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The opinions which we advocate, cannot be objected as not sufficiently popular, for the power of re-election gives the constituents as great an influence over their representatives as is desirable. Besides, will any one who has paid any attention to the history of our country, deny for a moment that the voice of the people is sufficiently heard in the halls of Congress? Is it not more common, on the contrary, for representatives to partake too deeply of the narrow party feelings and local jealousies of the little communities which elect them? We are happy in believing that the majority of our citizens are desirous that the public councils should be guided by wisdom and justice. But there are questions daily brought before the national legislature, which the great majority of the community, including many individuals of education and talents, are incapable of deciding correctly as they arise, because their attention has not been devoted to such subjects. To comprehend fully these questions, requires the mind to be trained to the business by long practice and study. To say that without this previous preparation they are beyond the reach of the majority of men, is no more discreditable to them, than it is to say that they are not born priests, doctors, engineers, lawyers, merchants, blacksmiths, or carpenters. No individual can know every thing which is important to his own personal welfare or the public good. On many subjects, even in the most enlightened community, every one must trust much to the discretion of others, who are more conversant with those subjects. And though the right of an individual to instruct his private agents, is unquestionable; yet it is a right which he exercises very rarely in matters, with the details of which he is not familiar. He is content with dismissing his agents, if he finds they do not perform the business entrusted to them faithfully. No one, for instance, thinks of directing his attorney how to frame a plea, or his physician how to ascertain a disease, or what medicine to prescribe; or pretends to tell his carpenter what tools he must use, or his blacksmith how long he must keep his iron in the fire. All that the enployer, in cases of this kind, can do, is to select persons in whose skill and fidelity he can confide. So it is in regard to legislation; the voters can judge of the integrity and capacity of their representatives, though they cannot of many questions which must come before the legislative assembly. One provision in a bill is objected to as being unconstitutional, another because
it is not in accordance with the general system of the United States on the same subject, a third, because it will operate upon a subject which it was not intended to affect. One section is too narrow, and another too broad in its extent. One clause is inconsistent with the general object of the bill, and requires to be struck out; another is obscure, and must be amended. Scarcely a bill of any importance is introduced, in which questions of this kind do not occur. The mode in which they are determined, may involve important interests. Yet it is evident that a popular meeting could not act upon these questions.
It is indeed so obvious that popular meetings are not suitable for examining the details of legislation, that all which they have generally attempted has been to give general instructions upon a subject of interest, as to favor, or to oppose some particular
But even this power, restricted as it is, would be found inconvenient and dangerous in its operation. The constituents cannot know the exact form of the proposed measure, or other causes, which may be such as would entirely reverse their wishes with regard to it. The representative, for instance, is ordered to vote for an increased duty on a particular article; but the bill introduced increases the duties upon other articles, and he thinks that his constituents will be more injured by the increase in the latter case, than they will be benefited by it in the former. Ought he to be bound to follow their instructions blindly, or to vote according to what he believes to be the interest of the country? Again, the representative is instructed to vote for war with a foreign nation. But when the question is brought forward, news arrives which renders an accommodation by negotiation, probable. Ought he to be bound to join with an angry party, in a declaration of war; though he cannot tell what effect the news might produce upon his constituents? The truth is, that neither the expressed will, nor the known wishes of constituents, to whatever respect they may be entitled, but the public welfare, ought to be the guide of the representative's conduct.
We have given a few pages to this subject, not because it appears to us at all difficult, but because it has been much misunderstood and misrepresented. Indeed, the position that the bodies of voters who elect representatives, and that the legislatures of the states,constitute portions of the legislative power of the United States, as they must if their instructions to senators and representatives are binding, seems to us such an obvious absurdity, that no argument can make it appear to us more unreasonable than the mere statement of the proposition. We find it difficult to conceive how any person, considering the question coolly and dispassionately, can come to any other conclusion than that the right of giving binding instructions to representatives is not given expressly by the constitution, and that it is not a consequence of the relation between the representative and his constituents; but, on the contrary, that the provisions of the constitution, and the nature of the office of a representative as a member of the national legislature, distinctly negative such a right; and further that it is inexpedient that constituents should have such a right, as in most cases it would be impossible for them to exercise it at all, and in those in which it would be possible, it could not be exercised either with advantage or safety.
ART. IX.-LARCENY IN A SHIP IN PORT.
MUNICIPAL COURT OF THE CITY OF BOSTON, 2 Before the Hon. PeJuly Term, 1830.
TER 0. THACHER. The Commonwealth v, Samuel Hickman. This was an indictment found at the May term of the Municipal Court for the county of Suffolk, and contained two counts. The first alleged that pieces of coin of the value of $50, of the property of Asaph Gray,' the master, had been stolen by the defendant from on board a certain vessel called the schooner Chatham. The second count was substantially the same, but averred the property to be in Joshua Phelps, the consignor.
At the trial before Thacher, Judge, a verdict was found against the defendant, and a motion in arrest of judgment was filed, and argued at the July term by J. Pickering and William Parker, Esqs. for the defendant, and J. T. Austin, Esq. for the Commonwealth.
The grounds in arrest of judgment were : 1. Because the property is alleged to be taken from on board the vessel, but the indictment does not contain the name of the owner of the vessel.
2. Because it appeared at the trial, that the defendant was at the time of the taking alleged in the indictment, the second officer of the vessel and a part of the ship's company, and could not, within the meaning of the statute, be deemed guilty of stealing from the vessel, to which he so belonged.
3. Because the indictment was not sufficiently explicit to warrant a conviction upon the statute, not averring that the vessel was lying within the body of the county,' as the statute requires.
W. PARKER contended that as the 6th section of the statute upon which the indictment was founded, referred to the 4th section, in allusion to the ship or vessel, it was necessary that the name of the owners should be specifically set forth, and cited the 12 of statute of Anne, c. 7, from which the statute of Mass. was taken, and he argued that the English decisions upon the subject would regulate the construction of the statute of Massachusetts. To this point he cited The King v. White, 1 Leach, Crown Cas. 286; 1 Stark. Crim. Plead. 210 & seq; Rex v. Gould, 1 Leach, Crown Cas. 257; in which it is laid down, that in an indictment for burglary the name of the owner of the house should be averred, in order to sustain the aggravated part of the offence; and the present was presumed to be a parallel case. As to the analogy of the case of a vessel to that of a dwelling house, he cited the precedent in Davis's Justice, p. 444, and in note to the same.
To the 2d point, the following cases were cited : Rex v. Thompson and Daniel, 1 Leach, 379; Rex v. Gould, 1 Leach, 257. For aught that appears in the present case the vessel might have belonged to the defendant. i Salk 370; Rex v. Clark, East's P. C. 514; Starkie's Crim. Plead. 143, 214; Rex v. Pike, 1 Leach, 357; Stat. 24 Geo. 2. c. 45; Rex v. Edwards, 1 East's Rep. 278.
To the 3d point, the following authorities in support of the position that it should have been farther alleged in the indictment, that the vessel was, in the language of the statute, lying within the body of the county: Foster Cro. Law 130; ibid 423; Davis's Justice, 444; 2 Hale 1702; Rex v. Pemberton, Burr. Rep. 1037; King v. Matthews, 5 T. R. 164; Rex v. Leigh, 1 Leach, 63; Bill of Rights of Mass. art. 12.
The latter case was an indictment upon statute of Geo. 2, for stealing goods, wares, and merchandise, and the proof was of dollars and guineas, and these were held not to be within the description in the indictment.
[We have not been furnished with minutes of the argument on the side of the prosecution. The authorities cited by Mr. Austin will appear from Mr. Pickering's reply, being there referred to and commented upon.]
PICKERING, in reply. The offence charged in this indictment is an aggravated larceny. Simple larceny is defined, the wrongful or fraudulent taking and carrying way by any person of the personal goods of another, with a felonious intent, without the consent of the owner. 2 East's P. C. 553. The owner of the goods stolen is accordingly named, in cases of simple larceny. For the like reasons, the facts which constitute the aggravated offence, ought to be as explicitly alleged. By our statute, the aggravation consists in committing a larceny in a dwelling-house, shop, warehouse, or office, not adjoining to or occupied with a dwelling-house, or any ship or vessel, lying within the body of a county,' &c. In cases of larceny from a dwelling-house, the rule of law is well settled, that the owner's name must be alleged ; and no sufficient reason can be given why the owner of a ship should not also be named in the indictment. In the former case, the owner is named, in order that it may appear that the house belonged to some other person than the party who committed the larceny; it would not be an aggravated larceny within the statute if committed by him in his own house. The English statute (from which ours is copied) has always been held not to extend to a stealing by a man in his own house ; for the intention was to protect the owner's property and the property of others lodged in his house, from the depredations of third persons. 2 East's P. C. 644, 779; 1 Leach's Cro. Cas. 379 and 339, note ; 2 Russ. on Crimes, 935. The principle of these laws is, that, to constitute the aggravated offence, there must, in addition to the violation of rights of property, be also a violation of that domestic security or safeguard which the law intends shall be enjoyed by a man in his own house, or by those who have property deposited under that safeguard. In the very nature of the thing, therefore, the statute larceny must be one committed in the dwelling-house or ship, &c. of some other person than the felon himself. It has accordingly been adjudged necessary to name the owner of the house in all such cases. And if the English