« AnteriorContinuar »
dizement which his situation offers, and which the
price of his vote will always purchase. All appeal to
the people is precluded by the impossibility of collecting a sufficient proportion of their force and numbers. The factions and the unanimity of the senate are equally dangerous. Add to these considerations, that in a democratic constitution the mechanism is too complicated, and the motions too slow, for the operations of a great empire, whose defence and government require execution and dispatch, in proportion to the magnitude, extent, and variety of its concerns. There is weight, no doubt, in these reasons; but much of the objection seems to be done away by the contrivance of a federal republic, which, distributing the country into districts of a commodious extent, and leaving to each district its internal legislation, reserves to a convention of the states the adjustment of their relative claims; the levying, direction, and government of the common force of the confederacy; the requisition of subsidies for the support of this force; the making of peace and war; the entering into treaties; the regulation of foreign commerce; the equalization of duties upon imports, so as to prevent the defrauding of the revenue of one province by smuggling articles of taxation from the borders of another; and likewise so as to guard against undue partialities in the encouragement of trade. To what limits such a republic might, without inconveniency, enlarge its dominions, by assuming neighbouring provinces into the confederation; or how far it is capable of uniting the liberty of a small commonwealth with the safety of a powerful empire; or whether, amongst coordinate powers, dissensions and jealousies would not be likely to arise, which, for want of a common superior, might proceed to fatal extremities; are questions, upon which the records of mankind do not authorize us to decide with tolerable certainty. The experiment is about to be tried in America upon a large scale.
OF THE BRITISH CONSTITUTION.
By the constitution of a country is meant so much of its law as relates to the designation and form of the legislature; the rights and functions of the several parts of the legislative body; the construction, office, and jurisdiction of courts of justice. The constitution is one principal division, section, or title of the code of public laws; distinguished from the rest only by the superior importance of the subject of which it treats. Therefore the terms constitutional and unconstitutional mean legal and illegal. The distinction and the ideas which these terms denote are founded in the same authority with the law of the land upon any other subject; and to be ascertained by the same inquiries. In England, the system of public jurisprudence is made up of acts of parliament, of decisions of courts of law, and of immemorial usages; consequently, these are the principles of which the English constitution itself consists, the sources from which all our knowledge of its nature and limitations is to be deduced, and the authorities to which all appeal ought to be made, and by which every constitutional doubt and question can alone be decided. This plain and intelligible definition is the more necessary to be preserved in our thoughts, as some writers upon the subject absurdly confound what is constitutional with what is expedient; pronouncing forthwith a measure to be unconstitutional, which they adjudge in any respect to be detrimental or dangerous: whilst others, again, ascribe a kind of transcendant authority, or mysterious sanctity, to the constitution, as if it were founded in some higher original than that which gives force and obligation to the ordinary laws and statutes of the realm, or were inviolable on any other account than its intrinsic utility. An act of parliament in England can never be unconstitutional, in the strict and proper acceptation of the term; in a lower sense it may, viz. when it militates with the spirit, contradicts the analogy, or defeats the provision of other laws, made to regulate the form of government. Even that flagitious abuse of their trust, by which a parliament of Henry the Eighth conferred upon the king's proclamation the authority of law, was unconstitutional only in this latter sense. Most of those who treat of the British constitution consider it as a scheme of government formally planned and contrived by our ancestors, in some certain era of our national history, and as set up in pursuance of such regular plan and design. Something of this sort is secretly supposed, or referred to, in the expressions of those who speak of the “principles of the constitution,” of bringing back the constitution to its “first principles,” of restoring it to its “original purity,” or “primitive model.” Now this appears to me an erroneous conception of the subject. No such plan was ever formed; consequently no such first principles, original model, or standard, exist: I mean, there never was a date or point of time in our history, when the government of England was to be set up anew, and when it was referred to any single person, or assembly, or committee, to frame a charter for the future government of the country; or when a constitution so prepared and digested was by common consent received and established. In the time of the civil wars, or rather between the death of Charles the First and the restoration of his son, many such projects were published, but none were carried into execution. The Great Charter and the Bill of Rights were wise and strenuous efforts to obtain security against certain abuses of regal power, by which the subject had been formerly aggrieved : but these were, either of them, much too partial modifications of the constitution, to give it a new original. The constitution of England, like that of most countries of Europe, hath grown out of occasion and emergency;
from the fluctuating policy of different ages; from the contentions, successes, interests, and opportunities of different orders and parties of men in the community. It resembles one of those old mansions, which, instead of being built all at once, after a regular plan, and according to the rules of architecture at present established, has been reared in different ages of the art, has been altered from time to time, and has been continually receiving additions and repairs, suited to the taste, fortune, or conveniency of its successive proprietors. In such a building, we look in vain for the elegance and proportion, for the just order and correspondence of parts, which we expect in a modern edifice; and which external symmetry, after all, contributes much more perhaps to the amusement of the beholder than the accommodation of the inhabitant.
In the British, and possibly in all other constitutions, there exists a wide difference between the actual state of the government and the theory. The one results from the other; but still they are different. When we contemplate the theory of the British government, we see the king invested with the most absolute personal impunity; with a power of rejecting laws, which have been resolved upon by both houses of parliament; of conferring by his charter, upon any set or succession of men he pleases, the privilege of sending representatives into one house of parliament, as by his immediate appointment he can place whom he will in the other. What is this, a foreigner might ask, but a more circuitous despotism? Yet, when we turn our attention from the legal extent to the actual exercise of royal authority in England, we see these formidable prerogatives dwindled into mere ceremonies; and, in their stead, a sure and commanding influence, of which the constitution, it seems, is totally ignorant, growing out of that enormous patronage which the increased territory and opulence of the empire have placed in the disposal of the executive magistrate.
Upon questions of reform, the habit of reflection to be encouraged is a sober comparison of the constitution under which we live, not with models of speculative perfection, but with the actual chance of obtaining a better. This turn of thought will generate a political disposition, equally removed from that puerile admiration of present establishments, which sees no fault, and can endure no change; and that distempered sensibility, which is alive only to perceptions of inconveniency, and is too impatient to be delivered from the uneasiness which it feels, to compute either the peril or expense of the remedy. Political innovations commonly produce many effects beside those that are intended. The direct consequence is often the least important. Incidental, remote, and unthought of evils or advantages frequently exceed the good that is designed, or the mischief that is foreseen. It is from the silent and unobserved operation, from the obscure progress of causes set at work for different purposes, that the greatest revolutions take their rise. When Elizabeth and her immediate successor applied themselves to the encouragement and regulation of trade by many wise laws, they knew not, that, together with wealth and industry, they were diffusing a consciousness of strength and independency, which would not long endure, under the forms of a mixed government, the dominion of arbitrary princes. When it was debated whether the mutiny act, the law by which the army is governed and maintained, should be temporary or perpetual, little else probably occurred to the advocates of an annual bill than the expediency of retaining a control over the most dangerous prerogative of the crown, the direction and command of a standing army; whereas, in its effect, this single reservation has altered the whole frame and quality of the British constitution. For since, in consequence of the military system which prevails in neighbouring and rival nations, as well as on account of the internal exigencies of government, a standing army has become essential to the safety