Copyright
John Taylor.

Construction construed, and constitutions vindicated online

. (page 4 of 34)
Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 4 of 34)
Font size
QR-code for this ebook


gotten upon this ground, chosen by the advocates for sovereign-
ty, I now ask them to shew me the conventional sovereignty
for which they contend. Far from discerning any glimpse of
the powers of sovereignty in our constitutions, I see nothing
but long catalogues of limitations, restrictions, balances and



Digitized by



Google



\\



32

divisions of power» and if this young political family can bt
ground back into the old hoary traitor sovereignty, in the mill
of construction, it will be just reversing the ancient prodigy of
grinding old men into young ones.

nl do not however admit that ** sovere^ty and the right of
i self-government" are equivalent things, except it is supposed
that both reside in the people, and neither in a government
Under this supposition it follows, that sovereignty or self-go-
vemment are natural rights, and that governments cannot par-
ticipate of either, because their rights are all conventional*
This opinion is so firmly fixed in our country, however in some
cases exterior politeness may subsist with internal contempt,
or verbal concession with practical disavowal, that I may safely
assume the principle, that the right of self-government, and so-
vereignty also if it came from God, resides in the people. This
being a natural right, like the right to our own labour, no exist-
ing generation can deprive another of it, and convey it to kings
or governments, upon any better ground, than it could decree,
that the heads of all future generations, as fast as they arrived
to manhood, should be taken away from them. If no conven-
tional act can deprive man of life, liberty and property, and if
sovereignty in governments would have this effect, it follows
that sovereignty cannot be conventionally established ; and that
whether gentlemen deduce it from this source by hyperbolical
inferences, or from a divine origin, it is still a useless, foreign
and perplexing word to our political system. But supposing
the rights of sovereignty and of self-government to be insepa-
rably united with each other; and that a number of men assem-
bled to exercise one right, are also invested with the other ; yet
I see no reason why they may not establish a government with
limited powers, and retain this imaginary sovereignty if it ia
real ; and instead of , uniting with these limited powers, the
indefinite powers of sovereignty, agree that they shall be subor-
dinate to their will, restricted by their constitutional mandate,
and liable to their revision. This was actually done in the es-
tablishment of all our constitutions; and as these conventional
acts, far from bestowing sovereignty on governments, have
actually retained it in the hands of the people, if it existed at
all, and if sovereignty may have a conventional origin, it is so
deposited, I shall therefore disregard the distinction between



Digitized by



Google



33

the rights of soTereigntj and of self-goverament in the pro*
. gress of thk enquiry, and in accordance with common language^
use the term ** sovereignty'^ as an attribute of the right of self-
government; and only applicable to the people.

We must then return to the old idea of sovereignty^ in or-
der to compare it with the new one. The sovereignty of kings,
presumptuously derived from the same source, from which man-
kind derive the right of self-government, long puzzled philoso-
phers and patriots before it was exploded; but no sooner was
the usurpation wrenched from kings, but other men, with other
titles, seized upon it for their own use. Thus the enquiry glid-
ed into an immaterial controversy, and instead of considering
the question, whether any man or set of men ought to exercise
the absolute power of sovereignty, the only contest was, whe-
ther it ought to be exercised by a monarchy, aristocracy or a
republick. In such a contest the people could never gain any
t^id or permanent victory ; for, sovereignty was the prize of the
victor, in any event, at their expense. In England, it has cir-
culated among all these combatants. It has been exercised by
kings, by occasional aristocracies of barons, by lords and com-
mons, by the commons alone, and by a protector of the liber-
tks of England $ by governments, regal, aristocratical, elective
jad hereditary. All of them exercised its despotick powers;
granted franchises to the nation or to any section of it; bestow-
ed, revoked and modelled representation; created monopolies,
corporations and exclusive privileges, and managed commerce
as a means for defrauding labour and gratifying avarice. First
the barons, and th^i the lords and commons, transferred the
crown from one man or family to another; and finally, this fluc-
tuating sovereignty has settted, not upon the people, but upon
king, lords and commons, with a power unlimited, except as
lord Coke observes, that it is unequal to impossibilities. Its ca-
pacity to effect Mty political changes or innovations, is demon-
strated, by its having extended the power of a house of com-
mnns elected for four years only, to seven. These facts are
constructions of the wwd •* sovereignty," displaying the con-
sequences of its adoption into our political vocabulary. By
referring to the Si^^lish bo^s and practices, from which it is
borrowed, for its interpretation, it turns out to be synonimous
wUh despotism* fiow. then can it be incorporated with our
E



Digitized by



Google



S4

political system, without inyesting our governments with a
power of encroachment; without freeing them from constitu-
tional restrictions ; and without subverting the sovereignty of
the people? No English sovereignty regal, parliamentary or
republican, recognized sovereignty or a right to self-govern-
ment in the people. The long parliament loved sovereignty
as well as any other form of government All the usurpers of
sovereignty used favours and penalties to sustain it, and the ac-
ceptance of the former was a voluntary acknowledgment of a
right to bestow them. Among a people jealous of their liberty,
this mode for procuring a confession of the existence of a so-
vereign power in government, will undoubtedly be preferred
as the safest, and selected as the most successful ; but as it is
the most seducing and dangerous, it ought to be restrained wi&
the greatest circumspection. Exclusive privil^es will make
more proselytes to despotism, than the severest punishments.

But it may be objected, if sovereignty and despotism are
synonimous terms, that the sovereignty of the people is also
a despotism. The objection is answered by the following con-
siderations. If societies are instituted by consult, the ofcjee-
tion fidls, because the despotism objected is converted into free
will and in fact becomes the very opposite of despotism. If by
the majority; it is then to be considered, whether this species of
despotism or sovereignty, is preferable or not, to despotism or
sovereignty in one person or in a minority. An alternative*
arising from comparison, constitutes the scope for the range of
intellect In theory, it is probable that much fewer causes w91
exist, wtiich would induce the majority of a nation to invade
the rights of a minority, than such as solicit one or a few to in-
vade the rights of the nation or of some of its parts. In fact
the first have been extremely rare and evanescent ; the latter,
continual and lasting. It is true that many wise and good men,
whilst they intuitively admit the right of self-government to
reside in nations, suffer imagination to conjure up a tumultuous
populace, discharging its fury upon life, liberty and property,
and shrink from the terrifick spectre; whilst they cannot see
any danger in a sovereign government discharging its frauds
against liberty, property and individual happiness, by monopolies
and exclusive privileges. Such apparitions appeared to devout
men, and caused them to deprecate the introduction of religious



Digitized by



Google



35

freedoib. Thej were also seen by 'no small number during
pur revolutionaiy war« and eyen disfigured the declaration of
independence into an uglj monster. But having, in these cases,
rubbed off the rust, spread over the sovereignty of the people by
Ignorance and monopolies, it ought not to be lost under a new
incrustation composed of phantoms, kneaded by selfishness,
and spread by construction and inference. Let us recollect
that this composition, if left undisturbed, indurates with won*
derful celerity.

It is however superfluous to consider, whether the sovereign*
tj of the people is a better or worse political maxim, than the
sovereignty of the government; because the question to be set-
tled for q)plication as we proceed, is, which of these competitors
is sovereign in fact. If the government created the people, that
is, organized them into a nation, there can be no doubt but that
the government is sovereign. The kings of England had a
claim to sovereignty upon this ground. They created a nation
(lords and commons) by successive charters and franchises. But
4inhappily for the argument, our nation created their govern*
ments. Yet it sug^sts an observation of no little weight Had
the lords or commons, or bodies politick, or corporations, exer-
cised a right of creating other lords, or commons, or bodies poli-
tick, or corporations, it would have been a usurpation of the
king's sovereignty, and must gradually have subverted it. The
application of this remark is obvious.

It has been observed, that sovereignty implies a correspon-
dent inferiority ; and required, that the subject for a sovereign
power in our governments to operate upon, should be pointed
out. Does it reach the sovereignty of the people, or is the go-
Ternment only sovereign over itself? Is the foolish boast, '' I
alone am king of me," converted into sound sense, by being
applied to a state or federal government ? Our governments must,
if they are sovereigns, have the people, or only themselves for
subjects. To avoid a collision with the sovereignty of the peo-
ple ; to find subjects for the sovereignty of a government ; and
to avoid the absurdity of a sovereignty without subjects ; it has
been conceived, that some of our political departments are sove-
reigns over others, and one over all. This anomalous sovereign-
ty, whilst it pretends to respect, directly assails the sovereignty
nf the people., . AH our political departments hold their; power



Digitized by



Google



S6

under this authmtj, and not under the authority of the govern*
ment. But this new species of sovereignty proposes to take
away all its subjects from the sovereignty of the people, and
reduce it to the state of a king whose sovereignty was admitted,
but who had no subjects. The pope of Rome manages this afiair
admirably. When he wishes to get a troublesome bishop out
of his way, whom he fears puUickly to disgrace, he transfers
him to a cure of souls in foreign parts, where there are no souls
to cure ; still leaving to him the title of bishop. So if congress
have any sovereignty over the political departments called states,
the sovereignty of the people would lose a great portion of its
eure of souls, although congress should politely leave them l^eir
title.

Our state constitutions confer upon a state majority, a power
oyer every department of government, either directly by elec-
tion, or by an influehce over elective departments, entrusted
with appointments. In this elemental basis, we discern clearly
a positive conventional power, designed to exercise and to re-
tain the sovereignty of the people, or the right of self-govern-
ment; and we as clearly discover in the governments them*
selves, the subjects over which this conventional power was i/^
be exercised. The federal constitution established three con^"
ventional powers over the federal government, lodging one in
the majority of the people of each state ; anoMier in the state
governments, comprised in the appointment of federal senators ;
and a third in the state governments also, comprised in a mode
of amending tlie federal constitution. A conventional sove-
reignty being thus retained by the people over the state govern-
ments, and by the people and the state governments also, over
the federal government, neither of these governments can legi-
timately acquire any species of sovereignty at all, because it
would be contrary to the conventional sovereignty actually esta-
blished. The positive supervising powers bestowed by the com-
pact of the union, upon the state governments, over the whole
federal government, flatly contradicts the idea, that the same
compact designed constructively to bestow a supervising power
upon congress, a department only of the federal government,
over the state governments.

The divinity of sovereignty, and the natural right of self-go-
vernment, are therefore really the competitors for our prefei:-



Digitized by



Google



S7

ence* As the latter hss been evidently Reeled as the basis of
oar conventioflal associations, the former is the only foundation
upon whiefa any of our governnlents can establish a right to
sorereignty. Before the American revolution, the natural right
of self-government was never plainly asserted, nor practically
enforced ; nor was it previously discovered, that a sovereign
power in any government, Aether regal or republican, was in*
consistent with this right, and destructive of its value. Then
the divine sovereignty claimed by governments of every form,
was completely exploded or reclaimed by the natural or divine
tight of self-government, not to be again surrendered, but to be
retained and employed in creating and controling governments,
considered as trustees invested with limited functions, and not
as sovereigns possessing powers derived from that source of des-
potism.

The difference between the right of self-government, and the
90vereignty of governments, is very material. Under one prin-
ciple the people bestow limited powers ; under the other, they
receive limited franchises. The sovereigns of England sparing-
ly and partuiUy bestowed rights upon the people, and retained
all tiie powers they did not surrender. Here the people or the
states retain all the powers they have not bestowed. It would
be as absurd in the one case as in the othef, to infer from limited
grants, a transfer of the sovereignty itself. Whenever such in-
ferences were made, the king was substantially dep6sed, until
the inference itself was exploded; and similar inferences ^11
in like manner depose the sovereignty of the people here.

In the hurry of a revolution, before this subject had been well
considered, and in imitation of the English practice of receiving
franchises from kings, a bill of rights was annexed to several
of the state constitutions ; but it was soon discovered, that this
' was both superfluous and dangerous ; superfluous, as according
to the right of self*government, powers not bestowed, remained
with the people ; dangerous, as it seemed to imply that the peo-
ple, as in England, derived their rights from the government.
In England, residuary rights not granted, remained with the
government, and therefore it was iniportant to the people to
extend such grants as far as possible; here, such ungranted
rights remain also with the grantors, but these are the people.
l%is distinction put an end to the custom of annexing a bill of



Digitized by



Google



38

rights to state constitutions^ and caused a proposition of the
kind to be rejected by the sages, statesmen, and patriots, who
framed the constitution of the United States. It can only be
correct upon the ground, that neither the state nor federal gor
▼emments received any powers except as trustees, or specified ;
and of course it was thought that the term « sovereignty," and
its coadjutors *' supremacy and prerogative" were inapplicable
to our governments, and incapable of defeating the reason, upon
which a bill of rights was rejected. Otherwise, this rejection
most be considered as a stratagem (for they cannot be charged
with a want of knowledge,) invented by a considerable number
of our wisest and best men to enslave their country. «

The patience of tlie reader is solicited, whilst I am endea-
vouring to establish the principles by which we ought to be
guided in construing our constitutions. Unless this is done be**
fore we enter into that intricate field, as the soundest minds
cannot suddenly and intuitively understand new and intricate
questions, they will never be understood at all ; nor construc-
tion confined within any range. To prove that the right of self-
government, or sovereignty, if the right should be so called,
resides in the people, may be thought a waste of time, as it ig
generally admitted; but in my view it seemed necessary to con-
sider the point, both to sustain the arguments to be extracted
from it as I proceed ; and because an inattention to its conse-
quences has, I think, caused several unpremeditated deviations
from that loyalty to this primary principle of our whole political
system, which our governments both feel and profess.



Digitized by



Google



SECTION 4.

THE UNION.



Who made it ? ^ We, the people of the United States." But
who were they ? The associated inhabitants of each state» or the
unassociated inhalntants of all the states. This question is an
exposition, either of the ignorance or the design of construction*
If there is no difficulty in answering it, construction ought to
be lauded at for playing the fool ; but if it gives the wrong an-
swer, as supposing it to furnish contrary inferences to the right
one, it ought to be suspected of playing the knave. At least
an attempt to construe away a fact, known to every body, is a
very fine specimen of its character when aiming at an acces^on
of power. It has been imagined, that by considering the union
as the act of the people, in their natural, and not in their poli-
tical associated capacity, some aspect of consoUdation might be
shed over the country, and that the federal government might
thereby acquire more power. But I cannot discern that the
construction of the constitution will be affected in the smallest
degree, by deducing it from either source, provided a sound
au^rity is allowed to the source selected. Every stipulation,
sentence, word and letter ; and every donation, reservation, di-
vision and restriction, will be exactly the same, whichever'is
preferred. A man, having two titles, may distinguish himself
by which he pleases, in making a contract; and whichever he
uses, he remains himselfl So the people having two titles or
capacities, one arising from an existing association, the other
from the natural right of self-government, may enter into a com-
pact under either, but are themselves still ; and their acts are
equally obligatory, whichever they may select. Politicians may
therefore indulge their taste in deducing the constitution of the
union from either, but whichever they may fancy, no sound
ground will thence result for tiieir differing in the construction
of it.



Digitized by



Google



40

Nevertheless^ to take away the pretext, however unsnbstan-
tial« for a difterent construction of the constitution, oa account
of the capacity or title under which the pei^le acted in its es-
tablishment^ it is material to ascertain thi^ meaning of the phrase
« we the people of the United States;" towards which, let us
run over most of the state constitutions.
Mw Hampshire^ ** The people of this state have iht sole and
exclusive right of governing themselves as a free» sovereign
and independent state. Every subject of this state. In the
government of this state. The people inhabiting tiie terri-
tory formerly called the province of New Hampshire, do
hereby solemnly and mutually ugree with each otikr to form
themselves into a free, sovereign and independent body po-
litick or state. That the state may be equally represented.
I do swear that I will bear faith and true allegiance to ih€
state of New Hampshire."
Massaii^usetts. " The body politick is formed by voluntary as*
sociation of individtuils. The people of this commonwealth
have the sole right of governing themselves as a free, sove*
reign and independent state. The people do hereby mii-
tually agree with each other, to form themselves into a fireet
sovereign and independent body politick or state.*^
J\rew York. ** This convention, in the name and by the autho*
rity of the good people of this state. The l^;isktttre of &is
state. No members of this sMe shall be disfrsnchised* JDe^
legates to represent this state in the general congress of the
United States. Be it enacted by the people of the sta^"
Pennsylvania. ** We the people of the conlmonwealtk of Penn-
sylvania ordain. The legislature df a free state. All go-
vernment originates from the people and is founded in com-
pact only."
Delaware. *' The people of this staJte. The government shall
be called the Delaware state. The legislature of this state.
The general assembly of this stiAe. There shall be no es*
tablishment of any oi^ religious sect in this sto^e."
Maryland. <<11iepeopfe o/tftisjtoia ought to have the sole and
exclusive right 6f regulating the internal government thereof
The legislature of this state. The delegates to cong^-ess
from this state shall be chosen by yant ballot of both houses



Digitized by



Google



4t

of assembly. I will be faithful and bear true allegiance to
Hie state*^^

Virginia. " All power is derived from the people. Magis-
trates are their trustees or servants. A well regulated mi-
litia is the proper defence of a free state.^^

J^Torth Carolina. " The pe^le of this state have the sole and
exclusive right of regulating the internal government there-
of. Monopolies are contrary to the genius of a free state*
All commissions shall run in the name of the state of North
' Carolina. The legislature of this state. The constitution
of this stated'

South Carolina. ** The legislative authority of this state. The
several election districts in this state shall elect. The
style of process shall be " The state of South Carolina, and
conclude against the peace and dignity of the state.^^ 1
swear to preserve the con8titu1i(m of this state and of the
United States.^^

Georgia. "Members of the legislature shall swear to promote
the good of the state^ to bear true allegiance to the same,
and to observe the constitution. To make laws necessary
for the good of the state. Citiz^is and inhabitants of this
staU.^^

Vermont. "The people arc the sole source of power. They
have the exclusive right of internal government. All offi-
cers of government are their servants. Legislative and
executive business of this state. The people have a right^
to exact from their legislators and magistrates the good go-
vernment of the state. The l^slature of a free and sove^
reign state. Shall be entitled to all the privileges of a free-
man of this state. Every officer shall swear to be faithful
to the state of Vermont, and to do nothing injurious to the
constitution or government thereof."
Without further quotations, let us demonstrate the force of

these, extracted from a majority of the state constitutions, to

fix the meaning of the term " state" according to the publick

judgment, by substituting the word ** govemnient" for it They

would then read as follows."
" The people of this government have the sole and exclusive

" ri^t of governing themselves as a free, sovereign and inde-

•* pendent governments^
V



Digitized by



Google





•« In the government of this governments*^
" That the government may be equally represented*'*
<* The people of this government ought to have the sole and
* exclusive right of regulating the internal government thereof*^
«* The legislature of this governmentJ*^
" I will be faithful and bear true allegiance to ihegovemmmii.^^
« The several election districts in this ^^ovemmen^ shall elect"
** Members of the legislature shall swear to promote the good
*« of the goventment and to make laws for the good of the go-
•* vemment.'*^

** Citizens and inhabitants of this government?^ '
** The people have a right to exact from their legislators a»d
*^ magistrates the good government of the govemmeni.^^

^ Commissions shall be in the name of the freemen of the^-
«* vemmentJ^

It would be an incivility to the reader, to subjoin to these
quotations, many arguments, to prove, that the term " state"
is not in any one instance used in reference to all the people of
the United States^ either as composing a single state, or as being
about to compose a single state. Used geographically, it refers



Online LibraryJohn TaylorConstruction construed, and constitutions vindicated → online text (page 4 of 34)