When the supreme authority of the people is in question, before we attempt to extend or to confine it, we ought to fix in our minds, with some degree of distinctness, an idea of what it is we mean when we say the PEOPLE.
In a state of RUDE nature there is no such thing as a people. A number of men in themselves have no collective capacity. The idea of a people is the idea of a corporation. It is wholly artificial; and made like all other legal fictions by common agreement. What the particular nature of that agreement was, is collected from the form into which the particular society has been cast. Any other is not THEIR covenant. When men, therefore, break up the original compact or agreement, which gives its corporate form and capacity to a state, they are no longer a people; they have no longer a corporate existence; they have no longer a legal, coactive force to bind within, nor a claim to be recognised abroad. They are a number of vague, loose individuals, and nothing more. With them all is to begin again. Alas! they little know how many a weary step is to be taken before they can form themselves into a mass, which has a true, politic personality.
We hear much from men, who have not acquired their hardness of assertion from the profundity of their thinking, about the omnipotence of a MAJORITY, in such a dissolution of an ancient society as hath taken place in France. But amongst men so disbanded, there can be no such thing as majority or minority; or power in any one person to bind another. The power of acting by a majority, which the gentlemen theorists seem to assume so readily, after they have violated the contract out of which it has arisen (if at all it existed), must be grounded on two assumptions; first, that of an incorporation produced by unanimity; and, secondly, an unanimous agreement, that the act of a mere majority (say of one) shall pass with them and with others as the act of the whole.
We are so little affected by things which are habitual, that we consider this idea of the decision of a MAJORITY as if it were a law of our original nature; but such constructive whole, residing in a part only, is one of the most violent fictions of positive law that ever has been or can be made on the principles of artificial incorporation. Out of civil society nature knows nothing of it; nor are men, even when arranged according to civil order, otherwise than by very long training, brought at all to submit to it. The mind is brought far more easily to acquiesce in the proceedings of one man, or a few, who act under a general procuration for the state, than in the vote of a victorious majority in councils, in which every man has his share in the deliberation. For there the beaten party are exasperated and soured by the previous contention, and mortified by the conclusive defeat. This mode of decision, where wills may be so nearly equal, where, according to circumstances, the smaller number may be the stronger force, and where apparent reason may be all upon one side, and on the other little else than impetuous appetite; all this must be the result of a very particular and special convention, confirmed afterwards by long habits of obedience, by a sort of discipline in society, and by a strong hand, vested with stationary, permanent power, to enforce this sort of constructive general will. What organ it is that shall declare the corporate mind is so much a matter of positive arrangement, that several states, for the validity of several of their acts, have required a proportion of voices much greater than that of a mere majority. These minority decides.
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