Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 5 — Comparison to British Constitution; House of Commons]

In the course of this investigation I shall select those parts of the constitution of the British parliament, which in the opinion of one of its ablest advocates, constitutes it's superior excellence, and not unfrequently quote his opinions in his own words. To these I shall occasionally oppose the sentiments of later writers of his own country, on the same subject; the maxims of our own government, or the adaptation of those of the British government to the constitution of the United States: by these means I apprehend a fair comparison of their respective merits, as tending to promote the liberty and general happiness of the community, may be made.

I. The constituent parts of the British parliament, are, the house of commons, the house of lords, and the king, sitting there in his royal political capacity, in the union of which three estates the body politic of the kingdom consists. Analogous to which, though very differently constituted, we have seen the house of representatives and senate of the United States, and sub modo the president of the United States forming the general congress, or the supreme political legislature of the federal government. Thus far the great outlines of both governments appear to run parallel: they will however upon a nearer scrutiny be found frequently to diverge. We shall begin with the house of commons, which forms the democratical part of the British constitution.

"In a free state" says the author of the commentaries "every man who is supposed a free agent, ought to be in some measure his own governor, and therefore a branch at least of the legislative power should reside in the whole body of the people. In so large a state as Britain, therefore, it is very wisely contrived that the people should do that by their representatives, which it is impracticable to perform in person; representatives, chosen by a number of minute and separate districts, wherein all the voters are, or easily may be, distinguished 104." He adds, elsewhere, "in a democracy there can be no exercise of sovereignty, but by suffrage, which is the declaration of the people's will. In all democracies, therefore, it is of the utmost importance to regulate by whom and in what manner the suffrages are to be collected. In England where the people do not debate in a collective body, but by representation, the exercise of this sovereignty consists in the choice of representatives 105."

Such are the principles laid down by this distinguished writer, from whence one would be led to conclude that the elections for members of the house of commons were regulated in a manner as conformable thereto as possible. That where there was an equality of right, an equality of representation would also be found; and that the right of suffrage would be regulated by some uniform standard, so that the same class of men should not possess privileges in one place, which they are denied in another.

1. By equality of representation, it will be understood, that I mean the right which any given number of citizens possessing equal qualifications in respect to the right of suffrage, have, to an equal share in the councils of the nation by their representatives, as an equal number of their fellow citizens in any other part of the state enjoy.

In England and in Wales there are fifty-two counties, represented by knights 106, elected by the proprietors of lands; the cities and boroughs are represented by citizens and burgesses, chosen by the mercantile part, or supposed trading part of the nation .... The whole number of English representatives, is 513 and of Scots, 45. The members of boroughs now bear above a quadruple proportion to those for counties: from whence one would, at first, be apt to conclude, that the population or at least the number of electors in the counties were equal; and, that the boroughs were at least four times as populous as the counties, collectively. The former of these suppositions would be perfectly unfounded in truth; the latter perhaps may approach nearer to it. In truth, were the latter supposition well founded, the equality of representation would not be much advanced by it... In London which is supposed to contain near a seventh part of the number of the inhabitants of all England, they are entitled to four members only in parliament. The inconsiderable borough of Melcomb Regis in Dorsetshire sends as many. Manchester and Birmingham, two large populous, flourishing, manufacturing towns have no representative, whilst the depopulated borough of Old Sarum, without a house or an inhabitant, is the vehicle through which two members obtain their seats in parliament; a representation equal to that of the most populous county.

Many other corresponding instances might be adduced to prove the inequality of representation; but they are unnecessary .... In America the representation is in exact proportion to the inhabitants. Every part of the states is therefore equally represented, and consequently has an equal share in the government. Here the principle that the whole body of the people should have a share in the legislature, and every individual entitled to vote, possess an equal voice, is practically enforced.... In England it is a mere illusion.

It is but justice to acknowledge that attempts have repeatedly been made, to effect a reform in this part of the British constitution: the voice of the nation has more than once loudly demanded it... but their rulers, like the god Baal, have been otherwise employed; or deaf, or peradventure asleep, and could not be awaked.

2. As to the right of suffrage in the individual, nearly the same principle seems to prevail in respect to the qualification in lands, in both countries; and the different manner of ascertaining it, is not sufficient to require any remark. I shall only observe that copy-holders, whose interest, in almost every other respect in their lands, seem to be equal to that of a free-holder, (at least, such as have inheritances in them) are not admitted to the tight of suffrage. The proportion of copy-holders for life; or of inheritance, to the freehold tenants of the counties, I have never heard estimated: it is, however, very considerable.

"The right of voting in boroughs is various," says Blackstone, "depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes." It may vary no less perhaps in the different states of America, but there is this advantage, that however various, there can be little room for doubts, or disputes on the subject. In Virginia the qualification to vote in boroughs, is as fixed and invariable as in the counties. One principle however must not be lost sight of; which perhaps should have come under the last head. No borough can ever be entitled to a representative, whenever the number of inhabitants shall, for the space of seven years together, be less than half the number of the inhabitants of any county in Virginia. In England the boroughs retain the right of representation, as we have seen, even after they have lost their inhabitants. Another circumstance respecting them is no less notorious; though the right of suffrage is in the burgher, the power of sending the member to parliament is in the lord of the soil; a number of the boroughs being private property, and the burghers, who are tenants, bound to vote as their lord shall direct: the shadow of the right of suffrage is all these burghers possess.... to the exercise of that right they are as much strangers, as to the pyramids of Egypt, or the ruins of Palmyra. It is scarcely possible that the electors of America should ever be degraded to a similar state of political mechanism.

3. The qualification of the members is the next object of our comparison. In England a knight of the shire must possess an estate in lands of the value of 600£ sterling, per annum, and a member for a borough of one half that value, except the eldest sons of peers; and of persons qualified to be knights of shires, and members of the two universities.

This at first view appears to be a proper and necessary precaution, as far as it extends, to secure the independence of the members of that branch of the legislature. But this argument is neither conclusive in fact, nor even in theory. Neither of these sums is an adequate support for a man moving in the rank of a member of the British parliament. Luxury has taken too deep root in the nation to authorize the supposition generally; and if it fails in general, it is of little avail that a few instances may be found of persons in that sphere, whose expences do not exceed the requiste qualification in point of fortune. But if the principle be admitted that an independent fortune be necessary to secure the independence of the member in his legislative conduct, it would seem that the measure ought to be the same to all the members, since, according to the doctrine laid down by our author, a member though chosen by a particular district, when elected, serves the whole realm, the end of his election not being particular, but general. An equality of qualification should then have taken place; and if 600£ is necessary to secure the independence of the member, those who possess but half as much ought to be excluded; on the other hand, if 300£ be a competent sum for that purpose, how injurious must that law be to the rights of the citizen, which requires the qualification which is acknowledged to be sufficient for every good purpose, to be doubled. But a qualification in respect to estate is neither equally nor uniformly required; if the member elected should happen to be the eldest son of a peer, or of a person qualified to be, knight of the shire; in either of these cases it is altogether dispensed with. The effect of this, as it respects the former of these classes of men, we shall speak of hereafter. As to the latter, it is sufficient to say, that presumption is allowed to supply the place of evidence; and both the exceptions prove the deviation from the general principle to have originated in the influence of the aristocratical interest of the nation.

In America no qualification in point of estate is required in the representative in congress by the constitution; and perhaps we may with some propriety insist that any such qualification would be not only unnecessary, but contrary to the true interests of their constituents. In England the interests of the crown, of the nobles, and of the people, are confessedly distinct and often diametrically opposite. In America all are citizens possessing equal rights, in their civil capacities and relations; there are no distinct orders among us, except while in the actual exercise of their several political functions. When the member quits his seat, or the magistrate descends from the bench, he is instantly one of the people. The pageantry of office reaches not beyond the threshold of the place where it is exercised; and civil distinctions privileges or emoluments independent of the office are interdicted by the principles of our government. To secure the independence of the members conduct, perhaps no previous qualification, in point of estate may be requisite; though such a qualification might for another reason have been not improper: that by sharing in the burthens of government, he might be restrained from an undue imposition of them upon his constituents. The law of the state indeed requires that the representative should he a freeholder, as well as a resident in the district; but both these provisions, as they require qualifications which the constitution does not, may possibly be found to be nugatory, should any man possess a sufficient influence in a district in which he neither resides nor is a freeholder, to obtain a majority of the suffrages in his favor. But how strong soever the reasons in favour of a qualification in point of estate might have been, on the grounds last spoken of; they were overbalanced probably by two considerations.

First, that in a representative government, the people have an undoubted right to judge for themselves of the qualification of their delegate, and if their opinion of the integrity of their representative will supply the want of estate, there can be no reason for the government to interfere, by saying, that the latter must and shall overbalance the former.

Secondly; by requiring a qualification in estate it may often happen, that men the best qualified in other respects might be incapaciated from serving their country. To which we may add, that the compensation which the members receive for their services, is probably such an equivalent, as must secure them from undue influence, or concessions from motives of interest.

A second qualification required by the British constitution is, that the person elected shall be of the age of twenty-one years at the time of his election 107: ours with more caution and perhaps with better reason, requires that he shall have attained to the age of twenty-five years.

These are all the positive qualifications, in which there appears to be any very material difference worth remarking. Of negative ones, those which relate to the incapacity of certain descriptions of placemen and pensioners in England, are limited to a very small part of the host of the former who depend upon the crown for support; and in respect to the latter only such pensioners as hold during the pleasure of the crown, are excluded 108. A list of placemen and pensioners in either the present or last parliament of England was published some years ago.... I do not recollect their exact number, but I can be positive that it exceeded two hundred 109. A number, sufficient to secure the most unlimited influence in the crown: to these let us add the eldest sons of peers, and ask whether in a question between the commons and the nobility, it would be probable that they would give an independent vote, against the order in which they soon hoped to obtain a permanent rank and station.

Lastly, let me ask, if the conduct of those borough members who hold their seats by the appointment of members of the other house, or perhaps of their own, may reasonably be expected to be uninfluenced by the nod of their patrons? Can a house thus constituted be said to represent the people, the democratic part of the government? Can they be said to form a check upon the proceedings of the nobility, or the measures of the crown 110? The question only requires to be understood, to be answered decidedly in the negative.

We have seen that no person holding any office under the United States, shall be a member of either house during his continuance in office; and that no member of congress shall during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments thereof increased during such time 111. These provisions appear to be more effectual to secure the independence of the members, than any qualification in respect to estate: but, they seem not to have been carried quite far enough.

In the course of this parallel, we have seen that every deviation in the constitution of the United States from that of Great Britain has been attended with a decided advantage and superiority on the part of the former. We shall perhaps discover, before we dismiss the comparison between them, that all its defects arise from some degree of approximation to the nature of the British government.

The exclusive privileges of the house of commons, and of our house of representatives, with some small variation are the same. The first relative to money bills, in which no amendment is permitted to be made by the house of lords, is modified by our constitution so as to give the senate a concurrent right in every respect, except in the power of originating them; and this upon very proper principles; the senators not being distinguished from their fellow citizens by any exclusive privileges, and being in fact the representatives of the people, though chosen in a different manner from the, members of the other house; no good reason could be assigned why they should not have a voice on the several parts of a revenue bill, as well as on the whole taken together. The power of impeachment by the house of representatives corresponds, precisely with that of the British house of commons.

II. We are now to draw a parallel between the house of lords and the senate of the United States, as a second constituent part of the national legislature; and could the parallel between them end there, it might have been said, that all the branches of our political legislature, were, like a well chosen jury, omni exceptione majores.

The house of lords are to be considered in two distinct points of view.... First, as representing a distinct order of men, with exclusive privileges annexed to their individual capacity, and" secondly, as representing the nation.

1. As to the necessity of a distinct order of men in a state; with exclusive privileges annexed to the individual capacity, the author of the commentaries observes, "That the distinction of rank and honours is necessary in every well governed state, in order to reward such as are eminent for their public services, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious, yet laudable ardor, and generous emulation, in others. A spring of action, which however dangerous or invidious in a mere republic, will certainly be attended with good effects under a monarchy. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them only had a vote in electing representatives their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions 112."

The conclusion which evidently arises from the former part of this quotation, "that no mere republic can ever be a well governed state," inasmuch as honours and titles, the necessity of which, is here so pointedly urged, are dangerous and invidious in such a government, may be proved to be false; both, from reasoning and example. But it will be time enough to controvert our author's conclusion, when the truth of the principle upon which it is founded is established. The British constitution, with him, is somewhat like the bed of Procrustes; principles must he limited, extended, narrowed, or enlarged, to fit it. If they are not susceptible of so convenient a modification, they are to be wholly rejected.... But to return:

The vital principle of mixt governments is the distinction of of E3 orders, possessing, both collectively and individually, different rights, privileges or prerogatives. In an absolute monarchy, a confirmed aristocracy, or a pure democracy, this distinction cannot be found. There being no distinction of orders, there can be no contention about rights, in either of these forms of government, so long as the government remains in the full vigour of its constitution. When either of these three forms of government departs from its intrinsic nature, unless it assumes one of the other instead thereof, it becomes a mixt government.... And this mixture may consist in the combination of monarchy with aristocracy, as in Poland; or with democracy, as in France, under it's late constitution, as modelled by the national assembly, and ratified by the king; or, in the bleeding of the aristocratic and democratic forms, as was the case with the Roman Republic after the establishment of the tribunes; or of all three, as in the British constitution. The existence of either of these combinations are said to form the constitution of the state in all the governments of the world, except those of America, and France under it's late constitution; in these the constitution creates the powers that exist: In all others, the existing powers determine the nature of the constitution. To preserve those existing powers in their full tone and vigour, respectively, it may be necessary that each should possess an independent share in the supreme legislature, for the reasons assigned by the author of the commentaries; but this no more proves the necessity of the order, in a well governed state, than the necessity of wings to the human body would be proved, by a critical dissertation, on the structure, size, and position, of those of the fabulous deities of antiquity.

Our author considers those rewards which constitute a separate order of men; as attended with no burthen to the community; nothing can be more false than such a supposition. If the distinction be personal, only, it must be created at the expence of the personal degradation of the rest of the community, during the life of the distinguished person. If hereditary, this degradation is entailed upon the people: personal distinctions cannot be supported without power, or without wealth; these are the true supporters of the arms of nobility; take them away, the shield falls to the ground, and the pageantry of heraldry is trodden under foot 113. What character is less respected in England, than a poor Scotch lord, who is not one of the sixteen peers of that kingdom? That lord in his own clan, possesses comparative wealth and power sufficient among his humble dependents, to be looked up to as a Cræsus in wealth, and a Cæsar in authority.

"A titled nobility," says a late distinguished English writer 114, "is the most undisputed progeny of feudal barbarism. "Titles had in all nations denoted offices it was reserved for Gothic Europe, to attach them to ranks. Yet this conduct admits explanation, for with them offices were hereditary, and hence the titles denoting them became hereditary too. These distinctions only serve to unfit the nobility for obedience, and the people for freedom; to keep alive the discontent of the one, and to perpetuate the servility of the other; to deprive the one of the moderation that sinks them into citizens, and to rob the other of the spirit that exalts them into freemen. The possession of honours by the multitude, who have inherited, but not acquired them, engrosses and depreciates these incentives and rewards of virtue 115." If these are the genuine fruits of that laudable ardour, and generous emulation, which give life and vigour to the community, and sets all the wheels of government in motion, heaven protect those whom it encounters in it's progress.

But is their no stimulous to that laudable ardour and generous emulation which the commentator speaks of, to be found in a pure democracy, which may compensate for the absence of ranks and honors? Yes. VIRTUE; that principle which actuated the Bruti, a Camillus, and a Cato in the Roman republic, a Timoleon, an Aristides, and an Epaminondas among the Greeks, with thousands of their fellow citizens whose names are scarcely yet lost in the wreck of time. That principle whose operation we have seen in our own days and in our own country, and of which, examples will be quoted by posterity so long as the remembrance of American liberty shall continue among men.... "Virtue," says Montesquieu 116, "in a republic is a most simple thing; it is a love of the republic. Love of the republic in a democracy is a love of the democracy: love of the democracy is that of equality. The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our own country than the rest of our fellow citizens.... But all cannot render equal services: hence distinctions arise here from the principle of equality, even when it seems to be removed, by signal services, or superior abilities."

This distinction, the only one which is reconcileable to the genius and principle of a pure republic, is, if we may reason from effect to cause 117, the most powerful incentive to good government that can animate the human heart, with this advantage over those hereditary honors for which the commentator is so zealous an advocate, that the ambition excited by the former must of necessity be directed to the public good, whilst the latter springing from self love, alone, may exist in the breast of a Cæsar or a Cataline. A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them. Their heads like the mountain pine are seen above the surrounding trees of the forest, but their roots engross not a larger portion of the soil.

Equality of rights, in like manner, precludes not that distinction which superiority in virtue introduces among the citizens of a republic. Washington in retirement was equal, and only equal, in rights, to the poorest citizen of the state. Yet in the midst of that retirement the elevation of his character was superior to that of any prince in the universe, and the lustre of it far transcended the brightest diadem.

But even where it is conceded that distinctions of rank and honours were necessary to good government, it would by no means follow that they should be hereditary; the same laudable ardour which leads to the acquisition of honor, is not necessary to the preservation of its badges; and these are all which it's hereditary possessors, in general, regard. Had nature in her operations shewn that the same vigour of mind and activity of virtue which manifests itself in a father, descends unimpaired to his son, and from him to latest posterity, in the same order of succession, that his estate may be limited to, some appearance of reason in favour of hereditary rank and honors might have been offered. But nature in every place, and in every age, has contradicted, and still contradicts this theory 118. The sons of Junius Brutus were traitors to the republic; the emperor Commodus was the son of Antoninus the philosopher; and Domitian was at once the son of Vespasian, and the brother of Titus.

If what has been said be a sufficient answer to the necessity of the distinction of ranks and honors to the well government of a state, the commentator himself 119 hath afforded an unanswerable argument against their expedience in a republic, by acknowledging them to be both dangerous and invidious in such a government. And herewith agrees the author of the Spirit of Laws 120, who informs us, that the principle of a democracy is corrupted, when the spirit of equality is extinct. The same admirable writer 121 gives us a further reason why so heterogeneous a mixture ought not to have a place in any government where the freedom and happiness of the people is thought an object worthy the attention of the government "A nobility," says he, "think it an honour to obey a king, but consider it as the lowest infamy to share the power with the people."

We are indebted to the same author 122, for the following distinguished features of aristocracy: "If the reigning families observe the laws, aristocracy is a monarchy with several monarchs: but when they do not observe them, it is a despotic state governed by a great many despotic princes. In this case the republic consists only in respect to the nobles, and among them only. It is in the governing body; and the despotic state is in the body governed. The extremity of corruption is when the power of the nobles becomes hereditary they can hardly then have any moderation." Such is the picture of that order of men who are elevated above the people by the distinctions of rank and honours. When the subjects of a monarchy, they are the pillars of the throne, as the commentator stiles them; or, according to Montesquieu, the tools of the monarch.... When rulers, as in an aristocracy, they are the despots of the people.... In a mixed government, they are the political Janisaries of the state, supporting and insulting the throne by turns, but still threatening and enslaving the people 123.

In America the Senate are not a distinct order of individuals, but, the second branch of the national legislature, taken collectively. They have no privileges, but such as are common to the members of the house of representatives, and of the several state legislatures: We have seen that these privileges extend only to an exemption from personal arrests, in certain cases, and that it is utterly lost, in cases of treason, felony, or breach of the peace. They more properly the privileges of the constituents, than of the members, since it is possible that a state might have no representative, and the United States no legislature, if the members might be restrained from attending their duty, by process issued at the suit of a creditor, or other person who might suppose he had cause of action against them. In England the privileges of the peerage are in some instances an insult to the morals of the people, the honour of a peer, on several occasions, being equipollent with the oath of a commoner. The exemption from personal arrests in civil cases is extended as well to his servant, as to the lord of parliament; to the injury of creditors, and the no small encouragement of fraud and knavery. And the statutes of scandalum magnatum hang in terrorem over the heads of those who dare to scrutinize, or to question the reality of those superior endowments which the law ascribes, to the immaculate, character of a peer or peeress of the realm. Happy for America that her constitution 124 and the genius of her people, equally secure her against the introduction of such a pernicious and destructive class of men 125.

104. 1. Blacks. Com. p. 158. 159.

105. 1. Blacks. Com. p. 170.

106. Ibid. p. 116. 159. Every county in England sends two knights of the shire to parliament: the county of Merionethshire in Wales; only, has but one. See Jacob's Law Dictionary. Tit. Knights of the Shire.

As to the electors in boroughs &c. see Federalist, No. 56.

107. 1. Black. Com. p. 162.

108. Ibid 175, 176.

109. The number mentioned in Burgh's Pol. Disq. vol. 2. p. 44.

110. Mackintosh's defence of the Fr. revolution p. 262. to 269, 334. to 340.

111. C. U. S. Art. 1. Sec. 6

112. 1. B. C. 157, 158.

113. George Nevil, duke of Bedford, was degraded by act of parliament, because of his poverty, 12, Rep. 107.

114. Mackintosh on the French Revolution. p. 77.

115. Mackintosh on the French Revolution, p. 82.

116. Esprit des Loix , lib. 1. c. 2. 3.

117. The greatest characters the world has known, have risen on the democratic floor. Aristocracy has not been able to keep a proportionate pace with democracy. The artificial noble shrinks into a dwarf before the noble of nature.
Paine's Rights of Man, 45.

118. Paine's Rights of Man, 45.

119. 1 Vol. p. 157.

120. 1 Vol. p. 159.

121. 1 Vol. p. 163.

122. 1 Vol. p. 164.

123. It often happens that the contest for power is betwixt the prince and nobles, the people having been previously enslaved. In this case, the form of government is variable so far as relates to the prince and nobility; but the slavery of the people is lasting.

It would be a very happy thing in an aristocracy, if, by some indirect means or other, the people could be emancipated front their state of annihilation.
Montesquieu, Vol. 1. p. 16.

124. C. U. S. Art. 1. Sec. 9, 10.

125. An alien applying to be admitted to citizenship in the United States, who shall have borne any hereditary title, or been of any of the orders of nobility, in any other kingdom or state, must make an express renunciation thereof in court, at the time of his admission. L. U. S. 3. Cong. c. 85.

E3. The word "of" was doubled in the original text. Perhaps a typesetter error.

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