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ral laws. I need not suggest, that such legislation is fraught with danger. This body is not favorably constituted for the investigation of private claims, and is liable to be misled by the representations and importunities of individuals complaining of the unjust and severe application of general rules. In “a government of laws, the laws themselves should be general and just, and should be allowed to have a free and equable course, uninterrupted by the interference of any department of government.”
It is implied in this extract, that the “principal employment” of the four legislative bodies anterior to that which governor Morton was then addressing, had been the enactment of “special statutes;”—simply on the ground, that seven out of nine of the statutes enacted were special. It is astonishing, that a gentleman of the legislative experience of governor Morton should make such a statement. He must have known, that the seven hundred special acts required but very little time for their enactment, unless, in some particular instance, a general principle happened to be involved; and that in all probability the time spent in legislation would not have been much increased by the enactment of twice as many. The governor admits, that there are cases involving private interests, which ought to receive the attention and action of the legislative power. These cases, then, are not those which are so obnoxious under the name of special legislation. Some of the private acts, too, he says, were passed for the purpose of exempting particular cases from the operation of general laws; and legislation of this kind, he thinks, is fraught with danger, because the legislature is not favorably constituted for the investigation of private claims, and is liable to be misled by the representations and importunities of individuals. These, then, seem to be the cases in which special legislation is inadmissible, and in which the general laws ought to be suffered to prevail, however unjust and unequal they may be. But, after all, the real difficulty in all cases of private legislation lies in the jealousy, which true patriots always entertain, lest some one should by some means or other obtain privileges or advantages which are beyond their reach; and, it is because those advantages which are supposed to be conferred by special legislation lie on the surface, and are readily seen, that special legislation has been strenuously attacked; while those unequal advantages, which result from general laws, and can only be remedied by special legislation, are wholly overlooked. We propose to say a few words on this subject, and to endeavor to show that it is not the particular form of legislation which is responsible for the supposed wrong of conferring unequal advantages or privileges; inasmuch as the same effect may be and undoubtedly often is produced by the operation of general laws. It is undeniable, certainly, that a peculiar or exclusive privilege may be conferred more directly upon an individual, by a particular law in his favor, than by any general law; and that legislation of this description is consequently liable to abuse, where those, who are entrusted with the legislative power, are either ignorant, careless, or corrupt. Every one will admit, that it is the duty, and, indeed, the principal object, of government, to promote in the highest degree the welfare of the whole people, (which is nothing more nor less than the aggregate of the material well-being of each individual member of the community), so far as that welfare can be promoted by the sovereign power of the government, exerted in the way of legislation. But, it is said, that the welfare of the whole must be promoted through the medium of general laws, which, because they are general and apply as much to one as to another, are therefore supposed to operate equally upon the whole. The force of this argument lies in the supposition, that general laws do in fact operate equally; which, if true at all, must be admitted with great limitations and restrictions. If the condition and situation, and the thousand circumstances which diversify and individualize human character and pursuits, were the same in all, then, there could be no doubt, that a general law would operate equally upon all; but, in the infinite variety of interests, local situations, intelligence and wealth, which distinguish individuals from one another, it is entirely impossible that human wisdom should devise a law of such perfection, as to operate equally and alike upon all. If this diversity of condition and circumstances be admitted, and it cannot be denied, it seems to us, that one of two things is necessary to be done by the legislative power, in order to give equal rights, privileges, and advantages to the citizens; either to make the laws general and immutable, but perfect, so that their very generality shall operate to the equal advantage of those who in all else are and must remain unequal; which perfection is altogether impossible; or to make the laws as varied and diversified as are the circumstances and conditions of men, or, which comes to the same thing, and is indeed the only practicable mode of effecting it, to admit of special and particular legislation in special and particular cases. How absurd and ridiculous, indeed, would it be, for the legislature of Massachusetts to refuse to consult and promote the welfare of the excellent people of the island of Nantucket, unless it could be done by means of general laws, operating alike in all parts of the state 7 But such a refusal would be worse than absurd and ridiculous; it would amount to a virtual exclusion of those worthy citizens from the advantages of government. The true principle is, that, where the general law does not operate to promote the welfare of an individual, by reason of his peculiar situation or condition, in common with that of his fellow-citizens, his case ought to be provided for by such special legislation as is consistent with the welfare of every other citizen and of the whole; and this principle admits of a practical and safe application, wherever the legislative WOL. XXV.-NO. L. 21
body is composed of competent, faithful, and honest men. But, where the members of the legislature are incompetent, unfaithful or dishonest, they are most certainly as unsafe persons to be entrusted with general as with special legislation.
Many reasons are assigned for this horror of special legislation; but, we fear, that the real reason is one, which lies deeper than any fancied practical abuses; and which results from an imperfect and mistaken view of the nature of our government. Many, probably most persons take it for granted, or seem to consider, that our government, though constituted by ourselves, is yet something out of us, – something independent of our control, -something which we have the power to form and set in motion, and which is then to run on and do its work, without much, if any, aid or coöperation on our part, — and in reference to which, our duty is accomplished, when the machine is once under way. But this is all a mistake. Ours is not, strictly speaking, a government; it is merely an agreed form, through and by means of which, we live and act, as members of the same social community; in which we are continually called to exercise what may be called the social will, precisely as in our character of individuals, we cannot avoid the constant exercise of our individual wills; and we are as much responsible for the exercise of the social will, or, in other words, for the performance of the duty of self-government, in our character of members of society, as we are for the exercise of our individual will, in the government of ourselves as individuals. We can do no more, at present, than allude to this subject; but we feel persuaded, that if every citizen could be made to realize the duty, the importance, and the responsibility of self-government, there would be ability, faithfulness, and honesty, combined with unceasing watchfulness, in our legislative councils; and we should hear very little of the danger of private or special legislation.
ART. VI. — BIOGRAPHICAL SKETCHES OF JAMES WARREN, JEDEDIAH FOSTER, AND NATHANIEL PEASELEE SARGEANT.
As we approach the period, in these sketches, when we must refer to men who were known and are remembered by living witnesses, it becomes even more difficult to do justice to the subject, than in the case of those whose personal histories had been much more nearly forgotten in the lapse of time; for, while more is known of the one than of the other, years have not altogether obliterated events or impressions with which the memory of most of the leading men of the last half century is associated in our political, to say nothing of our legal, history. The most, therefore, that can be promised, is but a detail of chronological events, which may hereafter serve as a guide to the inquirer into the judicial history of the commonwealth.
Although he never acted as judge of the superior court, and, as is believed, declined the appointment, it does not seem proper altogether to omit, in this connexion, the name of JAMES WARREN, who was appointed to that place in 1776.
He was a native of Plymouth, and a descendant in regular line from Richard Warren, one of the noble little pilgrim band who came over in the Mayflower. He was born in 1726, and was graduated at Cambridge in 1745.
His taste did not lead him to the pursuit of either of the learned professions, and he became a merchant of eminence and wealth. At a comparatively early period in life, he was appointed sheriff of the county of Plymouth, which office he held until the revolution, although through all the struggles preliminary to that contest, he took a decided stand, as he did during the revolution, on the side of the colonies. As early as 1766, he was chosen a member of