Magna Charta, as it was called (it is now like an almanack of the same date), was no more than compelling the government to renounce a part of its a.s.sumptions. It did not create and give powers to government in a manner a const.i.tution does; but was, as far as it went, of the nature of a re-conquest, and not a const.i.tution; for could the nation have totally expelled the usurpation, as France has done its despotism, it would then have had a const.i.tution to form.
The history of the Edwards and the Henries, and up to the commencement of the Stuarts, exhibits as many instances of tyranny as could be acted within the limits to which the nation had restricted it. The Stuarts endeavoured to pa.s.s those limits, and their fate is well known. In all those instances we see nothing of a const.i.tution, but only of restrictions on a.s.sumed power.
After this, another William, descended from the same stock, and claiming from the same origin, gained possession; and of the two evils, James and William, the nation preferred what it thought the least; since, from circ.u.mstances, it must take one. The act, called the Bill of Rights, comes here into view. What is it, but a bargain, which the parts of the government made with each other to divide powers, profits, and privileges? You shall have so much, and I will have the rest; and with respect to the nation, it said, for your share, You shall have the right of pet.i.tioning. This being the case, the bill of rights is more properly a bill of wrongs, and of insult. As to what is called the convention parliament, it was a thing that made itself, and then made the authority by which it acted. A few persons got together, and called themselves by that name. Several of them had never been elected, and none of them for the purpose.
From the time of William a species of government arose, issuing out of this coalition bill of rights; and more so, since the corruption introduced at the Hanover succession by the agency of Walpole; that can be described by no other name than a despotic legislation. Though the parts may embarra.s.s each other, the whole has no bounds; and the only right it acknowledges out of itself, is the right of pet.i.tioning. Where then is the const.i.tution either that gives or restrains power?
It is not because a part of the government is elective, that makes it less a despotism, if the persons so elected possess afterwards, as a parliament, unlimited powers. Election, in this case, becomes separated from representation, and the candidates are candidates for despotism.
I cannot believe that any nation, reasoning on its own rights, would have thought of calling these things a const.i.tution, if the cry of const.i.tution had not been set up by the government. It has got into circulation like the words bore and quoz [quiz], by being chalked up in the speeches of parliament, as those words were on window shutters and doorposts; but whatever the const.i.tution may be in other respects, it has undoubtedly been the most productive machine of taxation that was ever invented. The taxes in France, under the new const.i.tution, are not quite thirteen shillings per head,*[18] and the taxes in England, under what is called its present const.i.tution, are forty-eight shillings and sixpence per head--men, women, and children--amounting to nearly seventeen millions sterling, besides the expense of collecting, which is upwards of a million more.
In a country like England, where the whole of the civil Government is executed by the people of every town and county, by means of parish officers, magistrates, quarterly sessions, juries, and a.s.size; without any trouble to what is called the government or any other expense to the revenue than the salary of the judges, it is astonishing how such a ma.s.s of taxes can be employed. Not even the internal defence of the country is paid out of the revenue. On all occasions, whether real or contrived, recourse is continually had to new loans and new taxes. No wonder, then, that a machine of government so advantageous to the advocates of a court, should be so triumphantly extolled! No wonder, that St. James"s or St. Stephen"s should echo with the continual cry of const.i.tution; no wonder, that the French revolution should be reprobated, and the res-publica treated with reproach! The red book of England, like the red book of France, will explain the reason.*[19]
I will now, by way of relaxation, turn a thought or two to Mr. Burke. I ask his pardon for neglecting him so long.
"America," says he (in his speech on the Canada Const.i.tution bill), "never dreamed of such absurd doctrine as the Rights of Man."
Mr. Burke is such a bold presumer, and advances his a.s.sertions and his premises with such a deficiency of judgment, that, without troubling ourselves about principles of philosophy or politics, the mere logical conclusions they produce, are ridiculous. For instance,
If governments, as Mr. Burke a.s.serts, are not founded on the Rights of Man, and are founded on any rights at all, they consequently must be founded on the right of something that is not man. What then is that something?
Generally speaking, we know of no other creatures that inhabit the earth than man and beast; and in all cases, where only two things offer themselves, and one must be admitted, a negation proved on any one, amounts to an affirmative on the other; and therefore, Mr. Burke, by proving against the Rights of Man, proves in behalf of the beast; and consequently, proves that government is a beast; and as difficult things sometimes explain each other, we now see the origin of keeping wild beasts in the Tower; for they certainly can be of no other use than to show the origin of the government. They are in the place of a const.i.tution. O John Bull, what honours thou hast lost by not being a wild beast. Thou mightest, on Mr. Burke"s system, have been in the Tower for life.
If Mr. Burke"s arguments have not weight enough to keep one serious, the fault is less mine than his; and as I am willing to make an apology to the reader for the liberty I have taken, I hope Mr. Burke will also make his for giving the cause.
Having thus paid Mr. Burke the compliment of remembering him, I return to the subject.
From the want of a const.i.tution in England to restrain and regulate the wild impulse of power, many of the laws are irrational and tyrannical, and the administration of them vague and problematical.
The attention of the government of England (for I rather choose to call it by this name than the English government) appears, since its political connection with Germany, to have been so completely engrossed and absorbed by foreign affairs, and the means of raising taxes, that it seems to exist for no other purposes. Domestic concerns are neglected; and with respect to regular law, there is scarcely such a thing.
Almost every case must now be determined by some precedent, be that precedent good or bad, or whether it properly applies or not; and the practice is become so general as to suggest a suspicion, that it proceeds from a deeper policy than at first sight appears.
Since the revolution of America, and more so since that of France, this preaching up the doctrines of precedents, drawn from times and circ.u.mstances antecedent to those events, has been the studied practice of the English government. The generality of those precedents are founded on principles and opinions, the reverse of what they ought; and the greater distance of time they are drawn from, the more they are to be suspected. But by a.s.sociating those precedents with a superst.i.tious reverence for ancient things, as monks show relics and call them holy, the generality of mankind are deceived into the design. Governments now act as if they were afraid to awaken a single reflection in man. They are softly leading him to the sepulchre of precedents, to deaden his faculties and call attention from the scene of revolutions. They feel that he is arriving at knowledge faster than they wish, and their policy of precedents is the barometer of their fears. This political popery, like the ecclesiastical popery of old, has had its day, and is hastening to its exit. The ragged relic and the antiquated precedent, the monk and the monarch, will moulder together.
Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up. In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for const.i.tution and for law.
Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents. How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated! To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.
If the doctrine of precedents is to be followed, the expenses of government need not continue the same. Why pay men extravagantly, who have but little to do? If everything that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case. Either, therefore, government has arrived at its dotage, and requires to be renovated, or all the occasions for exercising its wisdom have occurred.
We now see all over Europe, and particularly in England, the curious phenomenon of a nation looking one way, and the government the other--the one forward and the other backward. If governments are to go on by precedent, while nations go on by improvement, they must at last come to a final separation; and the sooner, and the more civilly they determine this point, the better.*[20]
Having thus spoken of const.i.tutions generally, as things distinct from actual governments, let us proceed to consider the parts of which a const.i.tution is composed.
Opinions differ more on this subject than with respect to the whole.
That a nation ought to have a const.i.tution, as a rule for the conduct of its government, is a simple question in which all men, not directly courtiers, will agree. It is only on the component parts that questions and opinions multiply.
But this difficulty, like every other, will diminish when put into a train of being rightly understood.
The first thing is, that a nation has a right to establish a const.i.tution.
Whether it exercises this right in the most judicious manner at first is quite another case. It exercises it agreeably to the judgment it possesses; and by continuing to do so, all errors will at last be exploded.
When this right is established in a nation, there is no fear that it will be employed to its own injury. A nation can have no interest in being wrong.
Though all the const.i.tutions of America are on one general principle, yet no two of them are exactly alike in their component parts, or in the distribution of the powers which they give to the actual governments.
Some are more, and others less complex.
In forming a const.i.tution, it is first necessary to consider what are the ends for which government is necessary? Secondly, what are the best means, and the least expensive, for accomplishing those ends?
Government is nothing more than a national a.s.sociation; and the object of this a.s.sociation is the good of all, as well individually as collectively. Every man wishes to pursue his occupation, and to enjoy the fruits of his labours and the produce of his property in peace and safety, and with the least possible expense. When these things are accomplished, all the objects for which government ought to be established are answered.
It has been customary to consider government under three distinct general heads. The legislative, the executive, and the judicial.
But if we permit our judgment to act uninc.u.mbered by the habit of multiplied terms, we can perceive no more than two divisions of power, of which civil government is composed, namely, that of legislating or enacting laws, and that of executing or administering them. Everything, therefore, appertaining to civil government, cla.s.ses itself under one or other of these two divisions.
So far as regards the execution of the laws, that which is called the judicial power, is strictly and properly the executive power of every country. It is that power to which every individual has appeal, and which causes the laws to be executed; neither have we any other clear idea with respect to the official execution of the laws. In England, and also in America and France, this power begins with the magistrate, and proceeds up through all the courts of judicature.
I leave to courtiers to explain what is meant by calling monarchy the executive power. It is merely a name in which acts of government are done; and any other, or none at all, would answer the same purpose. Laws have neither more nor less authority on this account. It must be from the justness of their principles, and the interest which a nation feels therein, that they derive support; if they require any other than this, it is a sign that something in the system of government is imperfect.
Laws difficult to be executed cannot be generally good.
With respect to the organization of the legislative power, different modes have been adopted in different countries. In America it is generally composed of two houses. In France it consists but of one, but in both countries, it is wholly by representation.
The case is, that mankind (from the long tyranny of a.s.sumed power) have had so few opportunities of making the necessary trials on modes and principles of government, in order to discover the best, that government is but now beginning to be known, and experience is yet wanting to determine many particulars.
The objections against two houses are, first, that there is an inconsistency in any part of a whole legislature, coming to a final determination by vote on any matter, whilst that matter, with respect to that whole, is yet only in a train of deliberation, and consequently open to new ill.u.s.trations.
Secondly, That by taking the vote on each, as a separate body, it always admits of the possibility, and is often the case in practice, that the minority governs the majority, and that, in some instances, to a degree of great inconsistency.
Thirdly, That two houses arbitrarily checking or controlling each other is inconsistent; because it cannot be proved on the principles of just representation, that either should be wiser or better than the other.
They may check in the wrong as well as in the right therefore to give the power where we cannot give the wisdom to use it, nor be a.s.sured of its being rightly used, renders the hazard at least equal to the precaution.*[21]
The objection against a single house is, that it is always in a condition of committing itself too soon.--But it should at the same time be remembered, that when there is a const.i.tution which defines the power, and establishes the principles within which a legislature shall act, there is already a more effectual check provided, and more powerfully operating, than any other check can be. For example,
Were a Bill to be brought into any of the American legislatures similar to that which was pa.s.sed into an act by the English parliament, at the commencement of George the First, to extend the duration of the a.s.semblies to a longer period than they now sit, the check is in the const.i.tution, which in effect says, Thus far shalt thou go and no further.
But in order to remove the objection against a single house (that of acting with too quick an impulse), and at the same time to avoid the inconsistencies, in some cases absurdities, arising from two houses, the following method has been proposed as an improvement upon both.
First, To have but one representation.
Secondly, To divide that representation, by lot, into two or three parts.
Thirdly, That every proposed bill shall be first debated in those parts by succession, that they may become the hearers of each other, but without taking any vote. After which the whole representation to a.s.semble for a general debate and determination by vote.
To this proposed improvement has been added another, for the purpose of keeping the representation in the state of constant renovation; which is, that one-third of the representation of each county, shall go out at the expiration of one year, and the number be replaced by new elections.
Another third at the expiration of the second year replaced in like manner, and every third year to be a general election.*[22]