Numerous publications, in pamphlets and in the newspapers, appeared, on the propriety and necessity of new modelling the federal government.
After some time of public discussion, carried on through the channel of the press, and in conversations, the state of Virginia, experiencing some inconvenience with respect to commerce, proposed holding a continental conference; in consequence of which, a deputation from five or six state assemblies met at Annapolis, in Maryland, in 1786. This meeting, not conceiving itself sufficiently authorised to go into the business of a reform, did no more than state their general opinions of the propriety of the measure, and recommend that a convention of all the states should be held the year following.
The convention met at Philadelphia in May, 1787, of which General Washington was elected president. He was not at that time connected with any of the state governments, or with congress. He delivered up his commission when the war ended, and since then had lived a private citizen.
The convention went deeply into all the subjects; and having, after a variety of debate and investigation, agreed among themselves upon the several parts of a federal constitution, the next question was, the manner of giving it authority and practice.
For this purpose they did not, like a cabal of courtiers, send for a Dutch Stadtholder, or a German Elector; but they referred the whole matter to the sense and interest of the country.
They first directed that the proposed constitution should be published.
Secondly, that each state should elect a convention, expressly for the purpose of taking it into consideration, and of ratifying or rejecting it; and that as soon as the approbation and ratification of any nine states should be given, that those states shall proceed to the election of their proportion of members to the new federal government; and that the operation of it should then begin, and the former federal government cease.
The several states proceeded accordingly to elect their conventions.
Some of those conventions ratified the constitution by very large majorities, and two or three unanimously. In others there were much debate and division of opinion. In the Massachusetts convention, which met at Boston, the majority was not above nineteen or twenty, in about three hundred members; but such is the nature of representative government, that it quietly decides all matters by majority. After the debate in the Massachusetts convention was closed, and the vote taken, the objecting members rose and declared, "That though they had argued and voted against it, because certain parts appeared to them in a different light to what they appeared to other members; yet, as the vote had decided in favour of the constitution as proposed, they should give it the same practical support as if they had for it."
As soon as nine states had concurred (and the rest followed in the order their conventions were elected), the old fabric of the federal government was taken down, and the new one erected, of which General Washington is president.--In this place I cannot help remarking, that the character and services of this gentleman are sufficient to put all those men called kings to shame. While they are receiving from the sweat and labours of mankind, a prodigality of pay, to which neither their abilities nor their services can entitle them, he is rendering every service in his power, and refusing every pecuniary reward. He accepted no pay as commander-in-chief; he accepts none as president of the United States.
After the new federal constitution was established, the state of Pennsylvania, conceiving that some parts of its own constitution required to be altered, elected a convention for that purpose. The proposed alterations were published, and the people concurring therein, they were established.
In forming those constitutions, or in altering them, little or no inconvenience took place. The ordinary course of things was not interrupted, and the advantages have been much. It is always the interest of a far greater number of people in a nation to have things right, than to let them remain wrong; and when public matters are open to debate, and the public judgment free, it will not decide wrong, unless it decides too hastily.
In the two instances of changing the constitutions, the governments then in being were not actors either way. Government has no right to make itself a party in any debate respecting the principles or modes of forming, or of changing, constitutions. It is not for the benefit of those who exercise the powers of government that constitutions, and the governments issuing from them, are established. In all those matters the right of judging and acting are in those who pay, and not in those who receive.
A constitution is the property of a nation, and not of those who exercise the government. All the constitutions of America are declared to be established on the authority of the people. In France, the word nation is used instead of the people; but in both cases, a constitution is a thing antecedent to the government, and always distinct there from.
In England it is not difficult to perceive that everything has a constitution, except the nation. Every society and association that is established, first agreed upon a number of original articles, digested into form, which are its constitution. It then appointed its officers, whose powers and authorities are described in that constitution, and the government of that society then commenced. Those officers, by whatever name they are called, have no authority to add to, alter, or abridge the original articles. It is only to the constituting power that this right belongs.
From the want of understanding the difference between a constitution and a government, Dr. Johnson, and all writers of his description, have always bewildered themselves. They could not but perceive, that there must necessarily be a controlling power existing somewhere, and they placed this power in the discretion of the persons exercising the government, instead of placing it in a constitution formed by the nation. When it is in a constitution, it has the nation for its support, and the natural and the political controlling powers are together. The laws which are enacted by governments, control men only as individuals, but the nation, through its constitution, controls the whole government, and has a natural ability to do so. The final controlling power, therefore, and the original constituting power, are one and the same power.
Dr. Johnson could not have advanced such a position in any country where there was a constitution; and he is himself an evidence that no such thing as a constitution exists in England. But it may be put as a question, not improper to be investigated, that if a constitution does not exist, how came the idea of its existence so generally established?
In order to decide this question, it is necessary to consider a constitution in both its cases:--First, as creating a government and giving it powers. Secondly, as regulating and restraining the powers so given.
If we begin with William of Normandy, we find that the government of England was originally a tyranny, founded on an invasion and conquest of the country. This being admitted, it will then appear, that the exertion of the nation, at different periods, to abate that tyranny, and render it less intolerable, has been credited for a constitution.
Magna Charta, as it was called (it is now like an almanack of the same date), was no more than compelling the government to renounce a part of its assumptions. It did not create and give powers to government in a manner a constitution does; but was, as far as it went, of the nature of a re-conquest, and not a constitution; for could the nation have totally expelled the usurpation, as France has done its despotism, it would then have had a constitution to form.
The history of the Edwards and the Henries, and up to the commencement of the Stuarts, exhibits as many instances of tyranny as could be acted within the limits to which the nation had restricted it. The Stuarts endeavoured to pass those limits, and their fate is well known. In all those instances we see nothing of a constitution, but only of restrictions on assumed power.
After this, another William, descended from the same stock, and claiming from the same origin, gained possession; and of the two evils, James and William, the nation preferred what it thought the least; since, from circumstances, it must take one. The act, called the Bill of Rights, comes here into view. What is it, but a bargain, which the parts of the government made with each other to divide powers, profits, and privileges? You shall have so much, and I will have the rest; and with respect to the nation, it said, for your share, You shall have the right of petitioning. This being the case, the bill of rights is more properly a bill of wrongs, and of insult. As to what is called the convention parliament, it was a thing that made itself, and then made the authority by which it acted. A few persons got together, and called themselves by that name. Several of them had never been elected, and none of them for the purpose.
From the time of William a species of government arose, issuing out of this coalition bill of rights; and more so, since the corruption introduced at the Hanover succession by the agency of Walpole; that can be described by no other name than a despotic legislation. Though the parts may embarrass each other, the whole has no bounds; and the only right it acknowledges out of itself, is the right of petitioning. Where then is the constitution either that gives or restrains power?
It is not because a part of the government is elective, that makes it less a despotism, if the persons so elected possess afterwards, as a parliament, unlimited powers. Election, in this case, becomes separated from representation, and the candidates are candidates for despotism.
I cannot believe that any nation, reasoning on its own rights, would have thought of calling these things a constitution, if the cry of constitution had not been set up by the government. It has got into circulation like the words bore and quoz [quiz], by being chalked up in the speeches of parliament, as those words were on window shutters and doorposts; but whatever the constitution may be in other respects, it has undoubtedly been the most productive machine of taxation that was ever invented. The taxes in France, under the new constitution, are not quite thirteen shillings per head,*[18] and the taxes in England, under what is called its present constitution, are forty-eight shillings and sixpence per head--men, women, and children--amounting to nearly seventeen millions sterling, besides the expense of collecting, which is upwards of a million more.
In a country like England, where the whole of the civil Government is executed by the people of every town and county, by means of parish officers, magistrates, quarterly sessions, juries, and assize; without any trouble to what is called the government or any other expense to the revenue than the salary of the judges, it is astonishing how such a mass of taxes can be employed. Not even the internal defence of the country is paid out of the revenue. On all occasions, whether real or contrived, recourse is continually had to new loans and new taxes. No wonder, then, that a machine of government so advantageous to the advocates of a court, should be so triumphantly extolled! No wonder, that St. James's or St. Stephen's should echo with the continual cry of constitution; no wonder, that the French revolution should be reprobated, and the res-publica treated with reproach! The red book of England, like the red book of France, will explain the reason.*[19] I will now, by way of relaxation, turn a thought or two to Mr. Burke. I ask his pardon for neglecting him so long.
"America," says he (in his speech on the Canada Constitution bill), "never dreamed of such absurd doctrine as the Rights of Man."
Mr. Burke is such a bold presumer, and advances his assertions and his premises with such a deficiency of judgment, that, without troubling ourselves about principles of philosophy or politics, the mere logical conclusions they produce, are ridiculous. For instance, If governments, as Mr. Burke asserts, are not founded on the Rights of Man, and are founded on any rights at all, they consequently must be founded on the right of something that is not man. What then is that something?
Generally speaking, we know of no other creatures that inhabit the earth than man and beast; and in all cases, where only two things offer themselves, and one must be admitted, a negation proved on any one, amounts to an affirmative on the other; and therefore, Mr. Burke, by proving against the Rights of Man, proves in behalf of the beast; and consequently, proves that government is a beast; and as difficult things sometimes explain each other, we now see the origin of keeping wild beasts in the Tower; for they certainly can be of no other use than to show the origin of the government. They are in the place of a constitution. O John Bull, what honours thou hast lost by not being a wild beast. Thou mightest, on Mr. Burke's system, have been in the Tower for life.
If Mr. Burke's arguments have not weight enough to keep one serious, the fault is less mine than his; and as I am willing to make an apology to the reader for the liberty I have taken, I hope Mr. Burke will also make his for giving the cause.
Having thus paid Mr. Burke the compliment of remembering him, I return to the subject.
From the want of a constitution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and the administration of them vague and problematical.
The attention of the government of England (for I rather choose to call it by this name than the English government) appears, since its political connection with Germany, to have been so completely engrossed and absorbed by foreign affairs, and the means of raising taxes, that it seems to exist for no other purposes. Domestic concerns are neglected; and with respect to regular law, there is scarcely such a thing.
Almost every case must now be determined by some precedent, be that precedent good or bad, or whether it properly applies or not; and the practice is become so general as to suggest a suspicion, that it proceeds from a deeper policy than at first sight appears.
Since the revolution of America, and more so since that of France, this preaching up the doctrines of precedents, drawn from times and circumstances antecedent to those events, has been the studied practice of the English government. The generality of those precedents are founded on principles and opinions, the reverse of what they ought; and the greater distance of time they are drawn from, the more they are to be suspected. But by associating those precedents with a superstitious reverence for ancient things, as monks show relics and call them holy, the generality of mankind are deceived into the design. Governments now act as if they were afraid to awaken a single reflection in man. They are softly leading him to the sepulchre of precedents, to deaden his faculties and call attention from the scene of revolutions. They feel that he is arriving at knowledge faster than they wish, and their policy of precedents is the barometer of their fears. This political popery, like the ecclesiastical popery of old, has had its day, and is hastening to its exit. The ragged relic and the antiquated precedent, the monk and the monarch, will moulder together.
Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.
Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.
If the doctrine of precedents is to be followed, the expenses of government need not continue the same. Why pay men extravagantly, who have but little to do? If everything that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case. Either, therefore, government has arrived at its dotage, and requires to be renovated, or all the occasions for exercising its wisdom have occurred.
We now see all over Europe, and particularly in England, the curious phenomenon of a nation looking one way, and the government the other--the one forward and the other backward. If governments are to go on by precedent, while nations go on by improvement, they must at last come to a final separation; and the sooner, and the more civilly they determine this point, the better.*[20] Having thus spoken of constitutions generally, as things distinct from actual governments, let us proceed to consider the parts of which a constitution is composed.
Opinions differ more on this subject than with respect to the whole.
That a nation ought to have a constitution, as a rule for the conduct of its government, is a simple question in which all men, not directly courtiers, will agree. It is only on the component parts that questions and opinions multiply.
But this difficulty, like every other, will diminish when put into a train of being rightly understood.
The first thing is, that a nation has a right to establish a constitution.
Whether it exercises this right in the most judicious manner at first is quite another case. It exercises it agreeably to the judgment it possesses; and by continuing to do so, all errors will at last be exploded.
When this right is established in a nation, there is no fear that it will be employed to its own injury. A nation can have no interest in being wrong.
Though all the constitutions of America are on one general principle, yet no two of them are exactly alike in their component parts, or in the distribution of the powers which they give to the actual governments.
Some are more, and others less complex.
In forming a constitution, it is first necessary to consider what are the ends for which government is necessary? Secondly, what are the best means, and the least expensive, for accomplishing those ends?
Government is nothing more than a national association; and the object of this association is the good of all, as well individually as collectively. Every man wishes to pursue his occupation, and to enjoy the fruits of his labours and the produce of his property in peace and safety, and with the least possible expense. When these things are accomplished, all the objects for which government ought to be established are answered.
It has been customary to consider government under three distinct general heads. The legislative, the executive, and the judicial.
But if we permit our judgment to act unincumbered by the habit of multiplied terms, we can perceive no more than two divisions of power, of which civil government is composed, namely, that of legislating or enacting laws, and that of executing or administering them. Everything, therefore, appertaining to civil government, classes itself under one or other of these two divisions.
So far as regards the execution of the laws, that which is called the judicial power, is strictly and properly the executive power of every country. It is that power to which every individual has appeal, and which causes the laws to be executed; neither have we any other clear idea with respect to the official execution of the laws. In England, and also in America and France, this power begins with the magistrate, and proceeds up through all the courts of judicature.
I leave to courtiers to explain what is meant by calling monarchy the executive power. It is merely a name in which acts of government are done; and any other, or none at all, would answer the same purpose. Laws have neither more nor less authority on this account. It must be from the justness of their principles, and the interest which a nation feels therein, that they derive support; if they require any other than this, it is a sign that something in the system of government is imperfect.
Laws difficult to be executed cannot be generally good.
With respect to the organization of the legislative power, different modes have been adopted in different countries. In America it is generally composed of two houses. In France it consists but of one, but in both countries, it is wholly by representation.
The case is, that mankind (from the long tyranny of assumed power) have had so few opportunities of making the necessary trials on modes and principles of government, in order to discover the best, that government is but now beginning to be known, and experience is yet wanting to determine many particulars.
The objections against two houses are, first, that there is an inconsistency in any part of a whole legislature, coming to a final determination by vote on any matter, whilst that matter, with respect to that whole, is yet only in a train of deliberation, and consequently open to new illustrations.
Secondly, That by taking the vote on each, as a separate body, it always admits of the possibility, and is often the case in practice, that the minority governs the majority, and that, in some instances, to a degree of great inconsistency.
Thirdly, That two houses arbitrarily checking or controlling each other is inconsistent; because it cannot be proved on the principles of just representation, that either should be wiser or better than the other.
They may check in the wrong as well as in the right therefore to give the power where we cannot give the wisdom to use it, nor be assured of its being rightly used, renders the hazard at least equal to the precaution.*[21] The objection against a single house is, that it is always in a condition of committing itself too soon.--But it should at the same time be remembered, that when there is a constitution which defines the power, and establishes the principles within which a legislature shall act, there is already a more effectual check provided, and more powerfully operating, than any other check can be. For example, Were a Bill to be brought into any of the American legislatures similar to that which was passed into an act by the English parliament, at the commencement of George the First, to extend the duration of the assemblies to a longer period than they now sit, the check is in the constitution, which in effect says, Thus far shalt thou go and no further.
But in order to remove the objection against a single house (that of acting with too quick an impulse), and at the same time to avoid the inconsistencies, in some cases absurdities, arising from two houses, the following method has been proposed as an improvement upon both.
First, To have but one representation.
Secondly, To divide that representation, by lot, into two or three parts.
Thirdly, That every proposed bill shall be first debated in those parts by succession, that they may become the hearers of each other, but without taking any vote. After which the whole representation to assemble for a general debate and determination by vote.
To this proposed improvement has been added another, for the purpose of keeping the representation in the state of constant renovation; which is, that one-third of the representation of each county, shall go out at the expiration of one year, and the number be replaced by new elections.
Another third at the expiration of the second year replaced in like manner, and every third year to be a general election.*[22] But in whatever manner the separate parts of a constitution may be arranged, there is one general principle that distinguishes freedom from slavery, which is, that all hereditary government over a people is to them a species of slavery, and representative government is freedom.
Considering government in the only light in which it should be considered, that of a National Association, it ought to be so constructed as not to be disordered by any accident happening among the parts; and, therefore, no extraordinary power, capable of producing such an effect, should be lodged in the hands of any individual. The death, sickness, absence or defection, of any one individual in a government, ought to be a matter of no more consequence, with respect to the nation, than if the same circumstance had taken place in a member of the English Parliament, or the French National Assembly.
Scarcely anything presents a more degrading character of national greatness, than its being thrown into confusion, by anything happening to or acted by any individual; and the ridiculousness of the scene is often increased by the natural insignificance of the person by whom it is occasioned. Were a government so constructed, that it could not go on unless a goose or a gander were present in the senate, the difficulties would be just as great and as real, on the flight or sickness of the goose, or the gander, as if it were called a King. We laugh at individuals for the silly difficulties they make to themselves, without perceiving that the greatest of all ridiculous things are acted in governments.*[23] All the constitutions of America are on a plan that excludes the childish embarrassments which occur in monarchical countries. No suspension of government can there take place for a moment, from any circumstances whatever. The system of representation provides for everything, and is the only system in which nations and governments can always appear in their proper character.
As extraordinary power ought not to be lodged in the hands of any individual, so ought there to be no appropriations of public money to any person, beyond what his services in a state may be worth. It signifies not whether a man be called a president, a king, an emperor, a senator, or by any other name which propriety or folly may devise or arrogance assume; it is only a certain service he can perform in the state; and the service of any such individual in the routine of office, whether such office be called monarchical, presidential, senatorial, or by any other name or title, can never exceed the value of ten thousand pounds a year. All the great services that are done in the world are performed by volunteer characters, who accept nothing for them; but the routine of office is always regulated to such a general standard of abilities as to be within the compass of numbers in every country to perform, and therefore cannot merit very extraordinary recompense.
Government, says Swift, is a Plain thing, and fitted to the capacity of many heads.
It is inhuman to talk of a million sterling a year, paid out of the public taxes of any country, for the support of any individual, whilst thousands who are forced to contribute thereto, are pining with want, and struggling with misery. Government does not consist in a contrast between prisons and palaces, between poverty and pomp; it is not instituted to rob the needy of his mite, and increase the wretchedness of the wretched.--But on this part of the subject I shall speak hereafter, and confine myself at present to political observations.
When extraordinary power and extraordinary pay are allotted to any individual in a government, he becomes the center, round which every kind of corruption generates and forms. Give to any man a million a year, and add thereto the power of creating and disposing of places, at the expense of a country, and the liberties of that country are no longer secure. What is called the splendour of a throne is no other than the corruption of the state. It is made up of a band of parasites, living in luxurious indolence, out of the public taxes.
When once such a vicious system is established it becomes the guard and protection of all inferior abuses. The man who is in the receipt of a million a year is the last person to promote a spirit of reform, lest, in the event, it should reach to himself. It is always his interest to defend inferior abuses, as so many outworks to protect the citadel; and on this species of political fortification, all the parts have such a common dependence that it is never to be expected they will attack each other.*[24] Monarchy would not have continued so many ages in the world, had it not been for the abuses it protects. It is the master-fraud, which shelters all others. By admitting a participation of the spoil, it makes itself friends; and when it ceases to do this it will cease to be the idol of courtiers.
As the principle on which constitutions are now formed rejects all hereditary pretensions to government, it also rejects all that catalogue of assumptions known by the name of prerogatives.
If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.
In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end.
He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing.
Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.
Some kind of official department, to which reports shall be made from the different parts of a nation, or from abroad, to be laid before the national representatives, is all that is necessary; but there is no consistency in calling this the executive; neither can it be considered in any other light than as inferior to the legislative. The sovereign authority in any country is the power of making laws, and everything else is an official department.
Next to the arrangement of the principles and the organization of the several parts of a constitution, is the provision to be made for the support of the persons to whom the nation shall confide the administration of the constitutional powers.
A nation can have no right to the time and services of any person at his own expense, whom it may choose to employ or entrust in any department whatever; neither can any reason be given for making provision for the support of any one part of a government and not for the other.
But admitting that the honour of being entrusted with any part of a government is to be considered a sufficient reward, it ought to be so to every person alike. If the members of the legislature of any country are to serve at their own expense that which is called the executive, whether monarchical or by any other name, ought to serve in like manner.
It is inconsistent to pay the one, and accept the service of the other gratis.
In America, every department in the government is decently provided for; but no one is extravagantly paid. Every member of Congress, and of the Assemblies, is allowed a sufficiency for his expenses. Whereas in England, a most prodigal provision is made for the support of one part of the Government, and none for the other, the consequence of which is that the one is furnished with the means of corruption and the other is put into the condition of being corrupted. Less than a fourth part of such expense, applied as it is in America, would remedy a great part of the corruption.
Another reform in the American constitution is the exploding all oaths of personality. The oath of allegiance in America is to the nation only.
The putting any individual as a figure for a nation is improper.
The happiness of a nation is the superior object, and therefore the intention of an oath of allegiance ought not to be obscured by being figuratively taken, to, or in the name of, any person. The oath, called the civic oath, in France, viz., "the nation, the law, and the king," is improper. If taken at all, it ought to be as in America, to the nation only. The law may or may not be good; but, in this place, it can have no other meaning, than as being conducive to the happiness of a nation, and therefore is included in it. The remainder of the oath is improper, on the ground, that all personal oaths ought to be abolished. They are the remains of tyranny on one part and slavery on the other; and the name of the Creator ought not to be introduced to witness the degradation of