第57章 Part the Second (15)
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.