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[SECT. II.—: ON, IN SPECIAL; AND PARTICULARLY] OF THE ENGLISH CONSTITUTION. - 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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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.
To B. II. Ch. iii. § 3, p. 114.
[* ] [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.]