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[CHAPTER II.]: OF MIXED GOVERNMENTS. - Dugald Stewart, Lectures on Political Economy, vol. 2 
Lectures on Political Economy. Now first published. Vol. II. To which is Prefixed, Part Third of the Outlines of Moral Philosophy, edited by Sir William Hamilton (Edinburgh, Thomas Constable, 1856).
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OF MIXED GOVERNMENTS.
OF MIXED GOVERNMENTS IN GENERAL.]
I before observed, [p. 353,] in stating the definitions of the Three Simple Forms of Government, that they do not apply literally to any establishments which have actually existed in the history of mankind, but are merely abstractions, formed by the speculative politician, in order to simplify the objects of his attention when employed in examining and comparing the constitutions of different states. The definition of Democracy (for example) admits no ground of distinction but personal qualities; and yet we may confidently affirm, that no state was ever to be found so popular as to exclude completely all regard to wealth, to birth, and to other adventitious sources of estimation. How difficult, or rather impossible, it is to eradicate this strong bias of our nature, appears remarkably from what Xenophon himself acknowledges concerning the character and manners of the Spartans, among whom he is obliged to confess (notwithstanding his strong partiality in their favour) that there was the same love of riches and of power which are complained of in other communities. There never surely was an Aristocracy so pure as to maintain such an exact equality among the members of the governing order, as might exclude entirely every tendency to Monarchy; nor was there ever an aristocracy in which superior talents and virtues might not procure to an individual of the lower order, a certain respect and influence in the society; and where the nominal rulers were not obliged, in some measure, to share their power, by courting the friendship of the popular favourites. I need scarcely add, that there never was a Despotism in which the sovereign was literally, with respect to his subjects, absolute and omnipotent, and in which he lay under no restraint whatever, either from established customs and manners, or from political and religious opinions, or from apprehensions concerning his own personal security.
Every government, therefore, which has existed in the history of mankind, is more or less a mixed government; nay, every government will be found, if attentively examined, to contain a mixture of all the three simple forms. But as it is impossible, in common discourse, to convey, in a few words, a distinct idea of a particular constitution, and equally impossible to have separate names for all the varieties of government that may be imagined, we are obliged to use the expressions Democracy, Aristocracy, and Monarchy, with a considerable degree of latitude; and to distinguish different constitutions from each other, by the names of these simple forms to which they approach most nearly. It is easy to see, however, that it is only a very vague and imperfect notion of a constitution which we can form from merely hearing its name. We call, for example, the Athenian Government a Democracy, and perhaps there never was any which approached more nearly to the theory. “The people had both the executive and legislative power committed to them; they voted in a collective body in every law, without any limitation of property, without any distinction of rank; without control from any magistracy or senate; and the meanest among them might be raised, by the votes of his fellow-citizens, to the command of armies, or the dignity of ambassador.”* Yet, in Athens, as I already observed, [p. 369, seq.,] from the battle of Marathon, the government was carried on by a series of ambitious and intriguing men, who possessed themselves of the whole power of the state, so that the government, though nominally Democracy, was in fact a Monarchy. Thucydides affirms, in direct terms, that, under Pericles, it differed from monarchy only in name. In Athens, too, adventitious sources of distinction were admitted, as well as in other constitutions; and we are even assured by Xenophon, that those in general were chosen to command who could expend most in banquets and pageantry. Nor is this all; the freemen at Athens bore but a small proportion to the slaves, and these surely ought to be considered as a part of the community. In this boasted constitution, therefore, a great majority of the people not only had no share in the legislature, but were deprived of their rights as men. And, consequently, however jealous the free citizens might be of their own rights, their independent spirit did not arise from the avowed principle of a democracy, a regard to justice, and a sense of that equality of rights which republican writers profess to consider as the common inheritance of mankind.
The names of the other simple forms of government, when applied to particular constitutions, are used with the same latitude.
There is another circumstance which deserves our particular attention in studying this branch of politics. The nature and spirit of a government, as it is actually exercised at a particular period, cannot always be collected (perhaps it can seldom be collected) from an examination of written laws, or of the established forms of a constitution. These may continue the same for a long period of ages, while the government may be modified in its exercise, to a great extent, by gradual and indescribable alterations in the ideas, manners, and character of the people. The truth is, that besides the established laws of a country, the political state of the people is affected by an infinite variety of circumstances, of which no words can convey a conception, and which must be collected from actual and personal observation. Even in this way, it is not easy to collect them. On the contrary, nothing is more difficult than for a person who has received his education in one country, to enter into all the associations which influence the mind of a subject of a different government, or to ascertain, especially on political subjects, all the combinations of ideas he annexes to his words. One striking proof of this is the imperfect and erroneous notions which the ablest and best instructed French writers have formed of the constitution of England. Some of the articles of the Encyclopédie upon this subject, contain mistakes which must appear ludicrous to the most imperfectly informed inhabitants of this country.1 These mistakes have undoubtedly arisen, in part, from the theoretical views of the constitution which have been given by some of our own writers, and which by no means apply to the government as it is carried on at present, and partly from the different views which a Frenchman and an Englishman annex to the corresponding words in their languages. Thus, a person who conceives that the English word commoner is synonymous with the French word roturier, must necessarily have a very false notion of the constituent members of our House of Commons. A similar mistake is committed by those writers who imagine that the French and the English annex the same idea to the word gentleman. In the former country, it was a maxim, that every French Gentleman was a Nobleman, but that every French Nobleman was not a Gentleman.* A person to whom nobility was granted by the sovereign, or who was appointed to a charge conferring nobility, the transmissibility of which was suspended till it vested in his second descendant, was noble; but neither he nor his son was a gentleman: the grandson was the first gentleman of the family. In England, on the other hand, as no gentleman is a nobleman unless he is a peer of Parliament, the word nobility expresses an order in the state specifically and highly elevated, both by law and by public opinion, above the order of gentry. Various other illustrations of the same thing might easily be offered; but the instances we have already produced are sufficient to shew the extreme difficulty of studying the political history of mankind, and of drawing inferences, with justness, from the supposed experience of one country for regulating the conduct of another. At the same time, it is proper to observe, before I conclude this head, that the remarks which have been made do not apply to the constitutions of the ancient states, with nearly the same force with which they apply to the great monarchies of modern Europe, which are incomparably more complicated in their actual structure, in consequence of that infinite diversity of ranks which has taken rise from the feudal ideas and institutions.
From what has been now said, it sufficiently appears, that where the speculative plan of a government, as expressed in its laws, approaches to the definition of one of the simple forms, there may, in fact, be a mixture in the exercise of the government, in consequence of the ideas, manners, and character of the people. What political writers, indeed, commonly call Mixed Governments, are constitutions which professedly share, by their fundamental principles, the supreme or legislative power among different orders of the community; such, for example, as the constitutions of those petty states in different parts of Europe, which divide this power between the collective body of the people and a privileged order; and the constitution of our own country, so strikingly distinguished from all others, by the systematic rigour with which it requires, in every legal enactment, the co-operation of all its three branches. Without, however, attending to the various incidental circumstances which may contribute to modify or restrain the administration of the government, we shall have a very imperfect and erroneous notion of the history of mankind.
Of the truth of this remark, no better illustration can be mentioned than the contrast presented by what are called pure Monarchies in this part of the world, to those despotical establishments which have been already under our review. In the former, although the same language be frequently applied to them, and to the absolute monarchies of the East, the power of the sovereign is, in truth, very effectually counteracted and restrained by a variety of circumstances,—by the independent spirit which is kept alive in Europe by the free states it contains, and which, by means of the press, extends its influence even to the subjects of absolute governments, and, perhaps, in some degree, by that regular subordination of ranks which took its rise from the feudal institutions. It is this particular species of government, unknown to the politicians of antiquity, that Montesquieu has in his eye, when he speaks of monarchy as distinguished from despotism. “A monarchical government supposes,” says he, “pre-eminences, ranks, and an hereditary nobility.”*
The origin of that particular species of hereditary nobility which exists in the monarchies of modern Europe, was formerly explained. In its first form, undoubtedly, it was an institution oppressive and vexatious to the mass of the people; but a variety of circumstances have, in the progress of society, rendered it the mean of tempering the rigour of Monarchical government, and of diffusing refinement and civilisation among the inferior orders. The different ranks, too, in the state, have (more particularly in those countries where commerce is protected and honoured) been gradually blended together; and those distinctions which were formerly so wide and revolting, have been so softened, that it is often difficult to say where one rank ends and another begins. Other scales of estimation, also, beside birth, come in for their share in determining a man’s rank:—wealth (for example) or official dignity, not to mention talents and virtue; and all these circumstances are combined together in adjusting the relative pretensions of individuals. Hence, in the monarchies of modern Europe, there is an infinite number of gradations of rank, from the lowest order of the community to the sovereign; the whole fabric of society bearing a resemblance (according to the happy allusion of Sir William Temple) to a pyramid, of which the undistinguished multitude forms the basis, and the prince the apex.
In such a state of society, an individual is trained from his infancy to acknowledge the influence of adventitious distinctions,—to consider every man as entitled to the rank which he inherits, or which is connected with his official situation,—to maintain with firmness that which belongs to himself, and to look forward to an advancement of it, as the great and ultimate object of his ambition. This regard to adventitious circumstances as the principal ground of distinction, is, I apprehend, what Montesquieu means by the word honour, when he says that it is the principle of a monarchy. “It is the nature of honour,” says he, “to aspire to preferments and distinguishing titles.”* It is evident that by the word virtue, when applied to express the principle of a democracy, he means the love of equality, or a disposition to class men according to their personal qualities; and, as he always contrasts the principles of Democracy and Monarchy, it would seem that the apprehended that the latter form of government is chiefly supported by a regard to those distinctions which birth and fortune, and official dignities, create. In what manner this principle influences the conduct in a monarchy, and how it contributes to distinguish it from a despotism, he has explained in Book III. chapters vii. viii.1
It was in consequence of such ideas and sentiments, arising from a regular subordination of ranks, aided by established opinions and customs, and by the fire which the people all over Europe had caught from the free states in their neighbourhood, that the power of the sovereign in France was limited under the monarchical government. In the language of the French law, he was the vicegerent of God, and accountable to Him alone for the exercise of his authority; nor was there any constitutional check on his authority of much importance, for the registering of his Edicts, in order to give them the force of laws, had become, in a great measure, matter of form, and was but a poor relic of the ancient power of the States, by which, in former times, the regal authority was so effectually restrained. The great check, in fact, upon government in that country, arose from established opinions and customs, and from the character and manners of the people.
I cannot help taking this opportunity of remarking, that Montesquieu was led by an excusable partiality, perhaps, in favour of the government under which he had been educated, and probably in some degree also by prudential considerations, to insist too much on the distinction between Monarchy and Despotism. If, indeed, by monarchy he had meant such a government as the English, in which the authority of the king is subjected to constitutional checks, the distinction would have been as complete and as essential as between any two forms of government whatever. But the monarchy which he describes is restrained and moderated only by the character and circumstances of the people among whom it is established; in other words, a government which—although, in its ordinary exercise, it may, from prudential considerations, respect the claims and the happiness of such orders of its subjects as can combine together in opposition to its oppressions—acknowledges no legal or constitutional restraints, and wherever it can safely exert its authority, exhibits all the spirit of despotism. In reading this part of his writings, indeed, it is difficult to know when to praise or to blame: for he seems to have been actuated by a variety of motives in his reflections; sometimes by a sincere desire to justify that political order to which he had been accustomed; sometimes by a wish to strengthen those opinions and prejudices, which, however ineffectual to accomplish uniformly the purposes of a good government, had yet been found by experience to be, in ordinary cases, of material advantage to the public; and sometimes (one would imagine from the ironical, though apparently dispassionate, account he gives of the effects of the actual establishment) by a secret design to suggest indirectly to his countrymen the superior excellence of a monarchy subjected, like that of England, to constitutional limitations. While we regret, therefore, the ambiguous and enigmatical style in which this great man occasionally expresses himself, we ought at the same time to recollect, that at the period when he wrote, it was necessary for an author who was really anxious to be useful to his country, to draw occasionally a slight veil over the truth; or at least, to content himself with stating premises to his readers, leaving it to themselves to draw the inferences. I mention these circumstances, partly because they appear to me to furnish a key to many apparent inconsistencies in the Spirit of Laws, and partly from a desire of vindicating the character of Montesquieu against the censures which it has incurred from some authors in our own country, who, enjoying the unrestrained liberty of the press, and supported in their sentiments by public opinion, do not make proper allowances for their predecessors in the same line of study, who did not possess the same advantages.
The following quotations will serve, at once, to explain my meaning in the foregoing remarks, and to shew that they are not without foundation.
It may be proper to observe, before we proceed, that as Turkey is Montesquieu’s model of Despotism, so France is the country which he has in his eye when he speaks of the spirit of Monarchy.
“In a monarchical government, intermediate bodies of men between the king and the lower orders of the people, the jurisdiction of the clergy, luxury, the venality of offices, the multiplicity of laws, appear to be indispensable.”*
“The state exists independently of the love of one’s country, of the desire of true glory, of self-denial, and of a disinterested spirit. The laws supply the place of all these virtues.”† He adds, “that idleness, meanness, an aversion for the truth, flattery, treason, perfidy, a contempt of the duties which belong to the citizen, a dread of the virtues of the prince, an interested satisfaction in his weaknesses, a delight in turning virtue into ridicule, form the character of the greater number of courtiers. Now,” says he, “it is difficult to suppose that the majority of the leading men in the state should be dishonest, and their inferiors men of virtue. And indeed, Cardinal Richelieu insinuates in his Political Testament, that if among the people an individual should be found who is so unfortunate as to be honest, the prince should be cautious how he avails himself of his services; so true it is, that virtue is not the principle of this species of government.”*
Montesquieu farther remarks, that “in place of virtue, monarchy has for its principle honour, or in other words, the prejudices arising from the education and the condition of each individual. . . . Thus,” says he, “in a well-regulated monarchy, you will everywhere meet with men who approach to the character of good citizens: but good men will occur very rarely; for to be good one must have the disposition to be so.”† He adds, that “philosophically speaking, it is a false honour which conducts all the parts of which the state is composed.”‡ In another part of this work, he points out the education which is fitted for a monarchy. He observes, that “the virtues which there appear, always result more from a sense of what we owe to ourselves, than of what we owe to others; that the actions of men are less valued for their rectitude than for their splendour; that honour is either the judge who renders them lawful, or the sophist who pleads their apology; that it sanctions gallantry, intrigue, flattery; that it admits of a certain species of openness, but despises that of the people which is founded on truth and simplicity:—and above all, that it exalts that politeness which originates from pride and the love of distinction. . . . To communicate all these qualities, is the great object of education in forming the man of honour, (pour faire ce qu’on appele l’honnête homme,) who has all the virtues which are necessary under this form of government.”§
In the last place, Montesquieu remarks, that “monarchies encourage, in the other sex, a licentiousness of morals.”∥
For supporting that honour which is the principle of this government, he recommends the preservation of all those hereditary privileges which have arisen from the Feudal system. He does not even leave the people the right of granting their consent to the taxes they are to pay; he only recommends to those who are in authority, “not to make their burdens heavier than what is necessary.”*
In these passages, as well as in various others, there is unquestionably a mixture of delicate satire, which has been often overlooked by Montesquieu’s commentators. He seems indeed to have dreaded nothing so much as a hasty perusal of his political speculations. “I entreat,” says he in his Preface, “one favour of my readers, which I fear will not be granted me;—that they may not judge by a few hours’ reading of the labour of twenty years.” Voltaire, too, although he has on various occasions expressed himself sarcastically with respect to this great man, particularly on account of the inaccuracy of his facts and quotations, has, in one instance, remarked in strong and beautiful terms that depth of reflection which he often conceals from common observers by a style epigrammatic and oracular, and adorned with the delicate lights and graces which so frequently accompany superficial attainments:—“That masculine and rapid genius, which dived to the bottom of every subject, while it seemed only to glance upon the surface.”1
From what has been already said of the Athenian government, considered as a model of Democracy, and of the French Government as a model of Monarchy, it appears how difficult it is to judge of the political state of a nation from an examination of their written laws; and that a constitution approaching in theory to one of the simple forms may, in fact, be a mixed constitution in its exercise. We now proceed to make some remarks on governments, which are professedly mixed, and which, by the plan of their constitution, admit different orders of the community to a share in the legislative authority.
That those governments which approach nearly to the simple forms, are all attended with inconvenience, and that the business of political wisdom lies in properly combining them together, was remarked by some of the great writers of antiquity. On this subject they have left us many valuable observations, although their limited acquaintance with the history of mankind necessarily rendered their views of the subject, in many respects, partial and erroneous. The history of modern Europe has furnished us with many important experiments and facts unknown to them, and has pointed out to us clearly a variety of their mistakes. But still our stock of facts is small when compared with the boundless field of speculation which the theory of government presents to the mind; and therefore it is highly probable that many of the maxims which are now current among our most enlightened politicians, will be treated with ridicule by our wiser posterity. Nor is it. going too far to say with Mr. Hume, that “the world is too young as yet to entitle us to form political predictions with confidence from the history of past ages.”*
“It is customary among writers to establish three sorts of government,” says Polybius, “Kingly governments, Aristocracy, and Democracy; upon which one may very properly ask them, whether they mean to state these as the only forms of government, or as the best; for in both cases they seem to be in an error, since it is manifest that the best form of government is that which is compounded of all three. This,” says he, “is founded not only on reason, but in experience; Lycurgus having set the example of this form of government in the institution of the Lacedemonian Commonwealth.”
“This legislator then,” Polybius continues, “having considered with himself, that, according to the necessary and established course of all things, the several accidents and changes that have now been mentioned were inevitable, formed this conclusion; that every simple and single kind of government was insecure, on account of its proneness to degenerate into that more vicious kind, which was most nearly allied to it by nature. For as rust is the inbred bane of iron, and worms of wood; and as these substances, even though they should escape all external violence, at last fall a prey to the evils that are, as it were, congenital with them; in the same manner likewise, every single kind of government breeds within itself some certain kind of vice, which is attached by nature to its very form, and which soon causes its destruction. Thus Royalty degenerates into tyranny; Aristocracy into oligarchy; and Democracy into savage violence. Nor is it possible, as we have already shewn, but that, in the course of time, these conversions must be thus produced. Lycurgus, therefore, foreseeing this necessity, instead of adopting any one of the single forms of government, collected what was excellent in them all, and so joined together the principles that were peculiar to each several form, that no one of them might be extended beyond proper bounds, and slide into the evil to which it was inclined by nature. But that each separate power, being still counteracted by the rest, might be retained in due position, and the whole government be preserved in equal balance, as a vessel when impelled to either side by the wind, is kept steady by a contrary force. Thus, the dread of the people, to whom a certain share was allotted in the government, restrained the excesses and the abuse of royalty. The people, on the other hand, were retained in a due submission to the kings, by their apprehension of the power of the senate. For the members of the senate being all selected from the best among the citizens, were always ready to support the cause of justice; and by throwing their own weight into the scale when either was in danger of being oppressed by the other, to give such strength to the weakest party as the constitution of the state required. By these means the Lacedemonians preserved their liberty entire for a much longer time than other people.”1
The same author remarks, that “all the three forms were blended in the Roman Commonwealth, in such a manner as to render it impossible even for a Roman citizen to assert positively whether the Government was on the whole Aristocratical, Democratical, or Monarchical; for when we attend to the power of the consuls, the government plainly appears to approach to a monarchical description; when we attend to the senate, it seems to be an Aristocracy; and when to the people, a Democracy.”
This observation of Polybius with respect to the state of the Roman Government, at the time when he had an opportunity of studying it, has always appeared to me to reflect peculiar honour on his penetration, and that on account of the very circumstance which has led Grotius to criticise it. “But neither,” says Grotius, “in this instance, do I follow the authority of Polybius, who refers the Roman Commonwealth to the class of mixed governments; for at the time of which Polybius speaks, it was purely a popular government, if, abstracting from its actual administration, we attend to the constitutional claims of the people.”1
Among the numerous commentators of Grotius, there is one who has very modestly suggested the true answer to this objection.
“Auctor inter eos qui circa formas imperii falluntur, etiam Polybium refert, qui Rempublicam Romanam suis temporibus mixtam fuisse dicent. At bene notandum, Polybium non loqui de mixtura status, sed administrationis; forma enim reipublicæ erat mere popularis, sed administratio divisa fuit inter Consules, Senatum et Populum.”* It is here very justly observed, that Polybius is not, in the foregoing passage, speaking of the theory of the Roman Constitution, (about which there could be no diversity of opinion,) but of what common observers (as I formerly remarked [supra, p. 404,]) are so apt to overlook,—the actual state of that constitution, modified as it was by time, and chance, and experience. That he was perfectly aware, too, of this distinction himself, appears from the following passage, (immediately following that already quoted concerning the constitution of Sparta,) in which, with admirable sagacity, he contrasts the Roman Government, which was the gradual result of circumstances and emergencies, with that of the Lacedemonians, which he considered (whether justly or not is a different question) as planned by the foresight and sagacity of Lycurgus. “And thus it was that Lycurgus, having been taught by reason to foresee a certain train of causes and events, was able to give a lasting strength to his establishments. The Romans, on the other hand, though they arrived, indeed, at the same perfection in the constitution of their state, were not led to it by foresight or by reason. But, during the course of many contests and disorders, in which they were engaged, having been careful always to adopt, upon every change, such improvements as the occasion itself suggested to them, they at last obtained the same end likewise, as that which Lycurgus had proposed, and completed the most beautiful frame of government of all that are in our times known.”1
In the writings of Cicero, various passages occur to the same purpose with that which I have now quoted from Polybius. “Statuo,” says he in one of his fragments,2 “esse optime constitutam rempublicam quo ex tribus generibus illis, Regali, Optimo, et Populari, est modice confusa.” And in another passage he has endeavoured to illustrate this observation by comparing the political order which results from such a combination of powers, to the harmony resulting from the different parts in a musical concert. “Ut in fidibus ac tibiis, atque cantu ipso ac vocibus, concentus est quidam tenendus ex distinctis sonis, quem immutatum ac discrepantem aures eruditæ ferre non possunt, isque concentus ex dissimillimarum vocum moderatione concors tamen efficitur et congruens: sic ex summis et infimis et mediis interjectis ordinibus, ut sonis, moderata ratione civitas consensu dissimillimorum concinit; et quæ harmonia a musicis dicitur in cantu, ea est in civitate concordia; arctissimum atque optimum, omni in republica, vinculum incolumitatis; quæ sine justitia nullo pacto esse potest.”*
To these quotations I shall only add the well-known passage in Tacitus, in which, though he expresses his doubts concerning the possibility of reducing the theory to practice, he admits the advantages which a mixed government, formed by a combination of the three simple forms, appears to possess in speculation. “Cunctas nationes et urbes, populus, aut primores, aut singuli regunt. Delecta ex his et consociata reipublicæ forma, laudari facilius quam evenire; vel, si evenit, haud diuturna esse potest.”1
These passages may at first view appear somewhat extraordinary, when we consider that the English Constitution affords the first instance in the history of mankind in which the theory delineated by the ancient philosophers has been realized with success. But the truth is, that however difficult it may be to find such a combination of circumstances, as is favourable to the establishment of such a government, the advantages likely to result from it, supposing it to exist, are abundantly obvious. Indeed, the general idea of it is suggested to us by the principles of human nature, and the common course of human affairs.
I before took notice [supra, p. 402] of that natural aristocracy which we find in every community, arising from the original differences among men, in respect of intellectual and moral qualities. That these were intended to lay a foundation for civil government, no man can doubt who does not reject altogether the inferences which are drawn from the appearances of design in the human constitution.
As the possession of power, however, is to the best of men a source of corruption, the general utility requires that some checks should be imposed on the pretensions of the aristocracy; and the only effectual checks may be easily perceived to be, a popular assembly, on the one hand, to secure the enactment of equal laws, and a single magistrate, on the other, possessing the sole executive power, to prevent the competitions and rivalships among the order of nobility.
The fact which I have now stated with respect to the existence of a natural Aristocracy in every community, as well as the advantages to be derived from it, if properly restrained and regulated, and the mischiefs to be apprehended from it, on a contrary supposition, are eloquently described in the following passage from Lord Bolingbroke:—“It seems to me, that, in order to sustain the moral system of the universe, at a certain point, far below that of ideal perfection, (for we are made capable of conceiving what we are not capable of attaining,) it has pleased the author of Nature to mingle, from time to time, among the societies of men, a few, and but a few, of those on whom He has been graciously pleased to confer a larger portion of the ethereal spirit than, in the ordinary course of His providence, He bestows on the sons of men. These are they who engross almost the whole reason of the species; who are born to direct, to guide, and to preserve. . . . If they retire from the world, their splendour accompanies them, and enlightens even the darkness of their retreat. If they take a part in public life, the effect is never indifferent. They either appear the instruments of Divine vengeance, and their course through the world is marked by desolation and oppression, by poverty and servitude; or they are the guardian angels of the country they inhabit, studious to avert the most distant evil, and to procure peace and plenty, and the greatest of human blessings,—Liberty.”*
Since, then, there is in every society a natural aristocracy, arising partly from original inequalities among men, and partly from the influence of birth and fortune, in what manner shall the legislator avail himself of the assistance of those who compose it, and, at the same time, guard against the dangers to be apprehended from their uncontrolled authority? The answer seems obvious. Form that order of men who, from their situation in life, are most likely to comprehend the greatest number of individuals of this description, into a senate possessing no share of the executive power, and control their legislative proceedings by the executive magistrate, on the one hand, and by an assembly of popular representatives on the other.
“The people without the senate,” says Harrington, “would want wisdom; the senate without the people would want honesty.”*
In stating these general principles, I would not be understood to insinuate, that it is possible to devise a plan of government universally applicable to all the situations of mankind. On the contrary, nothing can be more certain or more evident than this,—that as the form of a government has an influence on the character of the people, so there is a certain national character necessary to support the government, and which, while it continues the same, will render all violent innovations impracticable. Even where a Despotism is established, the situation of the people can be improved only-by very slow degrees; and any violent attempt to alter it has, in general, produced only a change of masters, after a short paroxysm of bloodshed and anarchy.
Neither would I wish it to be understood, that governments have, in general, taken their rise from political wisdom. On the contrary, almost every one of which we have any account has been the gradual result of time and experience, of circumstances and emergencies. This we may affirm to have been universally the case with those which have taken their rise in the rude periods of society; for surely no person, without extreme credulity, can listen to the accounts in ancient historians, of those fabulous legislators, who, by the force of eloquence, or the reputation of wisdom, assembled together a set of savages, who formerly wandered in the woods, convinced them of the utility of government, and persuaded them to submit to any regulations they should think proper to prescribe. The case is considerably different in a more enlightened age. A statesman may avail himself of the power he possesses in introducing new institutions which, in process of time, may produce important effects on the character of a nation; or a people who have been trained to political order under one form of government, may, after a violent revolution, choose (like the American States) to introduce among themselves a new set of usages and institutions. But even in such instances, there are certain limits within which innovations are practicable. They must have a certain degree of reference to the character and manners of the people, otherwise it is impossible that they should permanently maintain the good order or secure the happiness of the community.
Of the necessity of accommodating every new institution to the character of those for whom it is intended, Bacon has taken notice in the First Book, De Augmentis Scientiarum, in which he also remarks the danger which literary men run of overlooking this consideration, from the familiar acquaintance they acquire in the course of their studies with the ideas and sentiments of better ages. He says:—
“Solon interrogatus, an optimas civibus suis dedisset Leges? ‘Optimas,’ inquit, ‘ex illis, quas ipsi voluissent accipere.’ Ita Plato, videns corruptiores suorum civium mores quam ut ipse ferre posset, ab omni publico munere abstinuit, dicens: ‘Sic cum Patria agendum esse ut cum Parentibus; hoc est, suasu, non violentia, obtestando, non contestando.’ Atque hoc ipsum cavet ille, qui a consiliis Cæsari: ‘Non,’ inquit, ‘ad vetera instituta revocans, quæ jampridem corruptis moribus ludibrio sunt.’ Cicero etiam hujus erroris arguit Catonem secundum, Attico suo scribens; ‘Cato optime sentit, sed nocet interdum Reipublicæ; loquitur enim, tanquam in Republica Platonis, non tanquam in fæce Romuli.’ ”*
We may observe, farther, as a proof of the impossibility of establishing general political rules, which are to apply universally to mankind, that the institutions which it is expedient for a state to adopt, are often determined by circumstances external to itself; by the relation, for example, in which it stands to the states in its neighbourhood.
Thus when Charles the Seventh of France, under the pretence of keeping always on foot a force sufficient to defend the kingdom against the sudden invasions of the English, established the first standing army known in Europe,1 self-preservation made it necessary for the other nations of the Continent to follow his example; and in this manner a change which essentially affected their internal policy was recommended to them, or rather forced upon them, by the measures of a foreign prince.
The extent of territory too, and the amount of population which a state may possess with advantage, (in either of which a change will require a correspondent change in the political institutions,) may frequently depend on circumstances external to itself. In the case of states placed in the neighbourhood of each other, a certain equality is necessary to procure to each that degree of consideration which may secure its independence. In the opinions of many politicians, the happiest situation, and the most favourable to the human character, in which mankind have ever been placed, is where they have been formed into small and independent Republics; but in modern Europe, the Republics of the same extent, with those of ancient Greece, appear so insignificant when compared with the extensive monarchies with which they are surrounded, that they resemble (to borrow an allusion of Dr. Ferguson’s) the shrubs in a wood which are choked by the trees under whose shadow they grow.* The disproportion is so great as to frustrate the advantages with which they would otherwise be attended. The same author remarks, that “when the kingdoms of Spain were united; when the great fiefs in France were annexed to the Crown, it was no longer expedient for the nations of Great Britain to continue disjoined.”† Abstracting entirely from their relative interests, or the comparative advantages which they derived from the union of the crowns, the alterations in the state of the great continental powers rendered that event equally necessary to the safety of both.
These miscellaneous remarks may, I hope, be of some use as a supplement to the theoretical views of government given by Montesquieu and his commentators.
I now proceed to make a few observations on the peculiar advantages of that combination of political powers which takes place in our own constitution.
Before, however, I enter on this subject, it may be proper for me to explain the idea I annex to the word Constitution, a word often used in a very vague and inaccurate manner, and which has sometimes been defined in such a way as to convey a false notion of the origin of our government. Such an explanation is the more necessary, as in consequence of an erroneous conception of the true import of this expression, some foreign politicians have been led to assert, that in England there is no constitution at all; inasmuch as there are no fundamental laws of superior authority to the Acts of the existing legislature. The English Government (it is said) has been the gradual offspring of circumstances and events, and its different parts arose at different times;—some of them from acts of the legislature prompted by emergencies, and some of them from long established customs or usages, of which it is not always possible to trace the origin, so that no part of it is sanctioned by an authority paramount to that which gives force to every other law by which we are governed. It is pretended, therefore, that there are no fundamental or essential principles in our government, which fix a limit to the possibility of legislative encroachment, and to which an appeal could be made, if a particular law should appear to be hostile to the rights and liberties of the people. But surely the conclusion in this argument does not follow from the premises. For do we not every day speak of laws being constitutional or unconstitutional; and do not these words convey to men of plain understanding a very distinct and intelligible meaning, a meaning which no person can pretend to misapprehend, who is not disposed to cavil about expressions?
It appears to me, that what we call the constitution differs from our other laws, not in its origin, but in the importance of the subject to which it refers, and in the systematical connexion of its different principles. It may, I think, be defined to be that form of government, and that mode of administrating it, which is agreeable to the general spirit and tendency of our established laws and usages.
According to this view of the subject, I apprehend that the constitution, taken as a whole, ought to modify every new institution which is introduced, so that it may accord with its general spirit; although every part of this constitution taken separately, arose itself from no higher authority than the common acts of our present legislature.
To illustrate this proposition it may be proper to remark, that although the Constitution was the gradual result of circumstances which may be regarded as accidental and irregular, yet that the very mode of its formation necessarily produced a certain consistence and analogy in its different parts, so as to give to the whole a sort of systematical appearance. For unless every new institution which was successively introduced, had possessed a certain reference or affinity to the laws and usages existing before, it could not possibly have been permanent in its operation. Wherever a Constitution has existed for ages, and men have enjoyed tranquillity under it, it is a proof that its great and fundamental principles are all animated by the same congenial spirit. In such a constitution, when any law contrary to the spirit of the rest is occasionally introduced, it soon falls into desuetude and oblivion; while those which accord in their general character and tendency, acquire additional stability from the influence of time, and from the mutual support which they lend to each other. Of such a law we may say with propriety that it is unconstitutional, not because we dispute the authority from which it proceeds, but because it is contrary to the spirit and analogy of the laws which we have been accustomed to obey.
Something similar to this obtains with respect to languages. These, as well as governments, are the gradual result of time and experience, and not of philosophical speculation; yet every language, in process of time, acquires a great degree of systematical beauty. When a new word, or a new combination of words, is introduced, it takes its rise from the same origin with every other expression which the language contains;—the desire of an individual to communicate his own thoughts or feelings to others. But this consideration alone is not sufficient to justify the use of it. Before it is allowed by good writers or speakers to incorporate itself with those words which have the sanction of time in their favour, it must be shewn that it is not disagreeable to the general analogy of the language, otherwise it is soon laid aside as an innovation, revolting, anomalous, and ungrammatical. It is much in the same manner that we come to apply the epithet unconstitutional to a law.
The zeal, therefore, which genuine patriots have always shewn for the maintenance of the Constitution, so far from being unreasonable, will be most strongly felt by the prudent and intelligent, because such men know that political wisdom is much more the result of experience than of speculation; and that when a Constitution has been matured by such slow steps as ours has been, in consequence of the struggles of able and enlightened individuals, jealous of their liberties, and anxious to preserve them, it may be considered as the result of the accumulated experience and wisdom of ages; possessing on that very account the strongest of all possible recommendations and sanctions, an experimental proof of its excellence, of its fitness to perpetuate itself, and to promote the happiness of those who live under it.
ON, IN SPECIAL; AND PARTICULARLY] OF THE ENGLISH CONSTITUTION.
In illustrating the peculiar advantages of our own mixed Government, I have been accustomed to employ several lectures in describing its structure or organization, and in shewing how its different parts have been gradually systematized and perfected, partly by experience, and partly by a train of fortunate accidents, during a succession of ages. At this period of the season, however, I must not enter on so extensive a field; nor do I regret the omission much, as it is in my power to refer, with such advantage, to the excellent accounts given of our Constitution by Blackstone and De Lolme. I flatter myself, too, that all of my hearers are sufficiently acquainted with its great outlines to follow the general reflections I have now to offer on its spirit and tendency.
Among the various excellences of the English Constitution, that which deserves our attention in the first place, is the unity of the executive power, and the division of the legislative. On both of these subjects some very judicious remarks have been made by De Lolme;* but the political discussions that have taken place since his work was first published, have furnished abundant matter for some additional observations.
I.—i. It is from the executive power that the principal dangers to liberty are always to be apprehended; and, therefore, the greater the facility which the constitution affords of tracing its abuses to their proper source, the greater is the security which the people enjoys. In states where the executive power is lodged in different hands, the personal consequence of each individual magistrate is indeed proportionally diminished, and on a superficial view of the subject, it might be imagined that the danger of an arbitrary Government is diminished of consequence. But in truth the case is otherwise. By this division of the executive power, its different depositaries are furnished with the means of committing abuses which cannot be brought home to the real delinquent; and the inconveniences suffered by the people have no effect in suggesting the means of guarding against them for the future.
The inconveniences resulting from this arrangement of things were universally experienced in what are commonly called the Free States of Antiquity, among whom the executive power, instead of being one, permanent and indivisible, was exercised by assemblies and senates, or by them delegated to an almost indefinite number of mutually independent ministers and generals. The consequence was, that the Government exercised an unlimited authority over rich and poor; and when the occasion required, put in a state of requisition (if I may adopt a modern phrase) both their persons and fortunes.1 It is, however, extremely worthy of remark, that this very circumstance, which rendered their constitutions so inadequate to all the ends of good government, put it in their power, on various emergencies, to employ in times of war all the force of the state against their foreign enemies. The maxim, therefore, that the executive power in constitutions of a Republican form is necessarily weakened by being divided, although a most important maxim when properly understood, is so far from being just in the unqualified terms in which it is commonly stated, that it may with truth be affirmed, that in some instances this very division, by rendering its operations irregular and often invisible, removes the possibility of any check or control, and produces a military despotism, at once formidable abroad and oppressive at home. Additional illustrations of these remarks might be easily collected from the history of our own times.2
That there is nothing in these occasional exceptions inconsistent with the general principles formerly stated, (under the article of Monarchy, [supra, p. 386,]) concerning the vigour, secrecy, and despatch which the executive power derives from its unity, it is scarcely necessary for me to mention. The history of the Grecian Commonwealths itself, while it shews that the weakness likely to result from a plurality of executive magistrates may sometimes be counteracted by a concurrence of extraordinary circumstances, bears ample testimony to the inexpediency of such an arrangement as an established rule of policy in a military state.
But what I wish chiefly to remark, at present, is the fatal consequence of a division in the executive power, with respect to the rights and liberties of the people subjected to its authority. Proofs of this may be collected from almost every page of the Grecian history.
In England, on the contrary, the threatening aspect of the executive power has constantly kept alive the jealousy of the people; and while its unity exposed to their view the real causes of the grievances they felt, it reduced to one uniform system the precautions they took to bring it under proper restraint and regulation. “The executive power in England,” says De Lolme, “is formidable, but then it is for ever the same; its resources are vast, but their nature is known; it is the indivisible and inalienable attribute of one person alone; but then all other persons, of whatever rank or degree, become really interested to restrain it within its proper bounds.”*
ii.—Another advantage of the royal prerogative in our Constitution is, that the men to whom the people delegate their share in the legislation are bound, in common with themselves, by the laws which are made. Nay, all orders in the state are interested in the common cause of liberty, as they have nothing but the laws to protect them from the power of the executive magistrate.
iii.—By the same wise arrangement the Constitution has precluded (as far, perhaps, as any possible contingency in human affairs can be said to be precluded) those civil conflicts, by which the happiness and liberty of other states have been subverted. The minister, however aspiring; the popular leader, however turbulent; the general, however intoxicated by that idolatry which splendid military successes command, sees every channel obstructed by which he might hope to raise himself to dominion over his fellow-citizens. In Rome and other ancient republics, the want of a common superior encouraged popular and military leaders successively to aim at the sovereign authority, till the people at length sought a refuge from the miseries brought on them by the dissensions of the contending parties, in submission to absolute despotism. In this view, the monarchical part of our Constitution (restrained and limited as it is by the checks to be mentioned afterwards) is one of the strongest bulwarks of British liberty.
From these observations it sufficiently appears how important are the effects which depend on the Unity of the Executive Power. The salutary consequences resulting from the Division of the Legislative Power are not less deserving of attention.
II.—i. Of these advantages, one of the most obvious is the steadiness which is secured to our laws by the different views and interests of the several bodies of which our Legislature is composed. In this manner, indeed, obstacles may sometimes arise to laws which are highly salutary; but the mischiefs to be apprehended from this are trifling when compared with the evils connected with a fluctuation of laws, or with sudden and rash changes in established institutions. The inconveniences experienced in the ancient republics from a want of steadiness in the legislative code are well known, and were, indeed, of so alarming a nature, that they suggested some very extraordinary and seemingly absurd expedients for diminishing the dangers they threatened. Of this kind were the attempts which the Legislature made to tie up its own hands, from a mistrust of its future wisdom. “It appears,” says Mr. Hume, “to have been a usual practice at Athens, on the establishment of any law esteemed very useful or popular, to prohibit for ever its abrogation or repeal. Thus the demagogue who diverted all the public revenues to the support of shows and spectacles, made it criminal so much as to move for a repeal of this law. Thus, Leptines moved for a law, not only to recall all the immunities formerly granted, but to deprive the people, for the future, of the power of granting any more. Thus, all bills of attainder were forbid, or laws that affected one Athenian, without extending to the whole commonwealth. These absurd clauses, by which the Legislature vainly attempted to bind itself for ever, proceeded from a universal sense in the people of their own levity and inconstancy.”*
Were it not for the division of our Legislature, similar inconveniences would be experienced in England. I before took notice [supra, p. 362, seq.] of those sudden fits of enthusiasm and of frenzy to which all large bodies of men are subject. Nations such as ours, among whom a constant and almost instantaneous communication of intelligence and of opinions is kept up by the unrestrained liberty of the press, are liable to fits of enthusiasm and of frenzy scarcely less violent. “Opinions,” says a late very ingenious writer, Mr. Paley, “are sometimes circulated amongst a multitude without proof or examination, acquiring confidence and reputation merely by being repeated from one to another; and passions founded on these opinions, diffusing themselves with a rapidity which can neither be accounted for nor resisted, may agitate a country with the most violent commotions. For obviating this danger, the most obvious of all expedients (if not the only expedient) is to erect different orders in the community, with separate prejudices and interests. And this may occasionally become the use of an hereditary nobility, invested with a share in the legislation. . . . Were the voice of the people always dictated by reflection; did every man, or even one man in a hundred, think for himself, or actually consider the measure he was about to approve or censure; or even were the body of the people tolerably stedfast in the judgment which they formed, I should hold the interference of a superior order to be not only superfluous, but wrong; for when everything is allowed to rank and education which the actual state of these advantages deserves, that after all is most likely to be right and expedient which appears to be so to the separate judgment and decision of a great majority of the nation; at least that in general is right for them, which is agreeable to their fixed opinions and desires. But when we observe what is urged as the public opinion, to be in truth the opinion only, or perhaps the feigned profession of a few crafty leaders,—that the numbers who join in the cry serve only to swell and multiply the sound, without any accession of judgment or exercise of understanding,—and that oftentimes the wisest councils have been thus overborne by tumult and uproar, we may conceive occasions to arise in which the commonwealth may be saved by the reluctance of the nobility to yield to the vehemence of temporary clamours. In expecting this advantage from an order of nobility, we do not suppose the nobility to be more unprejudiced than others. We only suppose that their prejudices will be different from, and may occasionally counteract the variable prejudices of the multitude.”*
These observations suggest an argument (which appears to me to have great force) against all constitutions that vest the legislative power entirely in assemblies of a popular description. I have repeatedly remarked, that the happiness of mankind depends immediately not on the form of government, but on the particular system of law and policy which that form introduces; and that the advantages which one form of government possesses over another, arise chiefly from the facility it affords for the accomplishment of such legislative improvements as the general interests of the community recommend. Under every form of government, (whatever it may be,) provided its general spirit be favourable to liberty, and allows an unrestrained freedom of discussion, these enlightened views of Political Economy will gradually and slowly prevail, in proportion to the progress of reason and the diffusion of knowledge. And they will command the general assent of mankind soonest in those countries where the constitution of the legislative branch renders its proceeding slow, deliberate, and systematical; and where a strong but regulated police allows men to prosecute those studies that relate to human affairs with the same calm and dispassionate temper with which truth is investigated in the abstract sciences.
ii.—A second advantage which we derive from this division of the Legislature is, that it establishes a sort of balance in the Constitution, so that if either of the three branches should attempt to extend its power too far, the other two might be expected to unite in opposing it. If the King should attempt to render himself independent of the House of Commons, the Lords (however little interested they might feel themselves in the cause of general liberty) would see the danger with which their own order was threatened. It is from the weight which the people have in the Constitution that the Peers derive their legislative authority; and if the House of Commons were annihilated, they would feel themselves degraded from the important station they now hold, to the insignificant distinction of adding to the parade of a despotic court. If, on the other hand, the Commons should attempt to reduce too far the King’s prerogative, he might reckon with certainty on the support of his nobility. The attachment which they may all be supposed to feel to the monarchy from which they derived their titles and rank, and with which their titles and rank must inevitably fall, will, independently of better motives, secure their exertions in defence of the Constitution. Lastly, if we could conceive it to be possible, in the present state of society, for the House of Lords to revive their old aristocratical pretensions, the Crown and the People would unite in resisting a power, by which the one has in former times been so often insulted, and the other oppressed.1
Various instances might be mentioned in which the balance of our Constitution has been actually preserved in consequence of this opposition of interests. Thus, in the reign of Charles II., the attempts which the House of Commons made to annihilate the King’s negative, by tacking Bills to money-bills, was checked by the House of Lords, who made it a standing order of the House to reject, upon the sight of them, all Bills that are tacked to money-bills. In the reign of William III., the House of Lords attempted to abridge the prerogative of the Crown in calling Parliaments, and judging of the proper times of doing it. They accordingly framed and carried in their House a bill for ascertaining the sitting of Parliament every year; but it was rejected by the Commons. Another attempt was made in the House of Lords soon after the accession of George I., to abridge the royal prerogative by limiting the number of the peerage. The Bill passed that House, and great pains were taken to ensure its success in the other; but fortunately for the Constitution, it was thrown out. I say fortunately, as this power of the Crown to create peers at pleasure is the most effectual check on the dangerous views which that House might form.
Of the advantages resulting from a division of the Legislature in a free government, some experimental proofs have occurred within these few years in the states beyond the Atlantic, of too striking a nature to be overlooked in a disquisition concerning the general principles of the British Constitution.
We are told, that in 1776, in the Convention of Pennsylvania, of which Dr. Franklin was President, a form of government by one assembly was before them in debate. A motion was made to add another assembly under the name of a Senate or Council, and was warmly supported by several members; when the President, at last, before the question was put, threw the weight of his authority into the opposite scale.* On this occasion it does not appear that he entered into any discussion on the subject; but the illustration he had recourse to was probably better fitted than any argument to make an impression on his hearers. “The expedient of two assemblies,” he said, “appeared to him like a practice he had somewhere seen, of certain waggoners, who, when about to descend a steep hill with a heavy load, took off one pair of their cattle from before, and chained them to the hinder part of the waggon, so that the remaining horses might draw it, thus secured from the violence of its own momentum, slowly and safely down the descent.”
It is a very curious circumstance, that the state of Pennsylvania, after having adopted a Constitution with but one legislative branch, should afterwards, from actual experience of its inconveniences, have divided the legislative power between a Senate of twenty-three members, and a House of Representatives of seventy-nine. The factions and disorders which the former Constitution produced were so violent, that in the Convention of 1790, which made the alteration, there appeared only four members in favour of the unity of legislation. All the other states in the Union which formerly had but a single branch, (one state alone excepted, that of Vermont,) have followed in this respect the example of Pennsylvania; so that the general sense and experience of the American politicians is now decidedly in favour of a division of the Legislature, as analogous as their circumstances enabled them to make it, to that which exists in the Constitution of England.
In reviewing the various modes in which this improvement has been effected in the several states, it is extremely interesting to consider the different expedients by which they have attempted to accomplish the ends secured in this country by a hereditary nobility. The Constitution of Maryland, in this respect, as well as in various others, reflects peculiar honour on the wisdom of its framers; and (if I have not been misinformed) the result has corresponded, in a very remarkable degree, to their expectations. “The appointment of electors for the express purpose of choosing the senators; the oath they take to select men most distinguished for their experience, talents, and virtues; their voting by ballot, in order to exclude the danger of influence; and the duration of five years:—these are almost peculiar to the Constitution of this state, and are, certainly, all of them very happily calculated to ensure a well-constituted senate.”1 Upon several occasions, accordingly, we are told that “their integrity and firmness have withstood the dangerous and tumultuous shocks of the more numerous branch;” and that “although they have at the moment been the subjects of popular indignation, yet returning reason and moderation have always rewarded them with the public esteem and affection. In the other States, the election of senators immediately by the people, has been found not only liable to cabal, but to make the senators too dependent on leading and intriguing characters in the several districts.”2
It was long ago observed by Mr. Jefferson, in his Notes on Virginia, that “as the senate is intended to be a check on the popular branch, it ought to be constituted in some mode different from the other, either by electors, or by the people restricted by particular qualifications.” He condemns also the Constitution of Virginia for having overlooked this important consideration. “The Senate,” says he, “is too homogeneous with the House of Delegates. Being chosen by the same electors, at the same time, and out of the same subjects, the choice falls of course on men of the same description. The purpose of establishing different houses of legislature, is to introduce the influence of different interests and different principles. In some of the American States, the delegates and senators are so chosen, as that the first represent the persons, and the second the property of the State. But with us in Virginia, wealth and wisdom have an equal chance for admission into both Houses. We do not, therefore, derive from the separation of our legislature those benefits which a proper combination of principles is capable of producing, and those which can alone compensate the evils that may be produced by their dissensions.” In Maryland and Kentucky alone, the mode of choosing by electors prevails. In several of the other States, the voters for senators must have a greater pecuniary qualification than the voters for the other branch; and the senators more property than the representatives.
Another respectable American statesmen (Mr. William Smith of South Carolina, who was lately minister from the United States at the Court of Lisbon) has remarked, that “while in other countries” (he plainly alludes to England) “the upper or checking house emanates from a different source than the people, with us all power must flow mediately or immediately from the same source; in order, therefore, to invigorate this branch with an adequate power of control, it is necessary that it should be less dependent on the people than the popular branch. The means employed for this purpose in Maryland and Kentucky appear to be the best. The time of greatest danger in representative governments is, when the violent passions which agitate the people have got possession of the popular branch. If the Senate be elected immediately by the people, it is not to be doubted that generally the same passions will pervade the Senate, or render all checks ineffectual. The longer duration of the Senate which exists in many states, is certainly a considerable remedy to this evil; and the experience of the American people has, in all their revisions of their constitutions, (except that of Georgia,) invited them to make this inequality as great as may be thought to be consistent with a proper responsibility and dependence.”1
The indirect eulogium which these facts and authorities convey on the constitution of our Upper House, is too obvious to require illustration.
III. A third circumstance which distinguishes the English Constitution from most other political establishments, is the power which the people have (by means of their representatives) not only of deliberating on new laws, and giving them their sanction, but of proposing laws to the consideration of the other branches of the Legislature.
In most of the ancient free states, the share of legislative power possessed by the people consisted merely in approving or rejecting the propositions made to them by those who were intrusted with the executive power. In the first times of the Roman Republic, the power of preparing the laws that were to be proposed was constantly exercised by the Senate. Laws were made Populi jussu ex auctoritate Senatus. “Senatus censuit,” says Livy,* “populus jussit.” Even in cases of elections, the previous approbation of the Senate, with regard to the candidates, was required. “Tum enim magistratum non gerebat is, qui ceperat, si patres auctores non erant facti.”2
At Venice, under the old government, the Senate also exercised powers of the same kind with regard to the Grand Council or Assembly of the Nobles. In the Canton of Berne, all propositions were discussed in the Little Council (which was composed of twenty-seven members) before they were laid before the Council of the Two Hundred, in whom resided the sovereignty of the whole Canton. And in Geneva the law was, that nothing should be treated in the General Council or Assembly of the Citizens, which had not been previously treated and approved in the Council of the Two Hundred; and that nothing should be treated of in the Council of the Two Hundred, which had not been previously treated and approved in the Council of Twenty-Five.
Something of this kind seems, indeed, to be necessary in Republican governments, to prevent rash acts of legislation, and to give stability to the laws. But the remedy threatens evils scarcely less alarming than those which it is intended to correct. They are well described in the following passage of De Lolme:—“These magistrates or bodies, at first, indeed, apply frequently to the Legislature for a grant of such branches of power as they dare not of themselves assume, or for the removal of such obstacles to their growing authority as they do not yet think it safe for them peremptorily to set aside. But when their authority has at last gained a sufficient degree of extent and stability, (as farther manifestations of the will of the legislative body could then only create obstructions to the exercise of their power,) they begin to consider the legislature as an enemy whom they must take great care never to rouse. They, consequently, convene the assembly as seldom as they can; and when they do convene it, they carefully avoid proposing anything favourable to public liberty. Soon they entirely cease to convene the assembly at all; and the people, after thus losing the power of legally asserting their rights, are exposed to that which is the highest degree of political ruin, the loss of even the remembrance of them, unless some indirect means are devised, by which they may, from time to time, give life to their dormant privileges,—means which may be found tolerably successful in small states, where provisions can more easily be made to answer their intended ends, but which, in states of considerable extent, have always proved in the event, a source of disorders of the same kind with those which were at first intended to be prevented.”*
Here, then, there seems to be a dilemma in the theory of government, which presents to us only a choice of evils. “If the People debate,” says Hume, “all is confusion. If they do not debate they can only resolve, and then the Senate carves for them.”* Both evils are avoided (as far as it seems possible for human wisdom to guard against them) in the plan of our Constitution.
I already said, that the people have (by means of their representatives) a complete power of proposing whatever laws they please, to the consideration of the Legislature. But this is not all. They have prevailed on the executive power to renounce all claim to the initiative in acts of legislation, with the single exception of acts of grace or pardon.1 The king, indeed, occasionally sends messages to either House; but these messages are always expressed in very general terms, desiring the House to take certain subjects under their consideration, without specifying any particular articles or clauses. The House proceeds in the same way as in the case of a petition from a private individual, some member making a motion upon it, and the bill being framed in the usual manner, and considered, during its discussion, as originating in this motion, not in the proposition of the sovereign. It is an understood principle, too, that neither the king nor his privy council can make any amendment on bills that have passed the two Houses, and that his prerogative extends only to a simple acceptance or rejection.
While a security is thus provided against the undue weight of the King or of the Upper House in acts of legislation, the evils resulting in most free states from popular deliberation, are prevented by the delegation of the power of the people to their representatives. Rousseau, indeed, in his Social Contract, considers this delegation as a renunciation of political freedom. “The people of England,” says he, “think that they are free. They are much mistaken: they are so only during the election of members of parliament: so soon as these are elected the people are nothing.”† In opposition to this very extravagant doctrine, it is justly observed by Rousseau’s ingenious fellow-citizen, De Lolme, that it is “in consequence of delegating the power to a representative body, that the people of England have been enabled to resist the phalanx who would engross to themselves the honours and dominion of the state. This phalanx is, comparatively speaking, a small number, and therefore easily united. A small number must therefore be opposed to them, that a like union may be obtained. It is because they are a small number that they can deliberate on every occurrence, and never come to any resolution but such as are maturely weighed; it is because they are few that they can have forms which continually serve them for general standards to resort to, approved maxims to which they invariably adhere, and plans which they never lose sight of: here, therefore,” continues De Lolme, “I repeat it, oppose to them a small number, and you will obtain the like advantages.”*
The sum of De Lolme’s general argument on the subject amounts to this:—That “a representative constitution places the remedy against the usurpations of those who govern in the hands of those who feel the disorder: whereas a popular constitution places it in the hands of those who cause it. And it is necessarily productive, in the event of the political calamity of trusting the means of repressing the invasions of power to the men who have the enjoyment of power.”†
IV. A fourth and most important circumstance in the English Constitution distinguishes it from the other Monarchies of Europe, and is attended with advantages of so essential a nature, that I am surprised so little stress has in general been laid upon it by our political writers. What I allude to at present is the regular gradation of rank, from the lowest to the highest, which produces a far more intimate connexion between the different orders of the community than takes place under any other monarchical form of government.
It is very remarkable that England is the only country in Europe where the distinction of noble and not noble is carried no further than the nature of the established government requires it should; because there the nobility do not, as such, form a caste, or class distinct from the rest of the nation, but only a separate order, by being an integrant part of the constitution. The prerogatives which the English Peers possess belong to them in their corporate capacity, whereas in other countries, the privileges of the noblesse being attached to them as individuals, are not apparently subservient to any purpose of political utility. In England, besides, the honours and privileges of the peerage are confined to the head of each noble family; and, of consequence, the rank of nobility is attached, not to noble descent considered abstractly, but to that situation alone in the state which renders an individual an hereditary legislator. The younger branches of these families, as they have no share in the legislature, are Commoners in the eye of the law; and as, in the course of a generation or two, they are lost in the general mass of the community, they serve as a link to connect together the interests of the two orders into which our constitution supposes the whole body of the people to be divided.
In other countries, where those who have been once ennobled transmit the honours and privileges of nobility to all their posterity alike, there is no link to connect the nobles with the rest of the nation; on the contrary, a line is drawn between them which separates them for ever, opposing an insurmountable obstacle to that harmony of views and interests which forms the principal security of a free Constitution.
The civil wars in England, and the usurpation of Oliver Cromwell, compensated, in some degree, for the many miserable consequences they produced, by discriminating, still more strongly than before, the ideas and manners of the English nation from those which were prevalent over the rest of Europe. “It is consolatory to reflect,” says Sir Frederic Eden, “that amidst the desolating effects of civil dissension, the nation got rid of the prejudice, (which had too long prevailed both in England and on the Continent,) that the pursuits of trade were incompatible with the advantages of birth.” Hume remarks, from Lord Clarendon, that “the influence of those ideas which the civil wars introduced, engaged the country gentlemen to bind their sons apprentices to merchants.”* And it has been observed by a late writer, Mr. Chalmers, that “the civil wars which began in 1640 (unhappy as they were, while they continued, both to king and people) produced in the end the most salutary effects, by bringing the higher and lower ranks closer together, and by inspiring all of them with an activity and vigour that in former ages had no example.”†
Having now endeavoured to illustrate some of the characteristical excellences of our Constitution, I shall offer a few remarks on an objection to the division of our Legislature, which was much insisted on by some foreign writers about the period when the French Revolution commenced. If the legislative power (it was urged) is really composed of three branches, which form constitutional and irresistible checks on each other, and if this division be not merely nominal and nugatory, one of two consequences must inevitably happen in every case where there is a difference in their views; either that the legislative power must be paralyzed and suspended for the moment, or that the political system must suffer a shock inconsistent with the order and stability of a well-constituted government. The objection was probably suggested by the following passage in Montesquieu’s panegyric on the Constitution of England, in which, though he has indirectly hinted at the difficulty, he does not seem to have been fully aware of its true solution:—“The legislative body,” he observes, “being composed of two parts, one checks the other by the mutual privilege of rejecting. They are both checked by the executive power, as the executive is by the legislative. These three powers,” he adds, “should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still to move in concert.”‡ As Montesquieu has, in this instance, rather eluded than obviated the difficulty which he has pointed out to his readers, it is not surprising that this very vulnerable part of his theory should have presented a stumbling-block to such of them as derived their whole knowledge of our government from The Spirit of Laws; and accordingly, the objection to which it manifestly leads has been enlarged upon by some foreign politicians of no inconsiderable note. I shall therefore avail myself of this opportunity to point out at some length the mistaken views of our Constitution in which it has originated, more especially as the illustration of this argument will lead me to some criticisms, which appear to myself of importance, on the theoretical accounts of our government, to be found not only in Montesquieu, but in Blackstone and other constitutional lawyers of our own country, when these accounts are applied to the actual state of our political establishment. The same criticisms may be extended, though by no means equally applicable, to what has been written on this subject by the late ingenious and judicious De Lolme.
Before, however, I enter on this discussion, it is proper for me to observe, that I do not mean, by the remarks I am to offer, to convey the slightest censure on the writings of the eminent politicians I have now mentioned. Indeed, I apprehend it is absolutely necessary for every political student to begin his researches concerning our Constitution, by the perusal of some such general account of it as they have given; were it for no other reason than this, that their account is the common one given by political writers, and that, on questions of this nature, it is necessary not only to know what is true, but to know what has been thought and said by writers of reputation. In the present case, however, a farther and more important advantage may be derived from the speculations I refer to; because, although they are very far from being realized in our present government, yet they bear a certain resemblance to it; and as they do not distract the attention with a variety of anomalies which exist in reality, they lead the mind, easily and gradually, to a more distinct and just idea of the whole, than we should obtain if we attempted to comprehend so complicated a fabric, by examining in detail all the different parts which compose it. From the remarks which are now to be made, it will appear that they have, moreover, a tendency to simplify the subject of our examination, by stating, as separate and distinct objects of attention, parts of the Constitution which are blended together in their actual operation.
The difference between the theory of our Government and its actual state, is owing to various causes. 1°.—Many of our ancient laws and forms remain, while the ideas of the people have undergone important changes; and great alterations have taken place in the relations which different orders of the community bear to each other. The two branches, for example, of our legislature still continue to be described in our laws in the same terms as they were formerly in a very different form of society; terms which certainly are apt to convey to those who look merely at the outside of things, very false ideas of their comparative rank and importance in the state at present. And, accordingly, if I am not much mistaken, they do convey, in general, to foreigners, ideas of a distinction analogous to that suggested by the words patrician and plebeian at Rome, or noble and roturier in France. 2°.—There are many essential circumstances in the actual state of our Government, which are not professedly parts of the Constitution, and which are not even mentioned in any of our laws; nay, some of which are directly contrary to our written laws, and to the plan of our Constitution as it exists on paper. It is sufficient for me to mention as an instance, the indirect influence of the King and Lords in the Lower House.
I shall endeavour to point out, as clearly and concisely as I can, some of the most important respects in which the actual state of our Government differs from the theory; after which, I shall offer a few remarks on the circumstances by which these differences have been produced, during the long period which has elapsed since its great outlines began first to attract the notice of the world, in the rough but bold and original draft of our barbarous progenitors.
i.—In the theoretical accounts of the Constitution, it is always supposed that the three branches of the legislature are perfectly distinct from each other; and that the preservation of the Constitution depends on the different directions, and the relative proportions of these three powers. All this is perfectly agreeable to the language of the Constitution; for it ascribes to each of the branches an absolute negative on the determinations of the two others. But is this really the fact? or will any man pretend, that each of the three branches can exercise the veto with equal effect and equal advantage? With respect to one branch of the Legislature, the King, it seems now to be an acknowledged fact, that he never can exercise his negative without endangering the public tranquillity. The last time it was exerted was in the year 1692, by William III., who at first refused his assent to the Bill for Triennial Parliaments, but was prevailed on to sanction its enactment two years afterwards.1 The power, indeed, vested in the sovereign, of dissolving Parliament at pleasure, amounts to a virtual negative on those acts of the legislature of which he disapproves; but this prerogative, it is manifest, wherever it accomplishes its object, supposes the voice of the people (to whom the appeal is made) to be at variance with the measures of their constitutional representatives. It must, therefore, be evidently an experiment, fraught with danger to those legitimate authorities, whose proceedings are thus subjected to the immediate discussions and censures of an inflamed and unthinking multitude. The power of dissolving Parliament, accordingly, is pronounced by Mr. Burke in one of his ablest and most judicious productions, to be “of all the trusts vested in his Majesty, the most critical and delicate.”* “It is an experiment full of peril to put the representative wisdom and justice of his Majesty’s people in the wrong; to set up the representative and constituent bodies of the Commons of this kingdom as two separate and distinct powers, formed to counterpoise each other, leaving the preference in the hands of secret advisers of the crown.”†
In ancient times the case was widely different. At the close of one session, Queen Elizabeth (as we are informed by D’Ewes) gave her assent to twenty-four public and nineteen private bills, and at the same time rejected forty-eight which had passed the two Houses of Parliament.1 No fact can illustrate more strongly the change which has since taken place in the practical spirit of our Government.
With respect to the House of Lords, it is equally evident, that if they were to attempt to oppose their negative to the decided wishes of the King and Commons, it would be impossible for them to render their opposition effectual. Against such an event, indeed, some security is provided by the Constitution in the King’s prerogative of adding at pleasure to the number of the peerage; but abstracting from all considerations of this sort, the truth is, in the present state of things, that the ministry (if they are understood to carry the sovereign along with them cordially in their measures) may reckon with confidence on the support of a majority of the peers. And even were the fact, in any extraordinary combination of circumstances, to turn out otherwise, the Upper House could oppose but a shadow of resistance to the combined strength of the two other branches of the Legislature, supported as they always must be by public opinion, when their views happen completely to coincide. “As to the House of Lords,” says Mr. Hume, “they are a very powerful support to the Crown, so long as they are, in their turn, supported by it; but both experience and reason shew that they have no force or authority sufficient to maintain themselves alone, without such support.”*
If these observations be just, it necessarily follows, that neither the King nor the House of Lords possess now that independence and co-ordinate importance which our popular language and popular theories ascribe to them; and, consequently, that the whole practical efficiency of our Government is either centered within the walls of the House of Commons, or operates by the intermediation of that assembly.
Agreeably to this view of the subject, it was long ago remarked by Mr. Hume, that “the share of power allotted by our constitution to the House of Commons, is so great, that it absolutely commands all the other parts of the Government.”* “How much,” says he, “would it have surprised such a genius as Cicero or Tacitus, to have been told, that in a future age there should arise a very regular system of mixed Government, where the authority was so distributed, that one rank, whenever it pleased, might swallow up all the rest, and engross the whole power of the Constitution. Such a government, they would say, will not be a mixed government. For so great is the natural ambition of men, that they are never satisfied with power; and if one order of men, by pursuing its own interest, can usurp upon every other, it will certainly do so, and render itself as far as possible absolute and uncontrollable.
“But in this opinion,” he adds, “experience shews they would have been mistaken. For this is actually the case with the British Constitution.”†
Shall we therefore conclude, that the whole theory of our Constitution, as commonly stated, is a mere chimera; and that the three powers, of which so much has been said, have no real operation? By no means. The common theory of our Constitution is perfectly sound in its fundamental principles, although it requires a more full development than is to be collected from the general outline of it delineated by systematical writers. The three powers which have been so long regarded as the distinguishing feature of the English plan of policy, do all exist in fact, and all operate in a most effectual and important manner, but not in the manner expressed in our laws, or in general supposed by our speculative politicians. In consequence of the changes which time has produced, they do not now, as formerly, operate separately and ostensibly; but restraining and modifying each other’s effects, they operate in a manner not so palpable, though equally real, by being blended together in the composition of the House of Commons; an assembly which is no longer composed of men whose habits and connexions can be supposed to attach them exclusively to the people, but of men, some of whom, from their situation, may be presumed to lean to the regal part of a government, others to the aristocratical; while, on important questions, the majority may be expected to maintain the interests of the community at large.
To illustrate this, it may not be improper to consider of what descriptions of persons the two Houses of Parliament are at present composed; which, when compared with the original composition of those Houses, will at the same time clearly point out the cause of the great difference that exists between the actual state of the Constitution, and the language and forms handed down to us from our ancestors.
This discussion is the more necessary, as the solution given by Mr. Hume of the paradox, just quoted from his works, (although unexceptionable as far as it goes,) is stated in terms much too concise and general, to convey complete satisfaction to those who have not corrected their theoretical views of our Government, by an attentive study of this singular machine in its actual movements. “How,” he asks, “shall we resolve this paradox? And by what means is the House of Commons confined within the proper limits, since from our very Constitution it must necessarily have as much power as it demands, and can only be confined by itself? How is this consistent with our experience of human nature? I answer, that the interest of the body is here restrained by that of the individuals, and that the House of Commons stretches not its power, because such an usurpation would be contrary to the interest of the majority of its members.”* The question, however, still recurs, how does all this happen, and to what causes is it owing that the theory of our Constitution, which we know was in former times nearly realized, should now be so little applicable to its practical administration? The truth, I apprehend, will appear from the following observations to be this; that in the present, as in numberless other instances, the natural course of events, unfettered in this fortunate country by those restraints which, in other parts of the world, cramp the energies of the human mind, has gradually and insensibly adapted our existing institutions to the varying circumstances of a progressive society, and has thus preserved their original spirit, even where they appear on a superficial view to be most incompetent to their end.
In the earlier ages of the English history, it is of essential importance for us to recollect, that the Peers comprehended the great nobility and principal proprietors of the country, and formed not only the nominal, but the real aristocracy of the state. The House of Commons, on the other hand, was composed of men who were really of the plebeian order—of merchants and traders, and gentry of small fortunes. In one of the ancient writs, they are described as follows:—“Dubbed Knights, or the most worthy, honest, and discreet Esquires in each county, the most expert in feats of arms, and no others; and of every city two citizens, and of every borough two Burgesses, discreet and sufficient, and such who had the greatest skill in shipping and merchandizing.” Even so far down as the time of Edward III., (during which reign, by the way, they seem first to have formed a distinct body,) they appear to have been summoned for no other purpose than to assess aids of money, and to present humble petitions with respect to their grievances. In the year 1332, we find this prince retaining his lords and councillors to advise him in some matters of moment he had to propose to them, after he had dismissed the representatives of the people; and a few years afterwards, they themselves declined giving their advice upon the Ardua Regni, promising “to confirm implicitly the advice of the nobles, conscious of the weakness of their abilities to advise the best.” “The petitions of the Commons,” says Mr. Christian,1 “frequently began with, ‘Your poor Commons beg and pray,’ and conclude with, ‘for God’s sake, and as an act of charity.’ It appears, that prior to the reign of Henry V., it had been the practice of the kings to add and enact more than the Commons petitioned for. In consequence of this, there is a very memorable petition from the Commons in 2 Henry V., which states, that it is the liberty and freedom of the Commons, that there should be no statute without their assent, considering that they have ever been as well assenters as petitioners; and, therefore, they pray that for the future there may be no additions or diminutions to their petitions. And in answer to this, the king granted, that from henceforth they should be bound in no instance without their assent, saving of his royal prerogative to grant and deny what he pleased of their petitions.”1 The same author adds, that “it was long after its creation, or rather separation from the barons, before the House of Commons was conscious of its own strength and dignity;” and such was their modesty and diffidence, that they used to request the Lords to send them some of their members to instruct them in their duty, “on account of the arduousness of their charge, and the feebleness of their own powers and understandings.”2
At present, it is hardly necessary for me to remark how much the case is altered in both Houses. In the Upper House there are peers, who, so far from possessing great landed property, are supported by the bounty of the Crown. Nay, it is not unusual, on the creation of new peers, for the king to assign to them pensions, for the express purpose of enabling them to support their dignity. Nor are all the members of this House men of illustrious descent; for many of them have been raised from a very obscure origin, in consequence of their public services, or their address in courting ministerial favour; and, therefore, the condition of a peer of Great Britain neither implies the possession of landed property, nor the distinction connected with ancient ancestry. If we examine the House of Commons, we find that a change no less remarkable has taken place in its composition since the period of its first institution, for there we find individuals of the oldest families in the country, possessing landed estates of £20,000, or £30,000, or £40,000 a year. We find in the same House, men who, even in the order of precedence, are superior to the majority of the House of Lords. Such, for example, as the eldest sons of Dukes, who are commoners in the eye of the law, and yet who have the right of precedence by Act of Parliament over every Peer under the rank of Marquis. With these men are united, in the same House, a few of the more eminent merchants of England,—a few lawyers, (who consider a seat in it as putting them in the way of professional preferment,)—a great many sons and younger brothers of peers,—a number of country gentlemen of independent fortune, and a few individuals of splendid abilities, introduced by the influence of the Crown, or of the great families.
From the account which has been given of the composition of this assembly, it is evident that both King and Peers must possess a very great indirect influence on its proceedings; and, in so far as the one or the other influence prevails, the actual state of the constitution leans to Monarchy or to Aristocracy. If the Crown disposed of all the seats, the Constitution, under the forms of a mixed government, would be a pure Monarchy; or if, on the other hand, the Peers disposed of all the seats, the Constitution, under the same forms, would be a pure Aristocracy. It was formerly shewn, however, [supra, p. 443, seq.,] that the different parts of our constitution cannot, in the present state of things, operate as checks on each other, in the way that our constitutional laws suppose, and that the whole efficiency of government must necessarily be in the House of Commons. If the Crown and Peers, therefore, had no influence in that House, the constitution, under the forms of a mixed government, would be a pure Democracy; whereas, if each has a certain influence, the three powers may balance each other, and may produce the happy result aimed at in the theory of our constitution, in a way still more advantageous than if it were exactly realized, by saving the machine of government from those violent shocks it must occasionally suffer if king, lords, and commons were openly and avowedly to draw, in any instance, in different directions.
The perfection of our government, while its present forms continue, consists in properly balancing these influences, by giving to the Sovereign a sufficient degree of parliamentary weight to produce a general support to public measures, without an implicit confidence in ministers;—to the Aristocracy such a weight as may be necessary to secure a due respect to landed property, and to ancient establishments;—and to the People such a preponderance as may enable them to secure equal liberty and impartial justice to every subject, without permitting them to run into the extravagances of popular tumult and violence.
How far this description is realized in the actual state of our Government we have not at present leisure to examine. In the opinion of some very eminent politicians, “a new principle of authority (unknown to the constitution before) may be traced from the time of the Revolution.” “Before that period,” (it has been remarked,) “the friends of liberty dreaded only the direct encroachments of the prerogative; they have since learned to entertain stronger apprehensions of the secret motives of interest which the Crown may hold up to individuals, and by which it may seduce them from the duty which they owe to the public.”1 On this subject, it was long ago remarked by Sir William Blackstone, (and the observation has been still more forcibly stated by various writers since his time,) that “if the instruments of power are not so open and avowed as they formerly were, they are not the weaker on that account; and that our national debt and taxes have, in their natural consequences, thrown such a weight of power into the executive scale of government, as we cannot think was intended by our patriot ancestors, who gloriously struggled for the abolition of the then formidable parts of the prerogative, and by an unaccountable want of foresight, established this system in its stead.” In this observation it cannot be denied, that there is much and very important truth; but it does not affect the justness of the speculative, or rather the hypothetical principle, which I have been attempting to establish, that supposing the indirect influences of the king and of the peers to be carried no further than is necessary to preserve a due balance among the three powers essential to our constitution,—so far from being abuses, they seem to be absolutely requisite for preserving the ancient spirit of our mixed government under the important changes which time has produced in the condition and manners of the different orders of the community.
On these grounds, therefore, I am strongly inclined to agree with Mr. Hume, that “instead of asserting absolutely that the dependence of Parliament, in every degree, is an infringement of British liberty, the country party should have made some concessions to their adversaries, and have only examined what was the proper degree of this dependence, beyond which it became dangerous to liberty.”* If this moderate language had been less suited to the purposes of a political party, it would at least have had a fairer chance of being substantially useful to the public.
The further prosecution, however, of this argument would be altogether foreign to my present purpose, as it is not on any speculative or dubious views of the constitution that I would wish to rest its substantial and characteristical merits. I have repeatedly observed, that forms of government are of importance chiefly, as they lead to wise systems of internal policy, or, as I have elsewhere expressed it, “the only infallible criterion of the excellence of a constitution is to be found in the detail of its municipal code.”† Judging by this test, by the actual effect of the government in securing the happiness and promoting the improvement of its subjects, the English Constitution is unquestionably entitled to a preference over all those which have been hitherto realized in the history of mankind. “During the last sixty years,” says Mr. Hume, in an Essay published in 1752, and the remark may be now repeated, with all the additional sanction of our subsequent experience, “during the last sixty years,” (or rather, we may now say, since the beginning of the last century,) “an uninterrupted harmony has been preserved between our princes and our parliaments. Public liberty, with internal peace and order, has flourished almost without interruption,—trade and manufactures and agriculture have increased,—the arts and sciences and philosophy have been cultivated,—even religious parties have been necessitated to lay aside their mutual rancour, and the glory of the nation has spread itself all over Europe. . . . So long and so glorious a period no nation can boast of; nor is there another instance in the whole history of mankind, that so many millions of people have, during such a space of time, been held together in a manner so free, so rational, and so suitable to the dignity of human nature.”1
I have now finished the plan which I proposed to myself at the opening of this Course of Lectures; and in the last part of it have introduced some discussions concerning various questions of Political Economy,* which I have generally reserved for a more advanced class of students. I could have wished, before taking my leave, to indulge myself in a short retrospect of the principal subjects to which I have endeavoured to draw your attention; but this it is impossible for me now to attempt, without trespassing more than would be proper on your time and patience. The field we have surveyed together is indeed an ample one, and comprehends the most interesting questions which can possibly employ the human faculties. If my ability to do justice to these questions had corresponded in any degree to my wishes, or to the idea with which I have been uniformly impressed of the peculiar importance of that station which I hold in this University, I should now close the labours of this session, not only with the agreeable recollection of the hours which I have spent in reviewing once more the fundamental principles of a favourite study; but with the satisfaction of having discharged a duty of as extensive an utility as most individuals in the private situations of life can be called on to execute.
And now, gentlemen, when the connexion is to be dissolved which has for some months past subsisted between us, may I not be permitted to express the hope which I am encouraged to entertain by the attention with which you have honoured me: that, long after the period of your academical education, you will recollect with satisfaction these studies of your youth; and that by fixing in some measure your principles concerning the nature, the duties, and the prospects of man, they may contribute, under the various vicissitudes of fortune that may yet await you, to fortify your virtuous resolutions, to elevate your views above the pursuits of a vulgar ambition, and to cherish in your minds those habitual sentiments of religion, of humanity, of justice, and of fortitude, which can alone render the talents and accomplishments, (to the cultivation of which so many of your early years have been already devoted,) a source of permanent happiness and honour to yourselves, a blessing to your friends, and a pledge to your country for the perpetuity of that political fabric reared by the hands and cemented with the blood of your ancestors, now, alas! standing alone amid the wreck of surrounding establishments, the last asylum and the only remaining bulwark of the liberties of Europe.—18th April 1808.
APPENDICES TO PARTS FIRST AND SECOND.
[* ] [Hume’s Essays, Vol. I.—Essay, Of some remarkable Customs.]
[1 ] The following passage is to be found in Encyclopédie Méthodique, Commerce, Tom. III. Art. Noblesse:—“En Angleterre la loi des successions attribue aux aînés dans les familles nobles les biens immeubles à l’exclusion des cadets qui n’y ont aucune part. Ces cadets sans bien cherchent à réparer leurs pertes dans l’exercice du négoce, et c’est pour eux un moyen presque sûr de s’enrichir. Devenus riches, ils quittent la profession, ou même sans la quitter, leurs enfans rentrent dans tous les droits de la noblesse de leur famille; leurs aînés prennent le titre de Milord si leur naissance et la possession d’une terre pairie le leur permettent. Il faut néanmoins remarquer, que quelque fière que soit la noblesse Angloise, lorsque les nobles entrent en apprentissage, qui selon le réglement doit être de septs ans entiers, jamais ils ne se couvrent devant leur Maîtres, leur parlant et travaillant tête nue, quoique souvent le maître soit roturier, et de race marchande, et que les apprentis soient de la première noblesse.”
[* ] [And—that “the King can create a Nobleman, but is unable to make a Gentleman;” i.e., a man of family.]
[* ] [Esprit, &c., Liv. III. chap. vii.]
[* ] [Ibid.]
[1 ] See also Book II. chap. iv., and Book IV. chap. ii.
[* ] [Esprit, &c., Liv. III. chap. iv.]
[† ] [Ibid. chap. v.]
[* ] [Ibid.]
[† ] [Ibid. chap. vi.]
[‡ ] [Ibid. chap. vii.]
[§ ] [Ibid. Liv. IV. chap. ii.]
[∥ ] [Ibid.]
[* ] [Ibid. Liv. V. chap. ix.]
[1 ] “Ce génie male et rapide qui approfondit tout en paroissant tout effleurer.”—[Discours à l’Académie Française, (Œuvres, Tome VIII. p. 661, edit. 1817.)]
[* ] [Essays, Vol. I.—Essay, Of Civil Liberty; apparently quoted from memory.]
[1 ] Hampton’s Polybius, Vol. III. p. 19.—[In the original History, Book VI. chapter ix., seq.]
[1 ] “Sed nec Polybii hic utor auctoritate, qui ad mixtum genus reipublicæ refert Romanam rempublicam, quæ illo tempore, si non actiones ipsas, sed jus agendi respicimus, mere fuit popularis: Nam et senatus auctoritatis, quam ad optimatum regimen refert, et consulum, quos quasi reges fuisse vult, subdita erat populo. Idem de aliorum politica scribentium sententiis dictum volo, qui magis externam speciem et quotidianam administrationem quam jus ipsum summi imperii spectare, congruens ducunt suo instituto.”—[De Jure Belli, &c.,] Lib. I. cap. iii. [§ 19.]
[* ] [See the Commentary of Henry de Cocceii, on Lib. I. c. iii. § 19.]
[1 ] “On a injustement accusé les ancions de n’avoir pas eu l’idée d’une monarchie temporée.
“Aristotle en a posé l’équilibre sur la distinction des trois pouvoirs, et Lycurgue en avoit fait la base du gouvernement de Lacedomène.”—See Barthélemi, Voyages d’Anacharsis.
[2 ]De Republica, [Lib. II.]
[* ] [Ibid.]
[1 ]Annales, Lib. IV. [cap. xxxiii.]
[* ] [Letter on the Spirit of Patriotism, Works, Vol. IV. pp. 187, 190.]
[* ] [Oceana.]
[* ] [Works, Vol. VIII. p. 22, Montagu’s edition.]
[1 ] ad 1445. See Robertson, Vol. I. p. 94, [Dublin edit. 1770. Charles V., Preliminary View of the State of Europe, Sect. ii.]
[* ] [Essay on Civil Society, Part I. Sect. ix. p. 100, edit. 1793.]
[† ] [Ibid. p. 99.]
[* ] [On the Constitution of England, Book II. chaps. i.-iii. p. 195, seq., edit. 1816.]
[1 ] Many striking instances of this are mentioned by Dr. Gillies in the Introduction to his Translation of the Orations of Lysias.
[2 ] See also Gillies’s Aristotle.
[* ] [On the Constitution of England, Book II. chap. ii. p. 218, edit. 1816.]
[* ] [Essays, Vol. I.—Essay, Of some Remarkable Customs.]
[* ] [Moral and Political Philosophy, Book VI. chap. vii.; Works, Vol. I. p. 429, seq.]
[1 ] See Paley, [Ibid. p. 427, seq.]
[* ] [I do not apprehend the implied purport of the argument.]
[1 ]A Comparative View of the Constitutions of the Several States with each other, and with that of the United States. By William Smith. Philadelphia, 1796, pp. 15, 16.
[2 ] Ibid.
[1 ] Ibid. p. 17.
[* ] [Hist., Lib. XXXVII. cap. lv., et passim.]
[2 ] Cicero, Pro Plancio, [cap. iii.]
[* ] [On the Constitution of England, Book II. chap. iv. p. 231, seq., edit. 1816.]
[* ] [Essays, Vol. I.—Essay, Idea of a Perfect Commonwealth.]
[1 ] “When an Act of grace or pardon is passed, it is first signed by his Majesty, and then read once only in each of the Houses, without any new engrossing or amendment.”—Blackstone, Vol. I. p. 183, 12th ed.
[† ] [Chap. xv.]
[* ] [On the Constitution of England, B. II. chap. vi. p. 256, edit. 1816.]
[† ] [Ibid. Book II. chap. viii. p. 270, edit. 1816.]
[* ] [History of England, Commonwealth, chap. iii.]
[† ] [Estimate, &c., c.iii. p. 44, ed. 1812.]
[‡ ] [Esprit des Loix, Liv. XI. c. vi.]
[1 ] De Lolme, [On the Constitution of England, Book II. chap. xvii. p. 400, edit. 1816.]
[* ] [Motion relative to the Speech from the Throne, Works, Vol. III. p. 525, edit. 1852.]
[† ] [Ibid.]
[1 ]Blackstone, Vol. I. p. 184.
[* ] [Essays, Vol. I.—Essay, Of the Independency of Parliament.]
[* ] [Ibid.]
[† ] [Ibid.]
[* ] [Ibid.]
[1 ]Notes on Blackstone, Vol. I. p. 181.
[1 ] Christian—ubi supra.
[2 ] Ibid.
[1 ] Millar’s English Government, Vol. IV. p. 95.
[* ] [Essays, Vol. I.—Essay, Of the Independence of Parliament.]
[† ] [Account of the Life and Writings of Adam Smith, 1793, sect. iv.; infra, Vol. X. p. 55.]
[1 ]Essays, Vol. I.—Essay, Of the Protestant Succession.
[* ] [There are extant two conclusions to the Lectures on Politics Proper; which Lectures, it will be remembered, were always delivered by Mr. Stewart at the end of, but in connexion with his general Course of Moral Philosophy. Of these conclusions, the one here given is dated 18th April 1808; the other marked as for the Session 1803-4, will be found in the Appendix, p. 459.]