Week 12: Forming New Governments
Four Letters on Interesting Subjects
Among the many publications which have appeared on the subject of political Constitutions, none, that I have seen, have properly defined what is meant by a Constitution, that word having been bandied about without any determinate sense being affixed thereto. A Constitution, and a form of government, are frequently confounded together, and spoken of as synonimous things; whereas they are not only different, but are established for different purposes: All countries have some form of government, but few, or perhaps none, have truly a Constitution. The form of government in England is by a king, lords and commons; but if you ask an Englishman what he means when he speaks of the English Constitution, he is unable to give you any answer. The truth is, the English have no fixed Constitution. The prerogative of the crown, it is true, is under several restrictions; but the legislative power, which includes king, lords and commons, is under none; and whatever acts they pass, are laws, be they ever so oppressive or arbitrary. England is likewise defective in Constitution in three other material points, viz. The crown, by virtue of a patent from itself, can increase the number of the lords (one of the legislative branches) at his pleasure. Queen Ann created six in one day, for the purpose of making a majority for carrying a bill then passing, who were afterwards distinguished by the name of the six occasional lords. Lord Bathurst, the father of the present chancellor, is the only surviving one. The crown can likewise, by a patent, incorporate any town or village, small or great, and empower it to send members to the house of commons, and fix what the precise number of the electors shall be. And an act of the legislative power, that is, an act of king, lords, and commons, can again diminish the house of commons to what number they please, by disfranchising any county, city or town.
It is easy to perceive that individuals by agreeing to erect forms of government, (for the better security of themselves) must give up some part of their liberty for that purpose; and it is the particular business of a Constitution to mark out how much they shall give up. In this sense it is easy to see that the English have no Constitution, because they have given up every thing; their legislative power being unlimited without either condition or controul, except in the single instance of trial by Juries. No country can be called free which is governed by an absolute power; and it matters not whether it be an absolute royal power or an absolute legislative power, as the consequences will be the same to the people. That England is governed by the latter, no man can deny, there being, as is said before, no Constitution in that country which says to the legislative powers, “Thus far shalt thou go, and no farther.” There is nothing to prevent them passing a law which shall exempt themselves from the payment of taxes, or which shall give the house of commons power to sit for life, or to fill up the vacancies by appointing others, like the Corporation of Philadelphia. In short, an act of parliament, to use a court phrase, can do any thing but make a man a woman.
A Constitution, when completed, resolves the two following questions: First, What shall the form of government be? And secondly, What shall be its power? And the last of these two is far more material than the first. The Constitution ought likewise to make provision in those cases where it does not empower the legislature to act.
The forms of government are numerous, and perhaps the simplest is the best. The notion of checking by having different houses, has but little weight in it, when inquired into, and in all cases it tends to embarrass and prolong business; besides, what kind of checking is it that one house is to receive from another? or which is the house that is most to be trusted to? They may fall out about forms and precedence, and check one another’s honour and tempers, and thereby produce petulances and ill-will, which a more simple form of government would have prevented. That some kind of convenience might now and then arise from having two houses, is granted, and the same may be said of twenty houses; but the question is, whether such a mode would not produce more hurt than good. The more houses the more parties; and perhaps the ill consequence to this country would be, that the landed interest would get into one house, and the commercial interest into the other; and by that means a perpetual and dangerous opposition would be kept up, and no business be got through: Whereas, were there a large, equal and annual representation in one house only, the different parties, by being thus blended together, would hear each others arguments, which advantage they cannot have if they sit in different houses. To say, there ought to be two houses, because there are two sorts of interest, is the very reason why there ought to be but one, and that one to consist of every sort. The lords and commons in England formerly made but one house; and it is evident, that by separating men you lessen the quantity of knowledge, and increase the difficulties of business. However, let the form of government be what it may, in this, or other provinces, so long as it answers the purpose of the people, and they approve it, they will be happy under it. That which suits one part of the Continent may not in every thing suit another; and when each is pleased, however variously, the matter is ended. No man is a true republican, or worthy of the name, that will not give up his single voice to that of the public: his private opinion he may retain; it is obedience only that is his duty.
The chief convenience arising from two houses is, that the second may sometimes amend small imperfections which would otherwise pass; yet, there is nearly as much chance of their making alterations for the worse as the better; and the supposition that a single house may become arbitrary, can with more reason be said of two; because their strength is greater. Besides, when all the supposed advantages arising from two houses are put together, they do not appear to balance the disadvantage. A division in one house will not retard business, but serves rather to illustrate; but a difference between two houses may produce serious consequences. In queen Ann’s reign a quarrel arose between the upper and lower house, which was carried to such a pitch that the nation was under very terrifying apprehensions, and the house of commons was dissolved to prevent worse mischief. A like instance was nearly happening about six years ago, when the members of each house very affrontingly turned one another by force out of doors: The two best bills in the last sessions in England were entirely lost by having two houses: the bill for encreasing liberty of conscience, by taking off the necessity of subscription to the thirty-nine articles, Athanasian creed, &c. after passing the lower house by a very great majority, was thrown out by the upper one; and at the time that the nation was starving with the high price of corn, the bill for regulating the importation and exportation of grain, after passing the lower house, was lost by a difference between the two, and when returned from the upper one was thrown on the floor by the commons, and indignantly trampled under foot.–Perhaps most of the Colonies will have two houses, and it will probably be of benefit to have some little difference in the forms of government, as those which do not like one, may r[es]ide in another, and by trying different experiments, the best form will the sooner be found out, as the preference at present rests on conjecture.
Government is generally distinguished into three parts, Executive, Legislative and Judicial; but this is more a distinction of words than things. Every king or governor in giving his assent to laws acts legislatively, and not executively: The house of lords in England is both a legislative and judicial body. In short, the distinction is perplexing, and however we may refine and define, there is no more than two powers in any government, viz. the power to make laws, and the power to execute them; for the judical power is only a branch of the executive, the Chief of every country being the first magistrate.
A Constitution should lay down some permanent ratio, by which the representation should afterwards encrease or decrease with the number of inhabitants; for the right of representation, which is a natural one, ought not to depend upon the will and pleasure of future legislatures. And for the same reason perfect liberty of conscience; security of person against unjust imprisonments, similar to what is called the Habeas Corpus act; the mode of trial in all law and criminal cases; in short, all the great rights which man never mean, nor ever ought, to lose, should be guaranteed, not granted, by the Constitution; for at the forming a Constitution we ought to have in mind, that whatever is left to be secured by law only, may be altered by another law. That Juries ought to be judges of law, as well as fact, should be clearly described; for though in some instances Juries may err, it is generally from tenderness, and on the right side. A man cannot be guilty of a good action, yet if the fact only is to be proved (which is Lord Mansfield’s doctrine) and the Jury not empowered to determine in their own minds, whether the fact proved to be done is a crime or not, a man may hereafter be found guilty of going to church or meeting.
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It is the part of a Constitution to fix the manner in which the officers of government shall be chosen, and determine the principal outlines of their power, their time of duration, manner of commissioning them, &c. The line, so far as respects their election, seems easy, which is, by the representatives of the people; provincial officers can be chosen no other way, because the whole province cannot be convened, any more than the whole of the Associators could be convened for choosing generals. Civil officers for towns and countries may easily be chosen by election. The mode of choosing delegates for Congress deserves consideration, as they are not officers but legislators. Positive provincial instructions have a tendency to disunion, and, if admitted, will one day or other rend the Continent of America. A continental Constitution, when fixed, will be the best boundaries of Congressional power, and in matters for the general good, they ought to be as free as assemblies. The notion, which some have, of excluding the military from the legislature is unwise, because it has a tendency to make them form a distinct party of their own. Annual elections, strengthened by some kind of periodical exclusion, seem the best guard against the encroachments of power; suppose the exclusion was triennial, that is, that no person should be returned a member of assembly for more than three succeeding years, nor be capable of being returned again till he had been absent three years. Such a mode would greatly encrease the circle of knowledge, make men cautious how they acted, and prevent the disagreeableness of giving offence, by removing some, to make room for others of equal, or perhaps superior, merit. Something of the same kind may be practised respecting Presidents or Governors, not to be eligible after a certain number of returns; and as no person, after filling that rank, can, consistent with character, descend to any other office or employment; and as it may not always happen that the most wealthy are the most capable, some decent provision therefore should be made for them in their retirement from the world. Whoever reflects on this, will see many good advantages arising from it.
Modest and decent honorary titles, so as they be neither hereditary, nor convey legislative authority, are of use in a state; they are, when properly conferred, the badges of merit. The love of the public is the chief reward which a generous man seeks; and, surely! if that be an honour, the mode of conferring it must be so likewise.
Next to the forming a good Constitution, is the means of p[re]serving it. If once the legislative power breaks in upon it, the effect will be the same as if a kingly power did it. The Constitution, in either case, will receive its death wound, and “the outward and visible sign,” or mere form of government only will remain. “I wish,” says Lord Camden, “that the maxim of Machiavel was followed, that of examining a Constitution, at certain periods, according to its first principles; this would correct abuses, and supply defects.” The means here pointed out for preserving a Constitution are easy, and some article in the Constitution may provide, that at the expiration of every seven or any other number of years a Provincial Jury shall be elected, to enquire if any inroads have been made in the Constitution, and to have power to remove them; but not to make alterations, unless a clear majority of all the inhabitants shall so direct.
Farther observations were intended to have been offered in these letters, but the sudden turn of military affairs hath prevented them; I shall therefore conclude with remarking, that perfection in government, like perfection in all other earthly things, is not to be hoped for. A single house, or a duplication of them, will alike have their evils; and the defect is incurable, being founded in the nature of man, and the instability of things.