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The defect was not in the principle, but in the distribution of
power.

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.



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