmations first made, affording a suffi-
cient foundation for them, and whereby any officer or messenger
may be commanded or required to search suspected places, or to
seize any person or persons, his or their property, not particularly
described, are contrary to that right, and ought not to be

XL That in controversies respecting property, and in suits be-
tween man and man, the parties have a right to trial by jury, which
ought to be held sacred.

XII. That the people have a right to freedom of speech, and of
writing, and publishing their sentiments ; therefore the freedom of
the press ought not to be restrained.

XIII. That the people have a right to bear arms for the defence
of themselves and the state; and as standing armies in the time of
peace, aie dangerous to liberty, they ought not to be kept up :
And that the military should be kept under strict subordination to,
and governed by, the civil power.


their mutual original compact have renounced the power of
doing towards, or acting over each other, the representatives
cannot assume the power to do, because, as I have already
said, the power of the representatives cannot be greater than
that of the people they represent.

In this place it naturally presents itself that the people in
their original compact of equal justice or first principles of
a republic, renounced as despotic, detestable and unjust, the
assuming a right of breaking and violating their engage-
ments, contracts and compacts with, or defrauding, impos-
ing or tyrannizing over each other, and therefore the repre-
sentatives cannot make an act to do it for them, and any such
an act would be an attempt to depose, not the personal sove-
reign, but the sovereign principle of the republic, and to pro-
duce despotism in its stead.

It may in this place be proper to distinguish between that
species of sovereignty which is claimed and exercised by-
despotic monarchs, and that sovereignty which the citizens of
a republic inherit and retain. -The sovereignty of a despo-
tic monarch assumes the power of making wrong right, or
right wrong, as he pleases or as it suits him. The sovereign-
ty in a republic is exercised to keep right and wrong in their
proper and distinct places, and never to suffer the one to
usurp the place of the other. A republic, properly under-
stood, is a sovereignty of justice, in contradistinction to a so-
vereignty of will. ;

XIV. That a frequent recurrence to fundamental principles,
and a firm adherence to justice, moderation, temperance, industry
and frugality are absolutely necessary to preserve the blessings of
liberty and keep a government free ; The people ought therefore
to pay particular attention to these points in the choice of officers
and representatives, and have a right to exact a due and constant
regard to them, from their legislators and magistrates, in the
making and executing such laws as are necessary for the good go-
vernment of the State.

XV. That all men have a natural inherent right to emigrate
from one State to another that will receive them, or to form a new-
State in vacant countries, or in such countries as they can purchase,
whenever they think that thereby they may promote their owu

XVI. That the people have a right to assemble together, to con-
sult for their common good, to instruct their representatives, and
to apply to the legislature for redress of grievances, by address,
petition or remonstrance.


Our experience iri republicanism is yet so slender, that it
is much to be doubted whether all our public laws and acts
are consistent with or can be justified on the principles of a
republican government.

We have been so much habituated to act in committees at
the commencement of the dispute, and during the interreg-
num of Government, and in many cases since, and to adopt
expedients warranted by necessity, and to permit to our-
selves a discretionary use of power, suited to the spur and
exigency of the moment, that a man transferred from a
committee to a seat in the legislature imperceptibly takes
with him the ideas and habits he has been accustomed to,
and continues to think like a committee-man instead of a
legislator, and to govern by spirit rather than by the rule of
the constitution and the principles of the republic.

Having already stated that the power of the representa-
tives can never exceed the power of the people whom they
represent, I now proceed to examine more particularly,
what the power of the representatives is.

It is, in the first place, the power of acting as legislators
in making laws and in the second place, the power of
acting in certain cases, as agents or negociators for the com-
monwealth, for such purposes as the circumstances of the
commonwealth require.

A very strange confusion of ideas, dangerous to the credit,
stability, and the good - and honour of the commonwealth,
has arisen, by confounding those two distinct powers and
things together, and blending every act of the assembly, of
whatever kind it may be, under one general name of
" Laws of the Commonwealth" and thereby creating an
opinion (which is truly of the despotic kind) that every
succeeding assembly has an equal power over every tran-
saction, as well as law, done by a former assembly.

All laws are acts, but all acts are not laws. Many of the
acts of the assembly are acts of agency or negociation, that
is, they are acts of contract and agreement, on the part of
the State, with certain persons therein mentioned, and for
certain purposes therein recited. An act of this kind, after
it has passed the house, is of the nature of a deed or con-
tract, signed, sealed, and delivered ; and subject to the same
general laws and principles of justice as all other deeds and
contracts are : for in a transaction of this kind, the State
stands as an individual, and can be known in no other cha-
racter in a court of justice.

By " LAWS," as distinct from the agency transactions or

B 2


matters of negociation, are to be comprehended all those
public acts of the assembly or commonwealth which have
an universal operation, or apply themselves to every indi-
vidual of the commonwealth. Of this kind are the laws
for the distribution and administration of justice, for the
preservation of the peace, for the security of property, for
raising the necessary revenue by just proportions, &c. &c.

Acts of this kind are properly LAWS, and they may be
altered and amended, or repealed, or others substituted in
their places, as experience shall direct, for the better effect-
ing the purpose for which they were intended : and the
right and power of the assembly to do this, is derived from
the right and power which the people, were they all assem-
bled together, instead of being represented, would have to
do the same thing: because, in acts or laws of this kind,
there is no other party than the public. The law, or the
alteration, or the repeal, is for themselves ; and whatever
the effect may be, it fails on themselves; if for the better,
they have the benefit of it if for the worse, they suffer
the inconvenience. No violence to any one is here offered
no breach of faith is here committed. It is therefore one of
these rights and powers which is within the sense, meaning,
and limits of the original compact of justice which they
formed with each other as the foundation-principle of the
republic, and being one of those rights and powers, it de-
volves on their representatives by delegation.

As it is not my intention (neither is it within the limits
assigned to this work) to define every species of what may
be called LAWS (but rather to distinguish that part in which
the representatives act as agents or negociators for the State,
from the legislative part), I shall pass on to distinguish and
describe those acts of the assembly which are acts of agency
or njegociation, and to shew that as they are different in
their nature, construction, and operation, from legislative
acts, so likewise the power and authority of the assembly
over them, after they are passed, is different.

It must occur to every person on the first reflection, that
the affairs and circumstances of a commonwealth require
other business to be done besides that of making laws, and
consequently, that the different kinds of business cannot all
be classed under one name, or be subject to one and the

same rule of treatment. fiut to proceed

. By agency transactions, or matters of uegociation, done
by the assembly, are to be comprehended all that kind of
public business, which the assembly, as representatives of


tbe republic, transact in its behalf, with certain person or
persons, or part or parts of the republic, for purposes men-
tioned in the act, and which the assembly confirm and ratify
on the part of the commonwealth, by affixing to it the seal
of the State.

An act of this kind differs from a law of the before-men-
tioned kind; because here are two parties, and there but
one; and the parties are bound to perform different and
distinct parts : whereas, in the before-mentioned law, every
man's part was the same.

These acts, therefore, though numbered among tbe laws,
are evidently distinct therefrom, and are not of the legisla-
tive kind. The former are laws for the government of the
commonwealth ; these are transactions of business, such as
selling and conveying an estate belonging to the public, or
buying one; acts for borrowing money, and fixing with the
lender the terms and mode of payment; acts of agreement
and contract, with certain person or persons, for certain pur-
poses ; and, in short, every act in which two parties, the State
being one, are particularly mentioned or described, and in
which the form and nature of a bargain or contract is com-
prehended. These, if for custom and uniformity sake we

call by the name of LAWS, they are not laws for the govern-
ment of the commonwealth, but for the government of the
contracting parties, as all deeds and contracts are ; and are
not, properly speaking, acts of the assembly, but joint acts,
or acts of the assembly in behalf of the commonwealth on
one part, and certain persons therein-mentioned on the other

Acts of this kind are distinguishable in two classes : r

First, those wherein the matters inserted in the act have
already been settled and adjusted between the State on one
part, and the persons therein mentioned on the other part.
In this case the act is the completion and ratification of the
contract or matters therein recited. It is in fact a deed
signed, sealed, and delivered.

Secondly, those acts wherein the matters have not been
already agreed upon, and wherein the act only holds forth
certain propositions and terms to be accepted of and ac-
ceded to.

I shall give an instance of each of those acts. First
The State wants tbe loan of a sum of money certain
persons make an offer to government to lend that sum, and
send in their proposals : the government accept these pro-

Online LibraryThomas PaineThe political and miscellaneous works of Thomas Paine .. (Volume 1) → online text (page 36 of 65)