Tucker's Blackstone

Volume 1 — Appendix
Note D

[Section 6 — Comparison to British Constitution; House of Lords]

Secondly. We shall now consider the British house of lords, as representing the nation.

The superior degree of wisdom which is to be found in aristocracies, forms the principal argument in favour of this branch of the British legislature. Let us examine how far this requisite to national councils, is to be attained by the constitution of that house.

1. The house of lords is composed either of new made peers, or of such to whom that honor has been transmitted by hereditary right; we may admit, though the fact will hardly justify it, that the new made peers have a chance of being selected for their superior wisdom; nay that this is universally the case; the portion of wisdom thus acquired, even in the creative reign of George the third, could never he sufficient to counterbalance the large majority of hereditary peers, who affect to hold in great contempt the talents and learning of their new created brethren. The wisdom of this body rests then upon the chance of natural talents, with the advantages of education to improve and mature them. As to the latter, should we admit that a child, who, from the moment he is capable of making any observation, sees himself treated as a superior being, would have the same stimulus to improve, as one who is taught to consider the road to science as the only one which leads to distinction, no advantage could be claimed in favour of the hereditary legislator, unless it should be proved that the benefits of education are necessarily confined to that class of men .... The question rests then solely upon the mode by which the nobility become legislators, and here every argument against the transmission of talents and virtue in hereditary succession, recurs with accumulated force, the chance of this inheritance being confined by the laws to the eldest son 126.

The senate of the United States, as we have seen, is composed of individuals selected for their probity, attachment to their country, and talents, by the legislatures of the respective states. They must be citizens of the states for which they are chosen .... their merits must be known, must have been distinguished, and respected. Age must have matured the talents, and confirmed the virtues which dawned with childhood, or shine forth with youth. Principles must have been manifested, and conduct have evinced their rectitude, energy, and stability .... Equivocation of character can scarcely obtain admittance where the trust is important, elections rare, and limited to an individual, or, at most, to two. The whole number of senators are at present limited to thirty-two .... it is not probable that they will ever exceed fifty .... A late writer 127 has observed, that an assembly of Newtons, if they exceeded a hundred, would be a mob. The British house of peers consists of twice that number at the least, and may be encreased, at the will of the prince, to any number 128 .... The senators of America have the interest of a state to promote, or to defend. A British house of peers has the privileges of the order, the interests of the corporation of aristocracy, to advance. Their wisdom, their exertions, are directed to their own personal aggrandizement .... Those of an American senator can scarcely find an object, except the good of the nation, or of the individual state which he represents. A peer holds himself responsible to no one for his conduct; a senator is responsible to his constituents, and if he abuses their confidence, will be sure to be displaced, whilst the former hugs himself in the security and stability of his station. I say nothing of the bench of bishops. The independence of that body has been too frequently questioned to render them respectable, even in the eyes of their own nation, as a part of the legislature.

A member of the house of lords, may make another lord his proxy 129, to vote for him in his absence; a privilege which he is supposed to derive from sitting there in his own right; and not as one of the representatives of the nation. He may likewise, by leave of parliament enter his protest against any measure, analogous to which we have seen that the yeas and nays of either house of congress shall be called, if one fifth part of the members present concur therein 130.

The lord chancellor, or any other person appointed by the king's commission is speaker of the house of lords 131; and if none be so appointed, the house of lords may elect; and if the speaker be a lord of parliament he may also give his opinion upon any question which the speaker of the commons cannot .... The vice president of the United States is in like manner speaker of the senate, but he is prohibited from voting unless the senate be equally divided 132. The necessity of providing for the case of a vacancy in the office of president doubtless gave rise to the creation of this officer: and for want of something else for him to do, whilst there is a president in office, he seems to have been placed, with no very great propriety, in the chair of the senate. An idea probably originating from the tendency which we have sometimes discovered, to imitate the model of the British constitution. The casting vote, which this officer is entrusted with, (as was before observed,) is a very important trust, and ought to have been so modified as to leave the exercise of it, to as few cases as possible .... If a measure originates in the senate, indeed, it would seem to be less dangerous, to permit the exercise of this casting vote, than where it was made use of; to negative a measure, perhaps unanimously adopted by the other house, and upon which the senate have been divided merely from the absence of some of it's members. This has actually happened once, on a very important occasion, as we have seen, and may happen again, on others equally interesting to the rights of the citizen.

3. The third constituent part of the British parliament, is the king, without whose assent no bill can pass into a law. The reason for this seems to be the protection of the Jura Coronæ from the encroachments of the legislature, but this protection, says the Commentator 133, consists in the power of rejecting rather than resolving: in like manner we have seen, that the president of the United States to, whom the executive power is entrusted, has a kind of suspensive veto .... not an absolute, but a qualified negative; and so qualified too, that no salutary measure can be so long delayed by his objection to it, if two thirds of both houses concur in the expediency 134. In England since the revolution, the royal negative, as to the practical and ostensible exercise of it, seems to be a mere fiction of the constitution, the influence of the crown in both houses, having always proved sufficient to prevent the obtrusion of any obnoxious bill upon the throne; as has been proved on more than one occasion. The power of calling up any number of new lords, ad libitum, is a sufficient guarantee against the necessity of exercising this unpopular prerogative in the crown. But if that were to be found insufficient, a prorogation which puts an end to all matters depending in parliament would effectually answer the purpose .... And should the parliament upon being re-assembled give any indications of reviving the offensive subject, a disolution is sure to pave the way for a more complying body in the house of commons. The history of the present administration in England affords facts to justify what has here been offered 135 .... In America the executive authority does not extend to the creating new members of the legislature: the president has no power of dissolution, or prorogation, nor even of adjournment, but in case of actual disagreement on that subject between the two houses. His assent if held longer than ten days exclusive of Sundays; is not necessary to the force of a law; and his negative, if it be exercised at all, must be notified within the same period to congress, together with his reasons in support of it: if they should be deemed insufficient for the rejection of the bill by two thirds of both houses, it will become a law without his approbation: which seems rather to have been intended as a precaution, provided by the constitution against the hasty passage of impolitic, or unconstitutional acts, than as an essential to the completion of a law; as we have before observed.

This concludes a short sketch of the constituent parts of the supreme legislatures of Great Britain and the U. States, with a parallel between them, and the mutual checks and balances provided by the constitution of both countries against the possible encroachments of one of these constituent parts upon the rights of the other. A late English writer 136 of popular eminence, undertakes to prove that these governments of balance and controul have never existed but in the vision of theorists. I leave the affirmative to be proved by the advocates for the British constitution, confessing that my own conviction inclines rather to the doctrines of the political heretic, than to those of the most orthodox supporters of the creed which he controverts. But before I quit the subject of checks and balances, I shall say a few words on those required by the political situation, and provided by the constitution of the United States.

The territory of the United States extends along the seacoast from north to south, about one thousand miles, and westward from the coast about eight hundred, affording a variety of productions, and holding forth a variety of pursuits to the inhabitants, corresponding with that of climate, soil and situation .... To secure an equal representation of the interests of the individuals inhabiting this extensive country, united in one political bond, as to their correspondence and intercourse with the other nations of the globe, the house of representatives was constituted upon the principles of equality and reciprocity, between burthens and representation in the manner that we have already seen. But although the interests of the individuals might be common in many respects, throughout the United States, yet the territorial, as well as political division, constitution and laws of the several states, created or manifested a contrariety of interests between them, which all were perhaps equally tenacious of maintaining unimpared. The territorial extent of Virginia being at least one hundred times as great as that of Delaware, and her representation in the proportion of nineteen to one, at present; the interest of the latter could never stand in competition with the former, if the whole legislature were composed of a single house constituted as the house of representatives is: but in the senate, Delaware, as a state; has an equal share in council with Virginia. Her separate interests are there put upon the same footing, with those of the largest states in the union, nor can she be oppressed, but in such a case as would render any other state liable to the same fate. This appears to me to be a wise and effectual balance. Should it fail, the suspensive negative of the president may counteract the machinations of an oppressive majority, in either, or both houses of congress by requiring, the concurrence of a larger proportion of both, than are likely to agree in any impolitic, unconstitutional, or partial measure. On the other hand should state interest prevail in the senate it would meet an effectual check in the house of representatives, where the number of members is not regulated by states, but by the right of suffrage. The influence of states on the latter house, can never be so great hereafter, as it was during the first and second congress, after the adoption of the constitution; that influence received a check from the negative of the president 137 which restored the constitution to it's principles, and manifested the happy effects to be derived from a well organized government, so long as any part of it remains uninfluenced by partial or corrupt motives.

Before we dismiss our parallel, a short notice of some other points may not be improper. And first, the privileges of the parliament of England 138, and of it's members, are indefinite, and depend upon their own construction of them when a new case occurs. In America the privileges of the members of congress are, as we have seen, defined, and I presume limited, by the constitution 139; and the powers of congress are equally prescribed thereby, whilst those of the British parliament have no constitutional limits whatsoever, "and if by any means a misgovernment should any way fall upon it, the subjects of the kingdom are left without all manner of remedy 140." In America two methods are pointed out, by which any defects in the constitution may be remedied; and, should congress prove too corrupt to adopt the one, it is in the power of the state legislatures to enforce the other 141; besides the chance which frequent elections afford, of remedying an evil before it has taken root in the several branches of government too firmly to be eradicated. Frequent elections of the representatives of the people, have been justly esteemed one of the best securities to the liberties of the people. The most frequent elections of parliaments in England have been triennial .... they have been protracted to seven years, professedly says Blackstone 142, to prevent the great and continued expences of frequent elections. Frequent elections would certainly offer the most effectual remedy for this evil, by diminishing that parliamentary influence which septennial elections tend to secure, and to secure which is the great object of election expences. Whether biennial election of representatives to congress will be sufficiently frequent to secure the due dependence of the members upon their constituents, must be ascertained by experiment. I incline to think, that the reasons in favour of that period are at least equal to those against it 143. Every objection against it's extension beyond the period assigned to the duration of our state legislature, must apply with accumulated force against the duration of the parliament of Great Britain. In England, the convening of the parliament, the continuance of the session, and the existence of the parliament depend on the pleasure of the crown. In America, the periods of election, convening, and duration of congress are fixed by the constitution or by law: the adjournments depend upon themselves, the executive have no controul over any matter relative thereto, except in one instance before mentioned, and that must arise from a disagreement between the houses. In England, forty-five members constitute a house to do business, where the whole number consists of 558. In America there must be a majority of both houses to constitute a quorum 144.

126. The right of primogeniture to the inheritance of virtue and talents, has always appeared to be questionable, if we may draw our conclusion from the authority of the sacred scriptures. The first born son of the first man, was a murderer. The first born son of Abraham, (by a concubine it must be confessed,) was an outcast from society; his hand was against every man, and every man's hand against him .... The first born son of Isaac was, by the dispensations of the divine providence, postponed to his younger brother; the first born of Jacob went up unto his father's bed, and defiled it; and the sceptre was transmitted to the race of Judah; the first born of Jesse, appeared worthy in the sight the prophet, but he, with six of his brethren, was rejected in favour of David the youngest and the first born of that same David, was by the same providence set aside in favour of Solomon his youngest son.

127. Mackintosh.

128. The temporal peers of Great Britain are said to amount to two hundred and twenty at this time.

129. 1. Black. Com. p. 168.

130. C. U. S. Art. 1. s. 5.

131. 1. Black. Com. p. 181.

132. C. U. S. Art. 1. s. 3.

133. Vol I. p. 154.

134. C. U. S. Art. 1. Sec. 7.

135. In the reign of queen Anne, there was a creation of twelve new peers at once, in order to secure a majority in the house of lords against a bill which had been sent up by the commons, and had passed one or two readings in the other house. The passage of the India bill, which was introduced in the house of commons during the administration of Charles Fox and Lord North, was prevented by a similar expedient, and those obnoxious ministers were dismissed from the service of the crown after midnight: of the same evening when the determination was obtained .... The dissolution of the parliament, in which there was an evident majority against the new ministry, followed soon after, and secured the tranquility of their administration, by a decided majority in the new house of commons.

136. Mackintosh.

137. The bill for apportioning representatives among the states, was negatived by the president, as contrary to constitutional principles. A new bill was afterwards introduced and passed, there not being a majority of two thirds of either house, in favour of the former .... 2. Cong. 1. Sess. 1792.

138. Black. Com. p. 160, 164, 165.

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

140. 1. Black. Com. p. 161.

141. C. U. S. Art. 5.

142. Vol. 1. p. 189.

143. Federalist Vol. 2. p. 124, to 135.

144. The manner of conducting the business in congress is very similar to that observed in the British parliament. At the opening of the session, the president meets the congress in one or other of their chambers, and addresses them upon the general affairs of the union. This address has generally received a separate answer from each house, which is presented by the whole house, to the president in his audience chamber, that is, at his own house. Every resolution to which the concurrence of the senate is necessary, must be laid upon the table on a day preceding that, in which it is moved, unless, by express commission of the house. Petitions, memorials, &c. addressed to the house must be proceeded upon in like manner. Bills are introduced by motion for leave, or by order of the house on the report of a committee, and in either case a committee is appointed to prepare the bill. Revenue bills, as was observed elsewhere, must originate in the house of representatives; but the senate may originate any other bill, and may also propose, or concur to amendments, in revenue bills, as well as others. As the senate constitutes a part of the executive department, this power of origination must have a strong tendency to strengthen, and give activity to that branch of the government 145. Every bill receives three readings; but no bill can be twice read on the same day without special order of the house. If upon the first reading of a bill it be opposed, the question put is, whether it shall be rejected; upon the second reading, the speaker states that it is ready for commitment or engrossment. The commitment may be either to a select committee or to the whole house. In a committee of the whole, the speaker quits the chair, and a chairman is appointed, who, when the committee rises, reports to the house the progress therein made. After commitment and report, a bill may be recommitted, or at any time after, before its passage. Previous to the third reading of a bill, it is ordered to he engrossed, or written in a fair round hand; when passed in the house of representatives, it is sent to the senate for concurrence. Bills, except for imposing taxes, may originate in either house. If an amendment be agreed to, in one house, and dissented to in the other, if either house request a conference, a committee is appointed in each house to meet in the conference chamber, to state to each other, verbally, or in writing the reasons of their respective houses, for and against the amendment. After a bill has passed both houses it is enrolled on parchment, examined by a joint committee of both houses, signed by the speaker of the house of representatives, and president of the senate, and is then presented by the committee of enrolment to the president of the United States for his approbation; with an indorsement thereon, specifying in which house it originated, and the day of presentation is entered on the Journals of such house. 146 If the president approve the bill, he signs it 147; it is then received from him by the secretary of state, recorded, and deposited among the rolls in his office; a copy of it is published in at least three of the public papers, and one printed copy is delivered to each senator and representative, and two others, duly authenticated, are sent to the executive authority of each state. The same course is to be observed, where a bill is not returned by the president, within the time limited by the constitution, and thereby becomes a law: or, having been returned, reconsidered, and approved by two thirds of both houses, becomes law. 148 The manner of proceeding in case a bill be not approved and signed by the president, has been already fully mentioned, in this Appendix.

145. See De Lolme, B. 2. c. 4. and 5.

146. Rules and Orders of the House of Representatives.

147. C. U. S. Article 1. Sect. 7.

148. L. U. S. 1. Congress. 1. Session, c. 14.

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