Part II: Chapter IV, 2

As soon as nine states had concurred (and the rest followed in the order in which their conventions were elected), the old structure of the federal government was taken down and the new one erected, with General Washington as president. Here I cannot help observing that this gentleman's character and service put all those men called kings to shame. While they receive from the sweat and labor of mankind a lavish payment to which neither their abilities nor their services entitle them, he renders every service in his power and refuses every monetary 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, believing that some parts of its own constitution needed alteration, elected a convention for that purpose. The proposed changes were published, and, with the people's agreement, were established.

In framing these constitutions, or altering them, there was little or no disruption. The ordinary course of life was not interrupted, and the benefits have been great. It is always in the interest of far more people in a nation to set things right than to leave them wrong; and when public affairs are open to debate and public judgment is free, it will not decide wrongly unless it decides too hastily.

In the two instances of changing constitutions, the governments then in office took no part on either side. Government has no right to make itself a party to any debate about the principles or methods of framing or changing constitutions. Constitutions, and the governments that arise from them, are not established for the benefit of those who exercise the powers of government. In all these matters, the right to judge and act belongs to those who pay, not those who receive.

A constitution belongs to a nation, not to those who exercise its government. All the constitutions of America declare themselves established by the authority of the people. In France, the word nation is used instead of the people; but in both cases, a constitution precedes the government and remains distinct from it.

In England it is easy to see that everything has a constitution except the nation. Every established society and association first agreed upon a set of founding articles, put into orderly form, that constitute it. It then appointed officers whose powers and authority are defined in that constitution, and only then did the government of that society begin. Those officers, whatever they are called, have no authority to add to, alter, or reduce the founding articles. That right belongs only to the power that constitutes the society.

Because they fail to understand the difference between a constitution and a government, Dr. Johnson and all writers of his kind have always confused themselves. They saw that a controlling power must exist somewhere, but placed it at the discretion of the people exercising government rather than in a constitution framed by the nation. When that power resides in a constitution, the nation supports it, and the natural and political powers of control are united. Laws enacted by governments control people only as individuals; the nation, through its constitution, controls the whole government and has the natural ability to do so. The ultimate controlling power and the original power to constitute are therefore one and the same.

Dr. Johnson could not have made such a claim in any country with a constitution; he himself is evidence that no such thing exists in England. Yet we may properly ask how, if there is no constitution, the idea that one exists became so widely accepted.

To answer this question, we must consider a constitution in both its capacities: first, as creating a government and granting it powers; second, as regulating and limiting the powers it grants.

If we begin with William of Normandy, we find that the government of England began as a tyranny founded on the invasion and conquest of the country. Once this is admitted, it becomes clear that the nation's efforts at different times to reduce that tyranny and make it less unbearable have been mistaken for a constitution.

Magna Charta, as it was called (it is now like an almanac from that year), did no more than compel the government to surrender some of its assumed powers. It did not create a government and grant it powers as a constitution does. To the extent that it accomplished anything, it was a kind of reconquest, not a constitution; for if the nation had wholly expelled the usurpation, as France has expelled its despotism, it would then have had a constitution to frame.

The history of the Edwards and the Henries, down to the beginning of the Stuarts, shows as many acts of tyranny as could be committed within the bounds the nation had imposed. The Stuarts tried to pass those bounds, and their fate is well known. In all these instances we see no constitution, only restrictions on power that had been seized.

After this, another William, descended from the same stock and claiming from the same origin, took possession; and of the two evils, James and William, the nation chose the one it considered lesser, since circumstances obliged it to take one. Here the act called the Bill of Rights comes into view. What is it but a bargain among the parts of government to divide powers, profits, and privileges? You shall have this much and I shall have the rest; to the nation it said, As your share, you shall have the right to petition. That being so, the Bill of Rights is more properly a bill of wrongs and insults. As for the so-called convention parliament, it created itself, then created the authority by which it acted. A few people assembled and gave themselves that name. Several had never been elected, and none had been elected for that purpose.

From William's time a kind of government arose out of this coalition called the Bill of Rights, and still more so after the corruption introduced at the Hanover succession through Walpole's agency, that can only be called despotic legislation. Its parts may obstruct each other, but the whole knows no bounds; the only right outside itself that it acknowledges is the right to petition. Where, then, is the constitution that either grants or restrains power?

The fact that part of a government is elective does not make it less despotic if those elected subsequently possess unlimited powers as a parliament. Election is then severed from representation, and the candidates are candidates for despotism.

I cannot believe that any nation reflecting on its rights would have thought to call these things a constitution had the cry of constitution not been raised by the government. It came into circulation like the words bore and quoz [quiz], chalked into parliamentary speeches as those words were chalked on window shutters and doorposts. But whatever the constitution may be in other respects, it has unquestionably been the most productive taxation machine ever invented. Taxes in France under the new constitution are not quite thirteen shillings per head,*18 while taxes in England under its so-called present constitution are forty-eight shillings and sixpence per head—men, women, and children—amounting to nearly seventeen millions sterling, besides collection costs of upwards of a million more.

In a country like England, where all civil government is carried out by the people of every town and county through parish officers, magistrates, quarterly sessions, juries, and assizes, without troubling what is called the government or costing the revenue anything beyond the judges' salaries, it is astonishing how such a mass of taxes can be spent. Not even the country's internal defense is paid from the revenue. On every occasion, whether real or contrived, new loans and new taxes are called for. No wonder a machine of government so profitable to the defenders of a court is so triumphantly praised! No wonder St. James's and St. Stephen's echo with the ceaseless cry of constitution; no wonder the French Revolution is condemned and the res-publica treated with contempt! The red book of England, like the red book of France, will explain why.*19

By way of a respite, I shall now give a thought or two to Mr. Burke. I ask his pardon for neglecting him so long.

“America,” he says (in his speech on the Canada Constitution bill), “never dreamed of such absurd doctrine as the Rights of Man.”

Mr. Burke presumes so boldly, and advances his assertions and premises with such poor judgment, that without troubling ourselves over philosophical or political principles, their merely logical conclusions are ridiculous. For instance:

If governments, as Mr. Burke asserts, are not founded on the Rights of Man, but are founded on rights of any kind, they must consequently be founded on the rights of something other than man. What, then, is that something?

Generally speaking, we know of no other creatures inhabiting the earth but humans and beasts. Where only two alternatives exist and one must be accepted, proving the negative of one proves the affirmative of the other. Thus, in arguing against the Rights of Man, Mr. Burke argues for the beast, and consequently proves that government is a beast. Since difficult things sometimes explain each other, we now see why wild beasts are kept in the Tower: surely their only use is to show the origin of the government. They stand in place of a constitution. O John Bull, what honors you have lost by not being a wild beast! Under Mr. Burke's system, you might have spent your life in the Tower.

If Mr. Burke's arguments are not weighty enough to keep one serious, the fault is more his than mine. I am willing to apologize to the reader for the liberty I have taken, and hope Mr. Burke will apologize for giving me cause.

Having paid Mr. Burke the compliment of remembering him, I return to the subject.

Because England lacks a constitution to restrain and regulate the wild impulses of power, many of its laws are irrational and tyrannical, and their administration uncertain and unpredictable.

Since its political connection with Germany, the attention of the government of England (I prefer that name to the English government) seems so entirely occupied with foreign affairs and the means of raising taxes that it seems to exist for nothing else. Domestic concerns are neglected, and regular law scarcely exists.

Almost every case must now be decided by a precedent, whether that precedent is good or bad, whether it properly applies or not. The practice has become so common as to suggest a deeper policy than first appears.

Since the American Revolution, and still more since the French, it has been the studied practice of the English government to preach the doctrines of precedents drawn from times and circumstances before those events. Most such precedents rest on principles and opinions opposite to what they ought to be; and the farther back they are drawn from, the more suspect they become. But by joining those precedents to a superstitious reverence for ancient things, as monks display relics and call them holy, the public is deceived into accepting the scheme. Governments now behave as though afraid to awaken a single thought in a human being. They lead him gently to the tomb of precedents to dull his faculties and draw his attention away from revolutions. They sense that he is gaining knowledge faster than they wish; their policy of precedents is a barometer of their fears. This political popery, like the religious popery of old, has had its day and is hastening toward its end. The ragged relic and the antiquated precedent, the monk and the monarch, will crumble together.

As soon as nine states agreed, the old federal government was taken apart and the new one set up. The remaining states joined as their conventions were elected. General Washington is president of the new government. Here I must point out that this man's character and service put everyone called a king to shame. Kings receive extravagant pay from other people's work and sweat. Neither their ability nor their service earns it. Washington does all he can for the public and refuses any payment. He took no pay as commander-in-chief, and takes none as president of the United States.

After the new federal constitution was established, Pennsylvania decided that parts of its own constitution needed changing. The state elected a convention for that purpose. The proposed changes were published, the people agreed to them, and they took effect.

Creating these constitutions, or changing them, caused little or no trouble. Daily life went on as usual, and the benefits have been substantial. Far more people in any country have an interest in putting things right than in leaving them wrong. When public affairs can be debated openly and people are free to judge, they will not decide badly unless they decide too quickly.

In both cases where constitutions changed, the existing governments took no part on either side. A government has no right to take sides in a debate about the principles or methods of making or changing constitutions. Constitutions and the governments created under them exist for the public, not for those who wield government power. In these matters, the right to judge and act belongs to those who pay, not those who receive payment.

A constitution belongs to a country, not to its officials. Every American constitution says it was established by the authority of the people. In France, they say “the nation” rather than “the people.” In either case, the constitution comes before the government and is always separate from it.

In England, it is easy to see that everything has a constitution except the nation. Every established society or association first agrees on a set of founding rules and puts them into written form. These rules are its constitution. It then appoints officers and describes their powers in that constitution. Only then does the society's government begin. Whatever these officers are called, they have no authority to add to, change, or cut back the founding rules. Only the people who established them have that right.

Dr. Johnson and writers like him have always confused themselves because they do not understand the difference between a constitution and a government. They saw that some power must ultimately control the government. But they put that power in the hands of government officials, rather than in a constitution made by the nation. When the power rests in a constitution, the nation supports it. The natural power of the people and the political power to control government then work together. Laws passed by governments govern people as individuals. The nation, through its constitution, governs the entire government, and it naturally has the ability to do so. The ultimate power to control government and the original power to establish a constitution are therefore the same power.

Dr. Johnson could not have made that claim in a country with a constitution. His claim itself shows that England has none. But there is a question worth examining: if there is no constitution, how did the idea that one exists become so widely accepted?

To answer, we must look at both things a constitution does. First, it creates a government and gives it powers. Second, it regulates and limits those powers.

Start with William of Normandy. England's government began as a tyranny built on the invasion and conquest of the country. Once we admit that, we can see that the nation's later efforts to reduce that tyranny and make it more bearable have been mistaken for a constitution.

Magna Charta, as it was called, is now about as useful as an almanac of the same date. It merely forced the government to give up some powers it had claimed. It did not establish a government and grant it powers, as a constitution does. To the extent that it achieved anything, it was a partial reconquest, not a constitution. If the nation had thrown off the usurped power completely, as France has thrown off its despotism, it would then have had to make a constitution.

The history of the Edwards and the Henries, down to the start of the Stuart dynasty, shows every kind of tyranny possible within the limits the nation had imposed. The Stuarts tried to go past those limits, with well-known results. In all these cases, we see no constitution, only limits on power that rulers had assumed for themselves.

Then another William, descended from the same family and making the same kind of claim, took power. Faced with two evils, James and William, the nation chose the one it thought less harmful, because circumstances forced it to choose one. This brings us to the act called the Bill of Rights. What is it but an agreement among the branches of government to divide powers, profits, and privileges? One side says, “You take this much, and I will take the rest.” To the nation it says, “Your share is the right to petition.” That makes it a bill of wrongs and insults rather than rights. As for the so-called convention parliament, it assembled itself and then created the authority under which it acted. A few people gathered and gave themselves that name. Several had never been elected, and none had been elected for that purpose.

Since William's time, a kind of government has grown out of this Bill of Rights, a bargain among those in power. This has become especially true since Walpole introduced corruption at the Hanover succession. Its only proper name is despotic legislation. Its parts may get in one another's way, but together they face no limits. The only right outside itself that it recognizes is the right to petition. So where is the constitution that either grants or limits its power?

Electing part of a government does not make it less despotic if those elected then hold unlimited power as a parliament. In that case, an election stops being representation. The candidates are competing for despotic power.

I cannot believe that a nation thinking seriously about its rights would call these arrangements a constitution if the government had not kept repeating the word. “Constitution” spread like “bore” and “quoz [quiz]”: politicians wrote it into their speeches just as people chalked those words on window shutters and doorposts. Whatever else this constitution may be, it is certainly the most effective tax-raising machine ever invented. Under the new constitution, taxes in France are not quite thirteen shillings per person,*18 while taxes in England under its so-called present constitution are forty-eight shillings and sixpence per person. That includes men, women, and children. The total is nearly seventeen millions sterling, plus more than a million in collection costs.

In England, people in each town and county do all the work of civil government themselves. Parish officers, magistrates, quarterly sessions, juries, and assize courts do it. The so-called government has no trouble doing that work, and the judges' salaries are its only cost to public revenue. It is astonishing, then, that it can spend such an enormous amount of tax money. The revenue does not even pay for the country's internal defense. Whenever an occasion arises, real or invented, the government turns to new loans and new taxes. No wonder the supporters of the royal court praise a system so useful to them! No wonder St. James's and St. Stephen's constantly echo with cries of “constitution”! No wonder they condemn the French Revolution and speak badly of the republic! England's red book, like France's, will show why.*19

For a change of pace, I will give Mr. Burke a little attention. I apologize to him for neglecting him so long.

“America,” he says in his speech on the Canada Constitution bill, “never dreamed of such absurd doctrine as the Rights of Man.”

Mr. Burke makes bold assumptions and states his claims and premises with so little judgment that their logical consequences are ridiculous. We need not even debate political or philosophical principles to see it. For example:

If governments are not founded on the Rights of Man, as Mr. Burke says, but are founded on some rights, they must be founded on the rights of something other than man. What could that something be?

As far as we generally know, the earth's creatures are either human beings or beasts. If only two choices exist and we must choose one, ruling one out proves the other. So when Mr. Burke argues against the Rights of Man, he argues for the rights of beasts. It follows that government is a beast. Sometimes one puzzle explains another: now we know why wild beasts are kept in the Tower. Their only possible use must be to show where the government comes from. They stand in place of a constitution. O John Bull, think of the honors you lost by not being a wild beast! Under Mr. Burke's system, you could have spent your life in the Tower.

If Mr. Burke's arguments make it impossible to stay serious, that is more his fault than mine. I am willing to apologize to the reader for taking this liberty. I hope Mr. Burke will apologize for giving me cause.

Now that I have given Mr. Burke the courtesy of remembering him, I return to the subject.

Because England has no constitution to regulate and restrain power's wild impulses, many of its laws are unreasonable and tyrannical. The way those laws are administered is uncertain and confused.

Ever since its political connection with Germany, the government of England—I prefer that name to “English government”—seems to have devoted itself entirely to foreign affairs and finding ways to raise taxes. It seems to exist for nothing else. It neglects affairs at home, and regular law scarcely exists.

Almost every case must now be decided by some precedent. It does not matter whether that precedent is good or bad, or even whether it applies. The practice is so widespread that I suspect a deeper policy behind it than is obvious at first.

Since the American Revolution, and even more since the French Revolution, the government of England has deliberately promoted precedents from before those events. Most of those precedents rest on principles and opinions opposite to the ones they should follow. The older a precedent is, the more suspicious it should be. But governments combine these precedents with superstitious respect for anything old. Like monks showing people relics and calling them holy, they deceive most people about their purpose. Governments now act as though they fear even one independent thought. They gently lead people to the tomb of precedents to dull their minds and turn their attention away from the revolutions around them. They know people are gaining knowledge faster than they would like. Their policy of invoking precedent measures their fear. This political form of papal rule, like the old religious one, has had its time and is on its way out. The worn-out relic and the outdated precedent, the monk and the monarch, will crumble together.