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Construction construed, and constitutions vindicated online

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variety of titles, is united in the support and defence of the
government, whatever it may do, as being dependant upon it
for all the privileges, however denominated, enjoyed by its
&vour. These dependant orders are even better props of an
oppressive government than a hereditary nobility. Accordingly,



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20

they are more ardent in defence of political severities, and
more rapidly create the evil of excessive taxatiw, than the
orders of ancient coinage. Hereditary titles were more honor-
able than lucrative, embraced and coBnipted fewer individuals,
and extorted less from the savings of industry, than depen-
dant privileges entirely mercenary,: and only capable of being
fostered by perpetual drafts from the 'majority of nations.
Andy therefore, the latter have accomplished in England a de-
gree of oppression, which the former could never effect. Did
our revolution meditate an intermediate order between the go-
vernment and the people ? Are not privileged mercenary com-
binations, dependant on the government, both such an order,
and of the worst species ? Have we then adopted the essence
of James's maxim, and subscribed to the opinion, " no exclusive
privileges, no republick?"

During* the reigns of the Stuarts, there existed two kinds of
puritanism; one for purifying religious, the other for purify-
ing civil government. The natural affinity between the two
ob^pts, combined the individuals devoted to each ; and {^though
the imperfect state of political knowledge, and a spirit of
fanaticism obstructed their efforts, and prevented their com-
plete success, yet the English weie indebted to this double
^pulse .for some accessions both of civil and religious liberty,
which«coi)^titutedr a platform upon which we have raised a more
perfect superstructure. The civil and religious patriots of that
period were united by the conviction, that ,a despoHck power
over the mind will ab^rb a despotick power Over prop^rty^ ^
and that a despotick power over property will absorb a des-
potick power over the mind. The English government, by^
retaining such a power over property, has been enabled to retain
a similar power over the mind. Our revolutionary patriots
evidently entertained the same opinion, and therefore endea^
voured to destroy both kinds of despotism ; and their cpmplete
success in the establishment of religious freedom, ought not to
raider the freedom of property hopeless, espemally when it is
considered, that if the latter is impracticable, the focmer, in
time, will become abortive. The consideration of the princi-
ples of our revolution will be resumed in several of the suc-
ceeding sections.



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SECTION S.
CONSTRUCTION.

It is necessary^ before I proceed, to appn^riateH stioft ac-
tion to thig art or artifice. There are two kinds of dmstructioii}
one calculated to maintaiii, the other to corrupt tir destH>jr tiie
principles upon which governments are esiabUshed ; one tris^e
to common sense, the other cotisisting of filaments so slender^
as not to be seen except through some magnifyiug glass; one
which addresses the understanding the other which addresses
/ ^ejudice or seif*interest. When a njan spKts his mind, and
glues one haSf to certain principles^ and the other to a mpde of
construction, by which the same principles are subverted, it is
no easy matter to find arguments which will {deaseboth hidves.
There was in old times a God, said by bis worshippers to be
Mind and lame and foolish, but who seems to me to be more
quick'Sighted, active and acute in the arts of eoiistruction than
Minerva herself. But his inspirations are unhappily partial ;
for, if tM3 deity would but open the eyes* of every one to his
own interest, the m6de of t^nstitictibn most conducive to the
general interest would be elected by a repuUican majority.

Next to this influence over construction, is that of govern^
ments. In all, except our own, the pe<^e have nothing to do
with it ; but ours is modelled With an intention that they should
hav0 ntuchto do with it; and what is better for current use,
tt^tt the members of the government themselves shall be
strongly induced, individually, to give it fair play. But as the
pride of power, the temptations of self-interest, and ev^n th«
consciousness of good intentions, might crwjk or sharpen this
terrible weapon, those invested with most power, hold theit
offices for short periods ; and are exposed to frequent returns
to private life ; that the people might straighten or blunt its
edge occasionally. This dependance, and our affection for
eUldrea and relatiims, whose fate we are dealing ooti unite to



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22

chasten and restrain the unlimited power of construction ; and.
though the solicitations of pride, vanity, or avarice, may in a
few cases prevail, yet, under our form of government, a great
majority of legislative bodies must feel an honest loyalty to
correctness.

All other governments, as expositors of power, are influenced
/ by motives exactly the reverse of these. With them, construc-
tion is not a science to preserve the rights of mankind, but an
art for extending their own power. Its business is to forge wealth
for individuals or combinations, and chains for majorities : To
make payment for usurpations, in fulsome flatteries, and insi-
dious projects: To substitute successive, vacillating, eccentrick
meteors, for steady planets of fixed orbits : To promise future
blessings for present innovations, with the* prophetical truth of
those prospective chronologists, who have so often foretold the
arrival of the millenium : And to furnish parties, factions,
combinations and individuals, with concealed dirks to stab
liberty. •

The framers of our constitutions exerted all their faculties,
to exclude from our policy this pernicious species of construc-
tion, by specifications and restrictions. Its wonderful acute-
ness in misinterpretation, was understood, and sedulously
guarded against. It had often perverted the Scripture, and
converted patriotism into treason. Russel and Sidney fell
under the ed^e of constructive treason. The day on which
the former was beheaded, the wise and learned university of
Oxford, convinced by its doctors in the art of construction,
declared every principle by which a free constitution can be
maintained, to be " impious and heretical,'^ especially the doc-
trine, that **all civil authority is derived from the people."
Sidney had maintained it Thence it was inferred, that he
meant to excite the people to enforce it ; that this would cause
insurrection ; that insurrection was treason ; and that Sydney
was therefore guilty of treason. He had also asserted,, that
tyrants ought to be deposed and punished, as in the cases of
Nero and Caligula. Thence it was inferred, that he was
a traitor in imagining, that tiie king of England, if a tyrant,
might be justly deposed and punished. Which can do most
harih tomankind^ constructive treasons or constructive powers?
The fir§t takes away the life of an individual, the second des-



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25

troys the liberty of a nation. The machine called inference
can act as extensively in one case as in Ihe other. A govern-
ment, by an unlimited power of constructioni may stretch con-
stitutions as Jeffiies did laws, or interpret them as synods do
scripture, according to the temporal interest of the predomi-
nant sect. Yet it often happens, that whilst our hea^ glow
on recollecting the political and religious martyrs, who have
fallen by the edge of this destructive weapon ; our heads freeze
when it is applied to our constitutions, by forgetting its ability
to destroy the political as well as the natural body.

The Stuart family, in three successive reigns, pertinaciously
adhered to the ingenuity of conceding principles, and then con-
struing them away. Thas they craftily endeavoured to extend
their powers ; and two of them paid the forfeits of the experi-
ment. An admission of a line of separation between tlie
powers of the state and federal governments, followed with its
obliteration with the sponge of inference, would bear a close
resemblance to many of the stratagems practised by this con-
struing family.



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SECTION 3.
SOVEREIGNTY.

I DO not know how it has happened, Ihat this word has crept
into our political dialect, unless it be that mankind prefer mys-
tery to knowledge; and that governments love obscurity better
than specification. The unknown powers of sovereignty and
supremacy may be relished, because they tickle the mind with
hopes and fears ; just as we indulge the taste with Cayenne
pepper, though it disorders theliealth, and finally destroys the
body. Governments delight in a power to administer the palat-
able drugs of exclusive privileges and pecuniary gifts; and
selfishness is willing enough to receive them ; and this mutual
pleasure may possibly have su^ested the ingenious stratagem,
for neutralizing constitutional restrictions by a single word, as
a new chymical ingredient will 6ften change the effects of »
great mass of other matters.

Neither the declaration of independence, nor the federal con-
stitution, nor the constitution of any single state, uses this
equivocal and illimitable word. The first declares the colonies
«' to be free and independent states." The second is ordained
to "secure the blessings of liberty tci ourselves and our poste-
rity :" And the rest recognize governments as " the servants
of the people." In none, is there the least intimation of a
sovereign power ; and in all, conventional powers are divided,
limited and restrained. There is, I believe, an instance in a
bill of rights, in which a state is declared " to be free, sovereign
and independent.'? But it was the state and not its govern-
ment which was the object of this declaration ; and the refer-
ence was to other nations. The language of all these sacred,
civil authorities, is carefully chastened of a word, at discord
with their purpose of imposing restrictions upon governments,
by the natural light of mankind to establish societies for them-
selves. It could not be correctly used as a vehicle of power,
D



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either external or internal. The idea of investing scrvanta
with sovereignty, and that of investing ourselves with a sove-
reignty over other nations, were equally preposterous. Sove-
Vreignty implies superiority and subordination. It was therefore
inapplicable to a case of equality, and more so to the subordi-
nate power in reference to its creator. The word being rejected
by our constitutions, cannot be correctly adopted for their con-
struction ; because, if this unanimous rejection arose from its
unfitness for their design of defining and limiting powers, ita
interpolation by construction for the purpose of extending
these same powers, would be an evident inponsisteucy. It
would produce several very obvious contradictions in our poli-
tical principles. It would transfer sovereignty from the people^
(confining it to mean the right of self-government only,) to their
own servants. It would invest governments and departments,
invested with limited powers only, with unspecified powers. It
would create many sovereignties, each having a right to deter-
mine the extent of its sovereignty by its own will. And if two
sovereignties over the same subjects could never agree, it would
propose for our consideration what was to be eiqpected from an
army of sovereignties. Our constitutions, therefore, wisely
rejected this indefinite word as a traitor of civil rights, and
endeavored to kill it dead by specifications and restrictions of
power, that it might never again be used in political disquisi-
tions.

In fact, the term ** sovereignty,'* was sacrilegiously stolen
from the attributes of God, and impiously assumed by kings.
Though they committed the theft, aristocracies and republicks
have claimed the spoil. Imitation and ignorance even seduced
the English puritans and the long parliament to adopt the des-
potism they resisted ; and caused them to fail in accomplishing
a reformation for which they had suffered the evils of a long
war. By assuming divine rights, because they had been claimed
popes, and drawing powers from an inexhaustible
hey aggravated the tyranny they intended to des-
3rited the fate which they finally experienced,
and synods snatched the keys of Heaven from
ihops, and the long parliament, those of property
ig ; and both demonstrated whaf man would do
ers of Providence. By our constitutions, we re-



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jected the errors upon which oar forefathers.had been wrecked,
and withheld from oar governments the keys of temporal and
eternal rights, by usurping which, their patriots had been con-
verted into tyrants ; and invested them only with powers to
restrain internal wrongs, and to resist foreign hostility ; with-
<>ut designing to establish a sovereign power of robbing one
citizen to enrich another.

Sovereignty is neither fiduciary nor capable of limitation.
Accordingly, the long parliament asserted, that *' there were
two sovereignties in England, their's and the king's," and left
us a specimen of what may be expected from two sovereignties
here, state and federal. Two sovereignties or supremacies
over the same subjects have often appeared. Two or more
emperors frequently existed in the Roman empire, each claim-
ing the absolute powers of sovereignty. Several popes have
existed at the same time, each claiming the absolute powers of
supremacy, and both pretending to keep the keys of Heaven«
But sovereignty being by its nature a unit, its division implied
usurpation, and therefore the king, the parliament, the empe-
rors and the popes, in exercising it, were all usurpers; and
hence an allotment or division of the powers of sovereignty by
our governments among themselves, would also be an usurpa-
tion. If we must use terms, taken from the deity to adorn
the brows of men, we cannot still divest them of their mean-
ing ; and as sovereignty implies individuality, we are reduced
to the necessity, to satisfy its meaning, of looking for this
essential quality. I admit that it may be found among us,
either in congress or in the people j but I deny that it can exist
in both. Chastened down to the signification of a natural
right in nations to institute and limit their own governments,
it only embraces the principle by which alone social liberty can
be established ; extended to the idea of a power in governments
to regulate conscience or to distribute property at its pleasure,
it includes the principle by which social liberty H destroyed.

Oppression is universally caused by pecuniary fanaticism.
If the proposition be true, the remedy is indicated. Does the
indication point to a sovereignty in governments over property,
or to its security agunst a power so despotick ? As the evil
has eluded and corrupted all political theories hitherto, it re-
quired a remedy at its root Sovereignty was its root, and we



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endeavoured to eradicate it by establishing goTemments inves-
ted with specified and limited powers. But the evil» restless
and persevering, requires a perpetual activity and jealousy on
the part of nations, to keep it from shooting up new scions.
Wi" Protean and plausible, its shrubs must be grubbed up as they

appear, or they will soon grow into trees. As the love of
wealth is common to all civilized men, and governments are
composed of men, laws to protect the properly of nations
against governments are as necessary, as laws to protect the
property of one man against another. Jngurtha's exclamation
against the government of Rome was foolish. The influence
of avarice even at that early age was not a novelty. What
ground then was there for surprise, because * Rome was for saleP
The government exercised an absolute power over tiie national
property. How then could he have doubted, whether this
power could find purchasers ? I discern no age, no country, no
government, wherein these sales of the rights and properties
of mankind have not abounded. Though the modes of this
political traffick are multifarious, yet the result is as certain
as a mathematical conclusion ; and a remedy which can reach
all modes can only bc^ effectual.

Lycurgus, sensible of the cause by which governments were
corrupted, excluded it entirely ; and surrendered the amemties
of life, the acquisition of knowledge^ the elegancies of taste,
the fine arts, the circle of the sciences^ and almost civilization
itself; because he computed a loss so enormous as a cheap sa-
crifice, to get rid of fln evil so calamitous. The Athenians;
unwilling to surrender the blessings of life, but sensible of the
evil, endeavoured to restrain it, by the ineffectual expedient of
the ostracism. The Romans long resisted the avarice of the
senate, vainly depended upon elective tribunes to abolish
frauds in which they participated, and at length fled from the
avarice of many, to the avarice of one. The ignorant northern
conquerors saw no better remedy against oppression, than to
yield the utmost scope to the principle of sovereignty, by an
absolute transfer of themselves and their proper^ to feudal
kings and barons. As the Europeans became more enlightened,
they became sensible of the tyranny of avarice, and aft^a
series of ineffectual stru^les to emancipated themselves fnusi
its grasp, have only changed the form of its operation, wit^Jiaut



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29

diminishing its oppressions. England, the most successful in
theory, has nothing to boast of in practice ; and even the im«
proyements in the form of her government, have become instru-
ments for avarice, by which it has effected as much at least as
the feudal system could accompliph* By the confidence deri-
ved from representation, united with the power of a sovereignty
in the government over property, avarice is enabled to draw
from the people all they can possibly sp^ire. Thus they owe
to the wisest political discovery, the greatest political evil ; and
representation itself, the last refuge of hope, is contaminated
and rendered abortive, by its union witii a sovereign power over
property. The means used by a sovereignty in the English
government, are monitors to us. They consist of a long cata-
logue of exclusive privileges, and legal donations, bestowed by
the power of sovereignty, and taken from private property.
The nation, tutored by the domestick usurpations of sovereignty,
have been taught to believe, that it was as right to sacrifice
foreign nations to its own avarice, as it was, that themselves
should be sacrificed, to the avarice of domestick combinations ;
and have suffered a second series of calamities from the same
unjust principle, because the spoils of oppression are always
intercepted by the instruments for inflicting it. The same
thing arises universally from tiie most specious domestick
combinations, under pretence that they will advance tiie national
good. The managers of the pretext absorb its fruits, and the
majority of the nation get regret for their loss. The people of
England have gazed at the wealth amassed by the bounties,
the pensions, the monopolies, the exclusive privileges, the tithes^
and the contracts of their sovereign government, until, being
undeluded by the argument of sensation, and deceived no lon-
ger in the promises of projects to dii^se blessings, they are
only restrained from subverting society itself by the force of
a mercenary army.

A love of property is the chief basis of civil society ; but
like all other passions it ought to be regulated and restrained,
to extract from it the benefits it can produce, and to counter-
act the evils it can inflict. All honest politicians have acknow-
ledged the necessity for constitutional restrictions, to curb the
fanaticism of ambition ; and as the love of wealth is a passion of
^der influence, being often even the primary motive by which



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ambition itself is awakened, that also demanded constitutional'
restrictions, at least as forcible, to operate upon the individuals
who composed a government. If a society is so constituted,
as to invest a government with a sovereign power over property,
restrictions upon the passion of ambition must become abortive,
because the government will possess the means by wliich it is
excited and nourished*

The distribution of wealth can only be regulated by industry,
by fraud or by force* Fraud and force are of equal weight in
the scales of justice. Theoretically, they are of the same cha-
racter ; practically, fraud has been by far the most pernicious^
in distributing property. Yet pecuniary fanaticism or exck-
eive privileges, can abhor a resort to force, and admire a resort
to fraud for the same purpose. What could be objected to the
exercise of a sovereignty in the people, forcibly to distribute ,
property? Nothing stronger than may be objected to a sove-
reignty in the government, to do it fraudulently. If pecuniary
morality, or the freedom of property is the basis of a good
government ; and if a distribution of property by the power of
the government or even of the people would designate a bad
one; no remedy which would reach only half the evil, could
make the government good. If it deprived (he people of this
pernicious power and gave it to the government, or if it depri-
ved the government of the power, and gave it to the people,
the social principles would either Way be imperfect, because
neither expedient would be bottomed upon the natural right
of mankind to the fruits of their own labour. We must ex-
tract principles from facts, and the experience of the whole
world supplies them in abundance. England alone, the admir-
ed model of a sovereignty in government over property, sup-
plies facts enough to establish the principles, and to justify the
conclusions for which I have contended ; and would prove,
that an artificial sovereignty for taking away that which belongs
to others, cannot be better, than a natural sovereignty, for keep-
ing that which belongs to ourselves.

The use of a hyperbolical word, su^ested by a laudable zeal,
has exposed pliilosqphers to some degree of ridicule ; and their
exertions for benefiting mankind, have been considerably coun-
teracted, by insisting upon our « perfectibility." If the exagge-
rated word "sovereignty" can he successfully used to disencum-



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ber our governments in general, or the federal government in
particular^ of the restrictions imposed upon them by the people ;
it would be peculiarly hard, that one extravagant word should
arrest the improvement of man's state, and also that another
should deprive him of. the improvements he has made ; though
both as being hyperbolical, would seem to merit an equal share
of ridicule.

Sui^ose, however, we admit the hyperbolical claim of sove«
reignty to divine origin, and concede the consequence, that
as its origin is divine, its powers must be boundless ; it will
then be necessary to enquire upon whom the splendid donation
has been bestowed^ whether on kings, on governments, or on
the people ; on one man, on a few men, or on all men* Now,
as the two first of these competitors are artificial bein^, and
the last only natural beings ; and as we know of no other
channel, except that of nature, through which this divine boon
has been conveyed ; and as mental and bodily facultiesj common
to all men, are the only evidences of it ; the enquiry would
seem very clearly to terminate in the conclusion, that the rodo*
montade ** I alone am king of me'' was considerably more mo«
dest, than that other, now ^^ontended for, " I alone am king of
you/'

This is a concession conformable to the doctrine of the
hi^est-toned advocates for sovereignty which have ever ap-
peared ; but it would be uncandid to confine the enquiry to a
ground which would only propose for our election, liberty on
one. hand, or the utmost conceivable degree of despotism on the
other. The modern and more moderate advocates of sove-
reignty have ceased to contend for its divine origin ; and have
rather stru^led for its powers, than defended the genealogy so
much insisted upon by their predecessors. They seem tacitly,
but by no means plainly, to admit that sovereignty is not a
divine, but a conventional right. They ,must assume pne of
these grounds in asserting the sovereignty of governments, and
as the latter is the strongest, I will yield it to them. Having



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 3 of 34)