with Notes of Reference (1803)
St. George Tucker
Comparison to British Constitution; House of Commons and House of Lords
In the course of this investigation I shall select those parts of the constitution of the British parliament, which in the opinion of one of its ablest advocates, constitutes it’s superior excellence, and not unfrequently quote his opinions in his own words. To these I shall occasionally oppose the sentiments of later writers of his own country, on the same subject; the maxims of our own government, or the adaptation of those of the British government to the constitution of the United States: by these means I apprehend a fair comparison of their respective merits, as tending to promote the liberty and general happiness of the community, may be made.
I. The constituent parts of the British parliament, are, the house of commons, the house of lords, and the king, sitting there in his royal political capacity, in the union of which three estates the body politic of the kingdom consists. Analogous to which, though very differently constituted, we have seen the house of representatives and senate of the United States, and sub modo the president of the United States forming the general congress, or the supreme political legislature of the federal government. Thus far the great outlines of both governments appear to run parallel: they will however upon a nearer scrutiny be found frequently to diverge. We shall begin with the house of commons, which forms the democratical part of the British constitution.
“In a free state” says the author of the commentaries “every man who is supposed a free agent, ought to be in some measure his own governor, and therefore a branch at least of the legislative power should reside in the whole body of the people. In so large a state as Britain, therefore, it is very wisely contrived that the people should do that by their representatives, which it is impracticable to perform in person; representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished.”96 He adds, elsewhere, “in a democracy there can be no exercise of sovereignty, but by suffrage, which is the declaration of the people’s will. In all democracies, therefore, it is of the utmost importance to regulate by whom and in what manner the suffrages are to be collected. In England where the people do not debate in a collective body, but by representation, the exercise of this sovereignty consists in the choice of representatives.”97
Such are the principles laid down by this distinguished writer, from whence one would be led to conclude that the elections for members of the house of commons were regulated in a manner as conformable thereto as possible. That where there was an equality of right, an equality of representation would also be found; and that the right of suffrage would be regulated by some uniform standard, so that the same class of men should not possess privileges in one place, which they are denied in another.
1. By equality of representation, it will be understood, that I mean the right which any given number of citizens possessing equal qualifications in respect to the right of suffrage, have, to an equal share in the councils of the nation by their representatives, as an equal number of their fellow citizens in any other part of the state enjoy.
In England and in Wales there are fifty-two counties, represented by knights,98 elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part, or supposed trading part of the nation …. The whole number of English representatives, is 513 and of Scots, 45. The members of boroughs now bear above a quadruple proportion to those for counties: from whence one would, at first, be apt to conclude, that the population or at least the number of electors in the counties were equal; and, that the boroughs were at least four times as populous as the counties, collectively. The former of these suppositions would be perfectly unfounded in truth; the latter perhaps may approach nearer to it. In truth, were the latter supposition well founded, the equality of representation would not be much advanced by it… In London which is supposed to contain near a seventh part of the number of the inhabitants of all England, they are entitled to four members only in parliament. The inconsiderable borough of Melcomb Regis in Dorsetshire sends as many. Manchester and Birmingham, two large populous, flourishing, manufacturing towns have no representative, whilst the depopulated borough of Old Sarum, without a house or an inhabitant, is the vehicle through which two members obtain their seats in parliament; a representation equal to that of the most populous county.
Many other corresponding instances might be adduced to prove the inequality of representation; but they are unnecessary …. In America the representation is in exact proportion to the inhabitants. Every part of the states is therefore equally represented, and consequently has an equal share in the government. Here the principle that the whole body of the people should have a share in the legislature, and every individual entitled to vote, possess an equal voice, is practically enforced…. In England it is a mere illusion.
It is but justice to acknowledge that attempts have repeatedly been made, to effect a reform in this part of the British constitution: the voice of the nation has more than once loudly demanded it… but their rulers, like the god Baal, have been otherwise employed; or deaf, or peradventure asleep, and could not be awaked.
2. As to the right of suffrage in the individual, nearly the same principle seems to prevail in respect to the qualification in lands, in both countries; and the different manner of ascertaining it, is not sufficient to require any remark. I shall only observe that copy-holders, whose interest, in almost every other respect in their lands, seem to be equal to that of a free-holder, (at least, such as have inheritances in them) are not admitted to the tight of suffrage. The proportion of copy-holders for life; or of inheritance, to the freehold tenants of the counties, I have never heard estimated: it is, however, very considerable.
“The right of voting in boroughs is various,” says Blackstone, “depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes.” It may vary no less perhaps in the different states of America, but there is this advantage, that however various, there can be little room for doubts, or disputes on the subject. In Virginia the qualification to vote in boroughs, is as fixed and invariable as in the counties. One principle however must not be lost sight of; which perhaps should have come under the last head. No borough can ever be entitled to a representative, whenever the number of inhabitants shall, for the space of seven years together, be less than half the number of the inhabitants of any county in Virginia. In England the boroughs retain the right of representation, as we have seen, even after they have lost their inhabitants. Another circumstance respecting them is no less notorious; though the right of suffrage is in the burgher, the power of sending the member to parliament is in the lord of the soil; a number of the boroughs being private property, and the burghers, who are tenants, bound to vote as their lord shall direct: the shadow of the right of suffrage is all these burghers possess…. to the exercise of that right they are as much strangers, as to the pyramids of Egypt, or the ruins of Palmyra. It is scarcely possible that the electors of America should ever be degraded to a similar state of political mechanism.
3. The qualification of the members is the next object of our comparison. In England a knight of the shire must possess an estate in lands of the value of 600£ sterling, per annum, and a member for a borough of one half that value, except the eldest sons of peers; and of persons qualified to be knights of shires, and members of the two universities.
This at first view appears to be a proper and necessary precaution, as far as it extends, to secure the independence of the members of that branch of the legislature. But this argument is neither conclusive in fact, nor even in theory. Neither of these sums is an adequate support for a man moving in the rank of a member of the British parliament. Luxury has taken too deep root in the nation to authorize the supposition generally; and if it fails in general, it is of little avail that a few instances may be found of persons in that sphere, whose expenses do not exceed the requiste qualification in point of fortune. But if the principle be admitted that an independent fortune be necessary to secure the independence of the member in his legislative conduct, it would seem that the measure ought to be the same to all the members, since, according to the doctrine laid down by our author, a member though chosen by a particular district, when elected, serves the whole realm, the end of his election not being particular, but general. An equality of qualification should then have taken place; and if 600£ is necessary to secure the independence of the member, those who possess but half as much ought to be excluded; on the other hand, if 300£ be a competent sum for that purpose, how injurious must that law be to the rights of the citizen, which requires the qualification which is acknowledged to be sufficient for every good purpose, to be doubled. But a qualification in respect to estate is neither equally nor
uniformly required; if the member elected should happen to be the eldest son of a peer, or of a person qualified to be, knight of the shire; in either of these cases it is altogether dispensed with. The effect of this, as it respects the former of these classes of men, we shall speak of hereafter. As to the latter, it is sufficient to say, that presumption is allowed to supply the place of evidence; and both the exceptions prove the deviation from the general principle to have originated in the influence of the aristocratical interest of the nation.
In America no qualification in point of estate is required in the representative in congress by the constitution; and perhaps we may with some propriety insist that any such qualification would be not only unnecessary, but contrary to the true interests of their constituents. In England the interests of the crown, of the nobles, and of the people, are confessedly distinct and often diametrically opposite. In America all are citizens possessing equal rights, in their civil capacities and relations; there are no distinct orders among us, except while in the actual exercise of their several political functions. When the member quits his seat, or the magistrate descends from the bench, he is instantly one of the people. The pageantry of office reaches not beyond the threshold of the place where it is exercised; and civil distinctions privileges or emoluments independent of the office are interdicted by the principles of our government. To secure the independence of the members conduct, perhaps no previous qualification, in point of estate may be requisite; though such a qualification might for another reason have been not improper: that by sharing in the burdens of government, he might be restrained from an undue imposition of them upon his constituents. The law of the state indeed requires that the representative should he a freeholder, as well as a resident in the district; but both these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory, should any man
possess a sufficient influence in a district in which he neither resides nor is a freeholder, to obtain a majority of the suffrages in his favor. But how strong soever the reasons in favor of a qualification in point of estate might have been, on the grounds last spoken of; they were overbalanced probably by two considerations.
First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter must and shall overbalance the former.
Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapaciated from serving their country. To which we may add, that the compensation which the members receive for their services, is probably such an equivalent, as must secure them from undue influence, or concessions from motives of interest.
A second qualification required by the British constitution is, that the person elected shall be of the age of twenty-one years at the time of his election:99 ours with more caution and perhaps with better reason, requires that he shall have attained to the age of twenty-five years.
These are all the positive qualifications, in which there appears to be any very material difference worth remarking. Of negative ones, those which relate to the incapacity of certain descriptions of placemen and pensioners in England, are limited to a very small part of the host of the former who depend upon the crown for support; and in respect to the latter only such pensioners as hold during the pleasure of the crown, are excluded.100 A list of placemen and pensioners in either the present or last parliament of England was published some years ago…. I do not recollect their exact number, but I can be positive that it exceeded two hundred.101 A number, sufficient to secure the most unlimited influence in the crown: to these let us add the eldest sons of peers, and ask whether in a question between the commons and the nobility, it would be probable that they would give an independent vote, against the order in which they soon hoped to obtain a permanent rank and station.
Lastly, let me ask, if the conduct of those borough members who hold their seats by the appointment of members of the other house, or perhaps of their own, may reasonably be expected to be uninfluenced by the nod of their patrons? Can a house thus constituted be said to represent the people, the democratic part of the government? Can they be said to form a check upon the proceedings of the nobility, or the measures of the crown?102 The question only requires to be understood, to be answered decidedly in the negative.
We have seen that no person holding any office under the United States, shall be a member of either house during his continuance in office; and that no member of congress shall during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments thereof increased during such time.103 These provisions appear to be more effectual to secure the independence of the members, than any qualification in respect to estate: but, they seem not to have been carried quite far enough.
In the course of this parallel, we have seen that every deviation in the constitution of the United States from that of Great Britain has been attended with a decided advantage and superiority on the part of the former. We shall perhaps discover, before we dismiss the comparison between them, that all its defects arise from some degree of approximation to the nature of the British government.
The exclusive privileges of the house of commons, and of our house of representatives, with some small variation are the same. The first relative to money bills, in which no amendment is permitted to be made by the house of lords, is modified by our constitution so as to give the senate a concurrent right in every respect, except in the power of originating them; and this upon very proper principles; the senators not being distinguished from their fellow citizens by any exclusive privileges, and being in fact the representatives of the people, though chosen in a different manner from the, members of the other house; no good reason could be assigned why they should not have a voice on the several parts of a revenue bill, as well as on the whole taken together. The power of impeachment by the house of representatives corresponds, precisely with that of the British house of commons.
II. We are now to draw a parallel between the house of lords and the senate of the United States, as a second constituent part of the national legislature; and could the parallel between them end there, it might have been said, that all the branches of our political legislature, were, like a well chosen jury, omni exceptione majores.
The house of lords are to be considered in two distinct points of view…. First, as representing a distinct order of men, with exclusive privileges annexed to their individual capacity, and” secondly, as representing the nation.
1. As to the necessity of a distinct order of men in a state; with exclusive privileges annexed to the individual capacity, the author of the commentaries observes, “That the distinction of rank and honors is necessary in every well governed state, in order to reward such as are eminent for their public services, in a manner the most desirable to individuals, and yet without burden to the community; exciting thereby an ambitious, yet laudable ardor, and generous emulation, in others. A spring of action, which however dangerous or invidious in a mere republic, will certainly be attended with good effects under a monarchy. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them only had a vote in electing representatives their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions.”104
The conclusion which evidently arises from the former part of this quotation, “that no mere republic can ever be a well governed state,” inasmuch as honors and titles, the necessity of which, is here so pointedly urged, are dangerous and invidious in such a government, may be proved to be false; both, from reasoning and example. But it will be time enough to controvert our author’s conclusion, when the truth of the principle upon which it is founded is established. The British constitution, with him, is somewhat like the bed of Procrustes; principles must he limited, extended, narrowed, or enlarged, to fit it. If they are not susceptible of so convenient a modification, they are to be wholly rejected…. But to return:
The vital principle of mixt governments is the distinction of orders, possessing, both collectively and individually, different rights, privileges or prerogatives. In an absolute monarchy, a confirmed aristocracy, or a pure democracy, this distinction cannot be found. There being no distinction of orders, there can be no contention about rights, in either of these forms of government, so long as the government remains in the full vigor of its constitution. When either of these three forms of government departs from its intrinsic nature, unless it assumes one of the other instead thereof, it becomes a mixt government…. And this mixture may consist in the combination of monarchy with aristocracy, as in Poland; or with democracy, as in France, under it’s late constitution, as modeled by the national assembly, and ratified by the king; or, in the bleeding of the aristocratic and democratic forms, as was the case with the Roman Republic after the establishment of the tribunes; or of all three, as in the British constitution. The existence of either of these combinations are said to form the constitution of the state in all the governments of the world, except those of America, and France under it’s late constitution; in these the constitution creates the powers that exist: In all others, the existing powers determine the nature of the constitution. To preserve those existing powers in their full tone and vigor, respectively, it may be necessary that each should possess an independent share in the supreme
legislature, for the reasons assigned by the author of the commentaries; but this no more proves the necessity of the order, in a well governed state, than the necessity of wings to the human body would be proved, by a critical dissertation, on the structure, size, and position, of those of the fabulous deities of antiquity.
Our author considers those rewards which constitute a separate order of men; as attended with no burden to the community; nothing can be more false than such a supposition. If the distinction be personal, only, it must be created at the expense of the personal degradation of the rest of the community, during the life of the distinguished person. If hereditary, this degradation is entailed upon the people: personal distinctions cannot be supported without power, or without wealth; these are the true supporters of the arms of nobility; take them away, the shield falls to the ground, and the pageantry of heraldry is trodden under foot.105 What character is less respected in England, than a poor Scotch lord, who is not one of the sixteen peers of that kingdom? That lord in his own clan, possesses comparative wealth and power sufficient among his humble dependents, to be looked up to as a Cræsus in wealth, and a Cæsar in authority.
“A titled nobility,” says a late distinguished English writer,106 “is the most undisputed progeny of feudal barbarism. “Titles had in all nations denoted offices it was reserved for Gothic Europe, to attach them to ranks. Yet this conduct admits explanation, for with them offices were hereditary, and hence the titles denoting them became hereditary too. These distinctions only serve to unfit the nobility for obedience, and the people for freedom; to keep alive the discontent of the one, and to perpetuate the servility of the other; to deprive the one of the moderation that sinks them into citizens, and to rob the other of the spirit that exalts them into freemen. The possession of honors by the multitude, who have inherited, but not acquired them, engrosses and depreciates these incentives and rewards of virtue.”107 If these are the genuine fruits of that laudable ardour, and generous emulation, which give life and vigor to the community, and sets all the wheels of government in motion, heaven protect those whom it encounters in it’s progress.
But is their no stimulous to that laudable ardour and generous emulation which the commentator speaks of, to be found in a pure democracy, which may compensate for the absence of ranks and honors? Yes. VIRTUE; that principle which actuated the Bruti, a Camillus, and a Cato in the Roman republic, a Timoleon, an Aristides, and an Epaminondas among the Greeks, with thousands of their fellow citizens whose names are scarcely yet lost in the wreck of time. That principle whose operation we have seen in our own days and in our own country, and of which, examples will be quoted by posterity so long as the remembrance of American liberty shall continue among men…. “Virtue,” says Montesquieu,108 “in a republic is a most simple thing; it is a love of the republic. Love of the republic in a democracy is a love of the democracy: love of the democracy is that of equality. The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our own country than the rest of our fellow citizens…. But all cannot render equal services: hence distinctions arise here from the principle of equality, even when it seems to be removed, by signal services, or superior abilities.”
This distinction, the only one which is reconcileable to the genius and principle of a pure republic, is, if we may reason from effect to cause,109 the most powerful incentive to good government that can animate the human heart, with this advantage over those hereditary honors for which the commentator is so zealous an advocate, that the ambition excited by the former must of necessity be directed to the public good, whilst the latter springing from self love, alone, may exist in the breast of a Cæsar or a Cataline. A Franklin, or a Washington, need not the pageantry of honors, the glare of titles, nor the pre-eminence of station to distinguish them. Their heads like the mountain pine are seen above the surrounding trees of the forest, but their roots engross not a larger portion of the soil.
Equality of rights, in like manner, precludes not that distinction which superiority in virtue introduces among the citizens of a republic. Washington in retirement was equal, and only equal, in rights, to the poorest citizen of the state. Yet in the midst of that retirement the elevation of his character was superior to that of any prince in the universe, and the lustre of it far transcended the brightest diadem.
But even where it is conceded that distinctions of rank and honors were necessary to good government, it would by no means follow that they should be hereditary; the same laudable ardour which leads to the acquisition of honor, is not necessary to the preservation of its badges; and these are all which it’s hereditary possessors, in general, regard. Had nature in her operations shown that the same vigor of mind and activity of virtue which manifests itself in a father, descends unimpaired to his son, and from him to latest posterity, in the same order of succession, that his estate may be limited to, some appearance of reason in favor of hereditary rank and honors might have been offered. But nature in every place, and in every age, has contradicted, and still contradicts this theory.110 The sons of Junius Brutus were traitors to the republic; the emperor Commodus was the son of Antoninus the philosopher; and Domitian was at once the son of Vespasian, and the brother of Titus.
If what has been said be a sufficient answer to the necessity of the distinction of ranks and honors to the well government of a state, the commentator himself111 has afforded an unanswerable argument against their expedience in a republic, by acknowledging them to be both dangerous and invidious in such a government. And herewith agrees the author of the Spirit of Laws,112 who informs us, that the principle of a democracy is corrupted, when the spirit of equality is extinct. The same admirable writer113 gives us a further reason why so heterogeneous a mixture ought not to have a place in any government where the freedom and happiness of the people is thought an object worthy the attention of the government “A nobility,” says he, “think it an honor to obey a king, but consider it as the lowest infamy to share the power with the people.”
We are indebted to the same author,114 for the following distinguished features of aristocracy: “If the reigning families observe the laws, aristocracy is a monarchy with several monarchs: but when they do not observe them, it is a despotic state governed by a great many despotic princes. In this case the republic consists only in respect to the nobles, and among them only. It is in the governing body; and the despotic state is in the body governed. The extremity of corruption is when the power of the nobles becomes hereditary they can hardly then have any moderation.” Such is the picture of that order of men who are elevated above the people by the distinctions of rank and honors. When the subjects of a monarchy, they are the pillars of the throne, as the commentator stiles them; or, according to Montesquieu, the tools of the monarch…. When rulers, as in an aristocracy, they are the despots of the people…. In a mixed government, they are the political Janisaries of the state, supporting and insulting the throne by turns, but still threatening and enslaving the people.115
In America the Senate are not a distinct order of individuals, but, the second branch of the national legislature, taken collectively. They have no privileges, but such as are common to the members of the house of representatives, and of the several state legislatures: We have seen that these privileges extend only to an exemption from personal arrests, in certain cases, and that it is utterly lost, in cases of treason, felony, or breach of the peace. They more properly the privileges of the constituents, than of the members, since it is possible that a state might have no representative, and the United States no legislature, if the members might be restrained from attending their duty, by process issued at the suit of a creditor, or other person who might suppose he had cause of action against them. In England the privileges of the peerage are in some instances an insult to the morals of the people, the honor of a peer, on several occasions, being equipollent with the oath of a commoner. The exemption from personal arrests in civil cases is extended as well to his servant, as to the lord of parliament; to the injury of creditors, and the no small encouragement of fraud and knavery. And the statutes of scandalum magnatum hang in terrorem over the heads of those who dare to scrutinize, or to question the reality of those superior endowments which the law ascribes, to the immaculate, character of a peer or peeress of the realm. Happy for America that her constitution116 and the genius of her people, equally secure her against the introduction of such a pernicious and destructive class of men.117
Secondly. We shall now consider the British house of lords, as representing the nation.
The superior degree of wisdom which is to be found in aristocracies, forms the principal argument in favor of this branch of the British legislature. Let us examine how far this requisite to national councils, is to be attained by the constitution of that house.
1. The house of lords is composed either of new made peers, or of such to whom that honor has been transmitted by hereditary right; we may admit, though the fact will hardly justify it, that the new made peers have a chance of being selected for their superior wisdom; nay that this is universally the case; the portion of wisdom thus acquired, even in the creative reign of George the third, could never he sufficient to counterbalance the large majority of hereditary peers, who affect to hold in great contempt the talents and learning of their new created brethren. The wisdom of this body rests then upon the chance of natural talents, with the advantages of education to improve and mature them. As to the latter, should we admit that a child, who, from the moment he is capable of making any observation, sees himself treated as a superior being, would have the same stimulus to improve, as one who is taught to consider the road to science as the only one which leads to distinction, no advantage could be claimed in favor of the hereditary legislator, unless it should be proved that the benefits of education are necessarily confined to that class of men …. The question rests then solely upon the mode by which the nobility become legislators, and here every argument against the transmission of talents and virtue in hereditary succession, recurs with accumulated force, the chance of this inheritance being confined by the laws to the eldest son.118
The senate of the United States, as we have seen, is composed of individuals selected for their probity, attachment to their country, and talents, by the legislatures of the respective states. They must be citizens of the states for which they are chosen …. their merits must be known, must have been distinguished, and respected. Age must have matured the talents, and confirmed the virtues which dawned with childhood, or shine forth with youth. Principles must have been manifested, and conduct have evinced their rectitude, energy, and stability …. Equivocation of character can scarcely obtain admittance where the trust is important, elections rare, and limited to an individual, or, at most, to two. The whole number of senators are at present limited to thirty-two …. it is not probable that they will ever exceed fifty …. A late writer119 has observed, that an assembly of Newtons, if they exceeded a hundred, would be a mob. The British house of peers consists of twice that number at the least, and may be increased, at the will of the prince, to any number.120 … The senators of America have the interest of a state to promote, or to defend. A British house of peers has the privileges of the order, the interests of the corporation of aristocracy, to advance. Their wisdom, their exertions, are directed to their own personal aggrandizement …. Those of an American senator
can scarcely find an object, except the good of the nation, or of the individual state which he represents. A peer holds himself responsible to no one for his conduct; a senator is responsible to his constituents, and if he abuses their confidence, will be sure to be displaced, whilst the former hugs himself in the security and stability of his station. I say nothing of the bench of bishops. The independence of that body has been too frequently questioned to render them respectable, even in the eyes of their own nation, as a part of the legislature.
A member of the house of lords, may make another lord his proxy,121 to vote for him in his absence; a privilege which he is supposed to derive from sitting there in his own right; and not as one of the representatives of the nation. He may likewise, by leave of parliament enter his protest against any measure, analogous to which we have seen that the yeas and nays of either house of congress shall be called, if one fifth part of the members present concur therein.122
The lord chancellor, or any other person appointed by the king’s commission is speaker of the house of lords;123 and if none be so appointed, the house of lords may elect; and if the speaker be a lord of parliament he may also give his opinion upon any question which the speaker of the commons cannot …. The vice president of the United States is in like manner speaker of the senate, but he is prohibited from voting unless the senate be equally divided.124 The necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of this officer: and for want of something else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate. An idea probably originating from the tendency which we have sometimes discovered, to imitate the model of the British constitution. The casting vote, which this officer is entrusted with, (as was before observed,) is a very important trust, and ought to have been so modified as to leave the exercise of it, to as few cases as possible …. If a measure originates in the senate, indeed, it would seem to be less dangerous, to permit the exercise of this casting vote, than where it was made use of; to negative a measure, perhaps unanimously adopted by the other house, and upon which the senate have been divided merely from
the absence of some of it’s members. This has actually happened once, on a very important occasion, as we have seen, and may happen again, on others equally interesting to the rights of the citizen.
3. The third constituent part of the British parliament, is the king, without whose assent no bill can pass into a law. The reason for this seems to be the protection of the Jura Coronæ from the encroachments of the legislature, but this protection, says the Commentator,125 consists in the power of rejecting rather than resolving: in like manner we have seen, that the president of the United States to, whom the executive power is entrusted, has a kind of suspensive veto …. not an absolute, but a qualified negative; and so qualified too, that no salutary measure can be so long delayed by his objection to it, if two thirds of both houses concur in the expediency.126 In England since the revolution, the royal negative, as to the practical and ostensible exercise of it, seems to be a mere fiction of the constitution, the influence of the crown in both houses, having always proved sufficient to prevent the obtrusion of any obnoxious bill upon the throne; as has been proved on more than one occasion. The power of calling up any number of new lords, ad libitum, is a sufficient guarantee against the necessity of exercising this unpopular prerogative in the crown. But if that were to be found insufficient, a prorogation which puts an end to all matters depending in parliament would effectually answer the purpose …. And should the parliament upon being re-assembled give
any indications of reviving the offensive subject, a disolution is sure to pave the way for a more complying body in the house of commons. The history of the present administration in England affords facts to justify what has here been offered.127 … In America the executive authority does not extend to the creating new members of the legislature: the president has no power of dissolution, or prorogation, nor even of adjournment, but in case of actual disagreement on that subject between the two houses. His assent if held longer than ten days exclusive of Sundays; is not necessary to the force of a law; and his negative, if it be exercised at all, must be
notified within the same period to congress, together with his reasons in support of it: if they should be deemed insufficient for the rejection of the bill by two thirds of both houses, it will become a law without his approbation: which seems rather to have been intended as a precaution, provided by the constitution against the hasty passage of impolitic, or unconstitutional acts, than as an essential to the completion of a law; as we have before observed.
This concludes a short sketch of the constituent parts of the supreme legislatures of Great Britain and the U. States, with a parallel between them, and the mutual checks and balances provided by the constitution of both countries against the possible encroachments of one of these constituent parts upon the rights of the other. A late English writer128 of popular eminence, undertakes to prove that these governments of balance and controul have never existed but in the vision of theorists. I leave the affirmative to be proved by the advocates for the British constitution, confessing that my own conviction inclines rather to the doctrines of the political heretic, than to those of the most orthodox supporters of the creed which he controverts. But before I quit the subject of checks and balances, I shall say a few words on those required by the political situation, and provided by the constitution of the United States.
The territory of the United States extends along the seacoast from north to south, about one thousand miles, and westward from the coast about eight hundred, affording a variety of productions, and holding forth a variety of pursuits to the inhabitants, corresponding with that of climate, soil and situation …. To secure an equal representation of the interests of the individuals inhabiting this extensive country, united in one political bond, as to their correspondence and intercourse with the other nations of the globe, the house of representatives was constituted upon the principles of equality and reciprocity, between burdens and representation in the manner that we have already seen. But although the interests of the individuals might be common in many respects, throughout the United States, yet the territorial, as well as political division, constitution and laws of the several states, created or manifested a contrariety of interests between them, which all were perhaps equally tenacious of maintaining unimpared. The territorial extent of Virginia being at least one hundred times as great as that of Delaware, and her representation in the proportion of nineteen to one, at present; the interest of the latter could never stand in competition with the former, if the whole legislature were composed of a single house constituted as the house of representatives is: but in the senate, Delaware, as a state; has an equal share in council with Virginia. Her separate interests are there put upon the same footing, with those of
the largest states in the union, nor can she be oppressed, but in such a case as would render any other state liable to the same fate. This appears to me to be a wise and effectual balance. Should it fail, the suspensive negative of the president may counteract the machinations of an oppressive majority, in either, or both houses of congress by requiring, the concurrence of a larger proportion of both, than are likely to agree in any impolitic, unconstitutional, or partial measure. On the other hand should state interest prevail in the senate it would meet an effectual check in the house of representatives, where the number of members is not regulated by states, but by the right of suffrage. The influence of states on the latter house, can never be so great hereafter, as it was during the first and second
congress, after the adoption of the constitution; that influence received a check from the negative of the president129 which restored the constitution to it’s principles, and manifested the happy effects to be derived from a well organized government, so long as any part of it remains uninfluenced by partial or corrupt motives.
Before we dismiss our parallel, a short notice of some other points may not be improper. And first, the privileges of the parliament of England,130 and of it’s members, are indefinite, and depend upon their own construction of them when a new case occurs. In America the privileges of the members of congress are, as we have seen, defined, and I presume limited, by the constitution;131 and the powers of congress are equally prescribed thereby, whilst those of the British parliament have no constitutional limits whatsoever, “and if by any means a misgovernment should any way fall upon it, the subjects of the kingdom are left without all manner of remedy.”132 In America two methods are pointed out, by which any defects in the constitution may be remedied; and, should congress prove too corrupt to adopt the one, it is in the power of the state legislatures to enforce the other;133 besides the chance which frequent elections afford, of remedying an evil before it has taken root in the several branches of government too firmly to be eradicated. Frequent elections of the representatives of the people, have been justly esteemed one of the best securities to the liberties of the people. The most frequent elections of parliaments in
England have been triennial …. they have been protracted to seven years, professedly says Blackstone,134 to prevent the great and continued expenses of frequent elections. Frequent elections would certainly offer the most effectual remedy for this evil, by diminishing that parliamentary influence which septennial elections tend to secure, and to secure which is the great object of election expenses. Whether biennial election of representatives to congress will be sufficiently frequent to secure the due dependence of the members upon their constituents, must be ascertained by experiment. I incline to think, that the reasons in
favor of that period are at least equal to those against it.135 Every objection against it’s extension beyond the period assigned to the duration of our state legislature, must apply with accumulated force against the duration of the parliament of Great Britain. In England, the convening of the parliament, the continuance of the session, and the existence of the parliament depend on the pleasure of the crown. In America, the periods of election, convening, and duration of congress are fixed by the constitution or by law: the adjournments depend upon themselves, the executive have no controul over any matter relative thereto, except in one instance before mentioned, and that must arise from a disagreement between the houses. In England, forty-five members constitute a house to do business, where the whole number consists of 558. In America there must be a majority of both houses to constitute a quorum.136
96. 1. Blacks. Com. p. 158. 159.
97. 1. Blacks. Com. p. 170.
98. Ibid. p. 116. 159. Every county in England sends two knights of the shire to parliament: the county of Merionethshire in Wales, only, has but one. See Jacob’s Law Dictionary. Tit. Knights of the Shire. As to the electors in boroughs &c. see Federalist, No. 56.
99. 1. Black. Com. p. 162.
100. Ibid 175, 176.
101. The number mentioned in Burgh’s Pol. Disq. vol. 2. p. 44.
102. Mackintosh’s defence of the Fr. revolution p. 262. to 269, 334. to 340.
103. C. U. S. Art. 1. Sec. 6
104. 1. B. C. 157, 158.
105. George Nevil, duke of Bedford, was degraded by act of parliament, because of his poverty, 12, Rep. 107.
106. Mackintosh on the French Revolution. p. 77.
107. Mackintosh on the French Revolution, p. 82.
108. Esprit des Loix , lib. 1. c. 2. 3.
109. The greatest characters the world has known, have risen on the democratic floor. Aristocracy has not been able to keep a proportionate pace with democracy. The artificial noble shrinks into a dwarf before the noble of nature. Paine’s Rights of Man, 45.
110. Paine’s Rights of Man, 45.
111. 1 Vol. p. 157.
112. 1 Vol. p. 159.
113. 1 Vol. p. 163.
114. 1 Vol. p. 164.
115. It often happens that the contest for power is betwixt the prince and nobles, the people having been previously enslaved. In this case, the form of government is variable so far as relates to the prince and nobility; but the slavery of the people is lasting. It would be a very happy thing in an aristocracy, if, by some indirect means or other, the people could be emancipated front their state of annihilation. Montesquieu, Vol. 1. p. 16.
116. C. U. S. Art. 1. Sec. 9, 10.
117. An alien applying to be admitted to citizenship in the United States, who shall have borne any hereditary title, or been of any of the orders of nobility, in any other kingdom or state, must make an express renunciation thereof in court, at the time of his admission. L. U. S. 3. Cong. c. 85.
118. The right of primogeniture to the inheritance of virtue and talents, has always appeared to be questionable, if we may draw our conclusion from the authority of the sacred scriptures. The first born son of the first man, was a murderer. The first born son of Abraham, (by a concubine it must be confessed,) was an outcast from society; his hand was against every man, and every man’s hand against him …. The first born son of Isaac was, by the dispensations of the divine providence, postponed to his younger brother; the first born of Jacob went up unto his father’s bed, and defiled it; and the sceptre was transmitted to the race of Judah; the first born of Jesse, appeared worthy in the sight the prophet, but he, with six of his brethren, was rejected in favour of David the youngest and the first born of that same David, was by the same providence set aside in favour of Solomon his youngest son.
120. The temporal peers of Great Britain are said to amount to two hundred and twenty at this time.
121. 1. Black. Com. p. 168.
122. C. U. S. Art. 1. s. 5.
123. 1. Black. Com. p. 181.
124. C. U. S. Art. 1. s. 3.
125. Vol I. p. 154.
126. C. U. S. Art. 1. Sec. 7.
127. In the reign of queen Anne, there was a creation of twelve new peers at once, in order to secure a majority in the house of lords against a bill which had been sent up by the commons, and had passed one or two readings in the other house. The passage of the India bill, which was introduced in the house of commons during the administration of Charles Fox and Lord North, was prevented by a similar expedient, and those obnoxious ministers were dismissed from the service of the crown after midnight: of the same evening when the determination was obtained …. The dissolution of the parliament, in which there was an evident majority against the new ministry, followed soon after, and secured the tranquility of their administration, by a decided majority in the new house of commons.
129. The bill for apportioning representatives among the states, was negatived by the president, as contrary to constitutional principles. A new bill was afterwards introduced and passed, there not being a majority of two thirds of either house, in favour of the former …. 2. Cong. 1. Sess. 1792.
130. Black. Com. p. 160, 164, 165.
131. C. U. S. Art. 1. Sec. 6.
132. 1. Black. Com. p. 161.
133. C. U. S. Art. 5.
134. Vol. 1. p. 189.
135. Federalist Vol. 2. p. 124, to 135.
136. The manner of conducting the business in congress is very similar to that observed in the British parliament. At the opening of the session, the president meets the congress in one or other of their chambers, and addresses them upon the general affairs of the union. This address has generally received a separate answer from each house, which is presented by the whole house, to the president in his audience chamber, that is, at his own house. Every resolution to which the concurrence of the senate is necessary, must be laid upon the table on a day preceding that, in which it is moved, unless, by express commission of the house. Petitions, memorials, &c. addressed to the house must be proceeded upon in like manner. Bills are introduced by motion for leave, or by order of the house on the report of a committee, and in either case a committee is appointed to prepare the bill. Revenue bills, as was observed elsewhere, must originate in the house of representatives; but the senate may originate any other bill, and may also propose, or concur to amendments, in revenue bills, as well as others. As the senate constitutes a part of the executive department, this power of origination must have a strong tendency to strengthen, and give activity to that branch of the government.i Every bill receives three readings; but no bill can be twice read on the same day without special order of the
house. If upon the first reading of a bill it be opposed, the question put is, whether it shall be rejected; upon the second reading, the speaker states that it is ready for commitment or engrossment. The commitment may be either to a select committee or to the whole house. In a committee of the whole, the speaker quits the chair, and a chairman is appointed, who, when the committee rises, reports to the house the progress therein made. After commitment and report, a bill may be recommitted, or at any time after, before its passage. Previous to the third reading of a bill, it is ordered to he engrossed, or written in a fair round hand; when passed in the house of
representatives, it is sent to the senate for concurrence. Bills, except for imposing taxes, may originate in either house. If an amendment be agreed to, in one house, and dissented to in the other, if either house request a conference, a committee is appointed in each house to meet in the conference chamber, to state to each other, verbally, or in writing the reasons of their respective houses, for and against the amendment. After a bill has passed both houses it is enrolled on parchment, examined by a joint committee of both houses, signed by the speaker of the house of representatives, and president of the senate, and is then presented by the committee of enrolment to the president of the United States for his approbation; with an indorsement thereon, specifying in which house it originated, and the day of presentation is entered on the Journals of such house.j If the president approve the bill, he signs it;k it is then received from him by the secretary of state, recorded, and deposited among the rolls in his office; a copy of it is published in at least three of the public papers, and one printed copy is delivered to each senator and representative, and two others, duly authenticated, are sent to the executive authority of each state. The same course is to be observed, where a bill is not returned by the president, within the time limited by the constitution, and thereby becomes a law:
or, having been returned, reconsidered, and approved by two thirds of both houses, becomes law.l The manner of proceeding in case a bill be not approved and signed by the president, has been already fully mentioned, in this Appendix.
i. See De Lolme, B. 2. c. 4. and 5.
j. Rules and Orders of the House of Representatives.
k. C. U. S. Article 1. Sect. 7.
l. L. U. S. 1. Congress. 1. Session, c. 14.