[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].



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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.