Mandeville, LA – This is the 3rd chapetr of John Taylor’s work ‘An Inquiry into the Principles and Policy of the Government of the United States” written chiefly as a response to John Adams’ “Defence of the Constitutions of The United States”. This chapter lays out Taylor’s belief that no system of government that ever stray from [r]epublican forms can remain free of corruption. You can listen to Taylor’s view of this work and why it was necessary in my audio “Docudromedy” – “What Lincoln Killed-EPISODE I”.
Section the Third
THE EVIL MORAL PRINCIPLES OF THE GOVERNMENT OF THE UNITED STATES
Let us venture to explore this country. Moral principles constitute the criterion for estimating the nature of a form of government. The number or arrangement of its administrators are such evidences of its nature, as the number and arrangement of a parterre of flowers, are of their botanical characters. Each species of the ancient analysis is bad. An analysis, which neither discloses the best, or even a good form of government, is suspicious, and excites a doubt, whether one of its evils, or a mixture of all three, is the true remedy against another. If the numerical analysis of government was superseded by one composed of principles, our attention would be attracted towards those principles. Mankind would estimate them, and discover which would infuse good, and which bad qualities. This classification of principles, would enable them to class governments, with equal precision; and the oscillation between forms, all bad, would cease.
The first part of this essay was appropriated to the establishment of a correct idea of aristocracy, and to unfolding the principles of the most eminent forms of government, ancient and modern, quoted by Mr. Adams; and the second, to an exhibition of the wide and substantial difference between these principles, and those of our policy; of Mr. Adam’s inaccuracy in coercing the policy of the United States within the pale of the English balances, by the help of the old numerical analysis; and of the influence of moral principles upon the nature of governments. If such an influence exists, nothing can be more important to a nation than to understand it.
As the progress in political knowledge cannot be continued, except by an unremitting vigilance to discover interpolations of bad political principles among good, several sections will be appropriated to that object; reserving the pleasure of commemorating the beauties of our policy, as a compensation for discharging this irksome duty.
A dissection of our operating policy, however unpleasant, must be useful. We are indebted to the knife of the anatomist for a knowledge of the human body; this knowledge would have been infinitely more necessary, had men made men; without it, all human constitutions would have been rendered unsound, by mismatching their parts. Men do make governments, and have universally created unsound political bodies, by patching together hereditary orders and election, or separate interests and election; not perceiving, that one of these qualities has never failed to poison or maim the other.
But before we proceed to the proposed criticism, the test for detecting the nonconformity of any part to the element of our policy, must be again brought before the reader. It must be thoroughly understood to estimate our remarks. This consists of a political analysis built upon the moral foundation, that men are naturally both virtuous and vicious; and that they possess a power of regulating motives, or electing principles, which will cultivate either virtue or vice. Upon this ground, government is concluded to be a moral agent, which will be actuated by good or evil moral qualities; and that its qualities will certainly correspond with the principles by which it is created.
An eminent author, contends for a moral necessity, and a passive obedience to motives, uncontrollable by the agent. This essay proceeds upon an opinion, that man can regulate motives, and enjoys a volition, adequate to the election of virtue, and the rejection of vice. Mr. Godwin allows man to owe duties. He ought, says that author, to deliver truth ‘with a spirit of universal kindness, with no narrow resentments or angry invectives.’∗ If he is the passive instrument of motives beyond his control, and deprived of volition, is it not unreasonable to require of him duties which he has no power to fulfil?
He farther observes, ‘that man is not originally vicious.’† What then made him so? His motives impelled him to commit evil. Whence came these motives? If they followed man naturally, the assertion is untenable; if not, they must be artificial or factitious, voluntary and subject to election. Again. ‘Ambition is common to all men.’‡ Is this vice, both universal, and also not natural or original? If it is factitious or voluntary, why may not the factitious principle of dividing power, so confidently condemned by Mr. Godwin, control it? But whether it is voluntary or involuntary, it may be inflamed, regulated or suppressed by motives. If a man is merely the automaton of motives, a nation may operate upon the individuals who are publick agents, by a set of motives calculated to impel to virtue or vice. Division and responsibility will impel to virtue; aggregated or undivided power will impel to vice. And if the doctrine of necessity and a passive obedience to motives is true, mankind only have to expose their governours to such as excite to good, and to shield them against those which excite to evil.
It is certainly true, that man is invariably guided by motives; and though it may be questioned, whether an individual has a power of creating or controlling his own motives, yet it cannot be denied, that others are able to influence him by motives which they can regulate. Those who compose governments or laws, may infuse into them motives to excite avarice and ambition, or liberality and patriotism.
But however metaphysicians may amuse the learned, by arguments in relation to fate and free will, politicians ought to be guided by the obvious and active qualities of human nature. In supposing moral events to be capable of regulation by causes which men can govern, such as knowledge, division of wealth and power, and responsibility; and in supposing the moral qualities of man to be good and evil, and that either one or the other may be excited; there is no deviation from the ostensible phenomena of human nature. And as government is exercised by man, all its virtues and vices must be human; wherefore, there does not seem more difficulty in ascertaining the principles or qualities which will constitute a good or a bad government, than in ascertaining those which will constitute a good or a bad man; nor more impropriety in reducing all governments to the two classes, of those founded in good, and those founded in evil moral principles, than in reducing all men to the two classes of good and bad. Bad or good principles may be infused into governments by constitutions, with more certainty than into men by education; and therefore a government corrupted by an infusion of bad principles, can more justly complain of the nation for making it wicked, than the nation can complain of the government for making it miserable.
It was not the policy nor intention of the United States to excite the evil qualities of ambition or avarice, but to suppress them; nor to form a government compounded of parts, some of which would be calculated to excite these qualities, so as to produce a perpetual spirit of discord and uneasiness, similar to what passes in that man’s mind, whose virtues and vices are in a state of warfare with each other.
Yet, it would have been wonderful, in the first experiment to erect a government upon good moral principles and the right of self-rule, if no oversight had happened. It would have been more wonderful, if no impression had been made by a depreciated debt, which from pebbles in the ocean of society, might, by a species of political diving, be made pearls in the hands of individuals. It might have been known, that patronage and power in a president, to a certain extent, would destroy division and responsibility; but the extent to which it could be carried under the constitution, might not have been foreseen. It might have been known, that an accumulation of vast wealth in few hands, by any means whatever, would create a faction or aristocracy, which would absorb power correspondent to that wealth, and gradually exchange the principles of our government for force and fraud; but such an accumulation might not have been intended.
That part of our policy called ‘the constitution of the United States,’ was suggested by the considerations of union and peace, of uniformity in commercial regulations, and of a revenue for general purposes. To alter or destroy our political morality or self government, and to substitute for it the principle of force or fraud, was not a motive for creating the constitution of the United States, expressed by any state convention, avowed by any individual, or conceived by the people.
On the contrary, apprehensions, lest some parts of the general constitution might on trial be found to incline from our good political elements towards those of force and fraud, were assuaged by special amendments to prevent it; and by a multitude of arguments to prove, that as titled orders were forbidden, legislative appropriations of money required, armies subjected to a duennial provision, and religion and the liberty of the press secured, self government and these elements were placed upon impregnable ground.
If, on trial, it is discovered, that the slightest inclination does exist, in any of its parts, towards the elements of force or fraud, these parts violate the national intention, and ought to be revised; because a tendency towards a political point, if unobstructed, will arrive at that point. Accumulation and permanence of power or wealth, arouse and excite certain evil moral qualities, which perpetually strive to govern by the principles of force and fraud; and so far from being instruments calculated to maintain governments founded in good moral principles and self government, they are instruments calculated for their destruction.
The executive power of the United States is infected, as we shall endeavour to shew, with a degree of accumulation and permanence of power, sufficient to excite evil moral qualities. The form of an executive power constituted no motive for the general government, nor will an alteration in that form, defeat or counteract the ends intended to be obtained. Amendments, which will secure the fundamental principles of our policy, and the essential objects of the general constitution itself, may be resorted to with safety, and are the best resources against their loss.
To prove that the form of executive power was not a recommendation of the general constitution, it need only be observed, that it is not copied by a single state. The governours of nine states, comprising a majority of the people, are annually chosen, and are ineligible after certain terms; those of the other states are chosen for two and three years, one excepted; and a multitude of other important differences exist, between the modification of executive power, under the general and the state constitutions.
The continuance of these differences, proves, that the form of executive power under the general constitution, was suffered for the sake of acquiring those of its objects, which the nation had in view; and that this form, had it been proposed alone and unconnected with other principles, would have been rejected by every state in the union.
It is therefore proper to consider, whether the executive power of the United States is so moulded, as to be calculated for awakening man’s evil moral qualities, and for propelling us towards the political elements of force and fraud; because the principles of our policy ought not to be contaminated and destroyed by its details.
Experience having ascertained, that executive power in most state forms, does not awaken individual ambition and avarice for the annoyance of society; and executive power in the general form, having been created by the merit of other articles of the general constitution, it is time to consider, whether we shall persevere in applying the principles of division, responsibility and rotation, to state executives, commanding little patronage, little military power, and little territory, and continue to relax from them in the case of the general executive, guiding a patronage, a military force and a territory of great extent. Whether we shall adhere to the inconsistency of sustaining innumerable fortresses to defend our liberty in a quarter where it cannot be assaulted; and of levelling most of them with the ground, in that, whence danger is imminent.
Election is almost the only barrier opposed to executive ambition in the United States. Alone, it has universally been insufficient. Marius, Sylla, Pompey, Cæsar, Cromwell and Bonaparte were elected. The English House of Commons, and the French legislatures under several forms, were elected. Election furnished in all these cases, the means for introducing or exercising tyranny. By conveying too much power, or consolidating within a narrow compass, the power it did convey, it awakened or excited ambition and avarice. The terrors of impeachment, attainder, banishment or death, were added to election in these instances; and these threats only accelerated the transition from patriotism to power, as the fortress for guilt. Monarchs elect their civil and military officers, but seldom trust to their power of election, though strengthened by a perpetual power of removal, for safety. They are cautious not to accumulate power, or to continue great power for a long time in the same hands. They divide it. They discontinue and exchange the most dangerous officers. If they neglect these precautions, they are dethroned. The people have fewer means of detecting ambitious designs than monarchs; national sovereignty must therefore be dethroned, if it relaxes from precautions, necessary to preserve the sovereignty of monarchs.
It is the insufficiency of election, exclusively, to secure political liberty, which has suggested to mankind a multitude of other expedients; and Mr. Adams, concurring with experience as to this insufficiency, proposes the theory of orders, and the practice of a division of power among these orders, as an additional security.
The necessity of applying the principle of division to power, to keep it responsible, is thus acknowledged; and the mode of this application only remains to be considered. This ought to be accommodated to the policy of the country. It is the policy of England to consider the government as invested with all political power; hence the principle of division could reach no farther, than a distribution of power among the departments of government. It is our policy to consider the people as retaining a vast share of political power, and as only investing their government with so much as they deem necessary for their own benefit. Admitting, therefore, that it may be consistent with the English policy to mould executive power, by a computation of the portion of power possessed by the Lords and Commons; it would be inconsistent with our policy to mould it by any similar computation. We do not balance power against power. It is our policy to reduce it by division, in order to preserve the political power of the people, by forbearing to excite the ambition and avarice of individuals.
This new application of division, to an allotment of political power between a nation and its government, was suggested to us, by its inefficacy if confined to an allotment among departments of government; it was seen, that omnipotent political power in a government, however theoretically divided, would become practically consolidated. The people, after this species of division of power, retain the importance and sovereignty of Lear, after he had divided his kingdom among his three daughters.
To preserve our unexampled division of power between the nation and the government, a multitude of other divisions became necessary, and these were intended to be made, not for the purpose of a balance of power between departments, but by preventing such an accumulation as to awaken ambition, to defend the sovereignty of the people against all.
The insufficiency of election to prevent great power from awakening evil qualities, has induced the people in their state governments to superadd many auxiliaries drawn from the principle of division. Rotation, plural executives, frequency of election, and a limited patronage, are among them. The efficacy of these auxiliaries, having been evinced by more than thirteen states for thirty years, is equivalent to an experience of one nation for four hundred years. Before an experience of twelve years had passed over, in the case of the executive power of the union, under a relaxation of our principle of division, a majority of the United States have agreed in perceiving in it, an inclination towards principles inimical to our policy. It follows, that the state mode of forming an executive power, will uniformly bring into publick use man’s good moral qualities for at least four hundred years; and that the mode adopted by the general constitution, will awaken his evil, in twelve. Division of power, is the cause of one effect, and its accumulation of the other.
History or fact corroborates this estimate. Compare two hundred successive emperours or kings, with the two hundred state governours who have probably existed since the revolution. Fewer tyrants will be found among the governours, than patriots among the monarchs. If a solitary royal patriot should occur, not a single tyrannical governour exists to contrast him. The principle of a division of power has been applied to the governours, and neglected in the case of the kings. Do these facts prove the wisdom of deviating from the precedent of American governours, and inclining towards that of English kings, in moulding executive power, or demonstrate its consequences?
The extent of this inclination in the executive power of the United States, will result from a comparison between a king of England and a president. This king cannot create offices, inflict taxes, pass laws, or raise armies; neither can the president. This king can appoint officers, disburse taxes, recommend laws, and command armies; so can the president. This king can make treaties under the check of two legislative branches; the president can make treaties under the check of one. This king can appoint the members of the legislature to lucrative offices; so can the president: and in both cases an appointment vacates the seat. This king appoints the judges, and the officers who appoint the juries; so does the president. Executive power in the English form, has sufficed to introduce and establish the political elements of fraud and force. But the king of England is not elective. The inefficacy of election, to prevent the abuse of accumulated power, has been shewn; we see its inefficacy in the House of Commons, to shield the people against the oppressions of the English executive power. But the king of England, in the exercise of his patronage, is not checked by a senate. The corruption of two wealthy and numerous legislative bodies in England, is no proof, that a small and poor one in America can repel the addresses of an executive, glittering with prerogatives similar to those which have dazzled all the English patriots for a century past.
Both the English king and our president are the exclusive managers of negociation; and secrecy is their common maxim. By negociation, foreign governments may be provoked; by secrecy, a government may delude and knead a people into a rage for war; and war is a powerful instrument for expelling the element of self government, and introducing that of force. This has been recently demonstrated in France. By negociation, secrecy and war, traitors convert a national detestation of tyranny into a tool for making tyrants.
The assembly of Virginia, in their resolutions of December 1798, after stating ‘that a spirit has in sundry instances been manifested by the federal government, to enlarge its powers,’ concludes ’so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.’ The resolutions of the Kentucky legislature of November 1798, after stating a similar spirit in the federal government, observe ‘that these, and successive acts of the same character, unless arrested at the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron.’∗
The spirit which produced these tendencies towards monarchy, revolution, and an iron government, could only have been infused into the federal government by some principle of the general constitution. It was an evil moral spirit, and must therefore have proceeded from an evil moral cause. The concurrence of Congress in the measures charged with this spirit, is a proof of the great advances already made by executive influence, and the confidence of monarchists in executive power. And as a spirit propelling us towards monarchy, revolution and an iron government, appeared only after the great accumulation of executive power by the general constitution, the magician who raised it cannot be mistaken.
We have endeavoured to prove, that the elements of every government consisted of good or evil moral principles; and that the shock received by superstition from knowledge, and by feudality from alienation, has reduced the political competitors for human preference to the system of division and responsibility, or to that of paper and patronage; the first suggested by self government, the second by the elements of fraud and force.
The measures arising from the spirit early infused into executive power by its American form, were, armies, war, penal laws, and an increase of executive power by law, loans, banks, patronage and profusion. These are English effects, and evil effects. Do they proceed from no moral cause, or is that cause unlike the cause of the same English effects? or, is it good, though its effects are evil?
They are the genuine issue of the elements of force and fraud, but infinitely exceeding in malignity the ancient effects of these elements; because the modern struggles of reason and self government compels tyranny to drive her screws deeper into the bowels of society, for the purpose of retaining it in bondage. If knowledge has taught tyranny new devices, without suggesting to liberty new defences, mankind will have to regret the loss of an ignorance, which cheapened the price and diminished the weight of their chains. It is infinitely less excruciating to be governed by imposture, than by armies, taxes, patronage and paper.
The new defences, suggested by knowledge, against these modern devices of tyranny, were zealously enforced by the United States in their separate governments, and in their first general government. The old Congress held the executive power of the Union. It was a plural executive, annually appointed, liable to recall, ineligible after three years, incapable of holding any other office, of little civil patronage, and extremely limited in military patronage; the states being invested with the appointment of all the officers of an army, except generals; and it successfully surmounted a period of war, longer, and attended with more difficulties, than is recollected to have occurred to any monarchical executive. All these defences, suggested by division and responsibility, were surrendered in the formation of the new executive, and many new powers were conferred upon that branch of government. They were overlooked, because we were dazzled by the prospect of permanent union. The sponsors for liberty, were forgotten in the general joy; and a president of the United States was invested with far greater powers than sufficed to Cæsar for enslaving his country. Patronage, negociation, a negative upon laws, and a paper system, render some of those talents which Cæsar possessed, unnecessary to enable a president to perform what Cæsar effected.
The sufficiency of the means, at the disposal of executive power, to produce a revolution, will induce people to look out sharply for the event; many will hasten to abandon old principles, and court the favour of new; and a monarchy may suddenly start into existence, even by the acclamation of a multitude, who will sacrifice their principles to their hopes or their fears. By weakening these means, republicanism and loyalty to our political principles will be invigorated.
Election, instead of being any security against accumulated power, derives its efficacy from an union with division of power. Certain metals, compounded in due proportions, produce by fusion a more impenetrable mass, than either separately; so election and division of power, politically mingled, are mutually rendered more effectual. An accumulation of executive power is precisely the contrary principle to that, which alone bestows efficacy upon election. The influence of this accumulation is already so visible, that candidates canvass, not upon the ground of knowledge, virtue and independence, but of devotedness to a president.
Election and constitutional precept, are both a species of didactick sanction, only to be enforced by a division of power; not by its division or balance among orders, but by preventing such an accumulation in the hands of an individual, an order, or a department, as will awaken man’s vicious qualities, and through them cause election to be converted into an instrument of fraud and oppression. The division of power among three orders, has failed in every instance to bestow efficacy upon election; first, because, by that system, a government is invested with every conceivable political power; and secondly, because in a division of this endless and enormous mass into three parts, the portion assigned to each order, must unavoidably suffice to awaken ambition and avarice both in the order itself, and in those who seek its favours. If, therefore, in assigning power to the president, the general constitution has deviated in any degree from the idea of dividing power, for the purposes of keeping it manageable by the publick will, and of preventing an accumulation, sufficient to excite man’s evil qualities; or if it has inclined in any degree towards the idea of dividing it by the scheme of a balance among orders of men, or orders of power; experience proves that the efficacy of election will be correspondently weakened. The English example proves, that election, united with a division of power, according to the balancing scheme, is even capable of being converted into the most powerful instrument for tyranny. It is our policy so to divide power, as to place every publick officer, isolated in the midst of the publick will; and not to provide for him the support of corruption, of an order, or of a faction, to weaken the utility of election.
An army and patronage enables a president to provide a faction. An army is the strongest of all factions, and completely the instrument of a leader, skilful enough to enlist its sympathies, and inflame its passions. It is given to a president, and election is the only surety that he will not use it, as armies have ever been used. The precept, ‘that money should not be appropriated for the use of an army, for a longer term than two years,’ is like that which forbid Cæsar to open the treasury.
The other precept, ‘that the military shall be subject to the civil power,’ would have superseded the principle of division, if armies could have been controlled by precept, or if precept could have been enforced by election; and if precepts had sufficed to restrain an ability to violate them, it would have superseded a necessity for civil government. The army is the creature of law. So were the armies of Cæsar, Cromwell and Bonaparte; and so, at this moment, are the armies of all existing governments, of which force is an element. The banner of usurpation and tyranny is usually hoisted by a legal army; a legal army is the instrument for giving permanency to the evil political principles, fraud and force; and at no time, has a standing mercenary army been the steady auxiliary of national self government, or obedient to election. It obeys its leader.
An army constitutes a mass of power, which has frequently proved too hard for the whole residuary power of a government. Military power, is at least as able to enslave a nation as civil power. To civil power our policy has copiously applied the principle of division; to military, two precepts. Civil power is distributed into a multitude of hands; military is condensed and accumulated in one. The patronage of civil offices is divided among the people, the general and state governments, and many sections of these governments; the entire patronage of military offices is bestowed on the president. To civil power we have applied the principle of division, to military that of accumulation.
A distribution of military patronage, would be some impediment to executive usurpation; but the only effectual mode of rendering military power subordinate to national will, is precisely analogous to that used for rendering civil power subordinate to national will. The latter is effected by dividing political power between the nation and the government, so as to invest the nation with a portion sufficient to control the government; and the former can only be effected, by dividing military power, so as to invest the nation with a portion, completely adequate to the coercion of an army. A nation, unable to control either its government or its army, is not free, nor is self government the element of its policy.
Arms can only be controlled by arms. An armed nation only can keep up an army, and also maintain its liberty. The constitution of the United States, overlooking this undeniable truth, has placed both the raising an army, and the arming of the militia, among the potential attributes of the general government; whereas the first belonged to the principle of accumulation, and the latter to the principle of division. One, therefore, is a power, and the other a check upon that power. One is a foe, the other a friend to liberty. One strengthens the government, the other the nation. And a sound militia makes a government dependent on the nation; a bad one, a nation dependent on a government. An armed militia divides the power to raise mercenary armies; wherefore governments, which can raise armies, will seldom be inclined to arm the militia; and the general government has expended its praises on a militia, and the publick money on an army, to an amount, sufficient to create the strongest militia, and the weakest army in the world. What stronger proof can exist of an affection for power and a dislike to duty in human nature, than a preference of the weakest army to the strongest militia? The president is a secret negociator with foreign nations; his monopoly of military patronage, impels him towards war, because war extends his patronage, and patronage is power. A strong solicitation, addressed to the passions of avarice or ambition, is an evil principle. He who could gratify ambition, by involving a nation in war, may be confided in as a negociator, precisely in the same degree, as he who could gratify avarice by conveying taxes into his own pocket, may be confided in to impose them. By removing from the publick negociator, the excitement of military patronage towards war, integrity of negociation would be obtained, and fraudulent pretexts for war avoided.
The imbecility of the precautions against military power, is a chasm in our policy, which jeopardises every precaution we have invented to prevent usurpation and tyranny. Military power awakens and excites man’s evil qualities, more than any other species of power, because it is less resistible; hence its malignity to good moral principles and the element of self government.
The regulation of religion, and the establishment of nobility, are among the powers prohibited; the military power is not even divided, and is only subjected in a state of complete accumulation, to the suffrages of an unarmed people. Religion and nobility, as state engines, might have been more safely left to the restriction of election, than an army, because they are thoroughly at enmity with publick opinion, and unpossessed of physical force. By resting for security against military power, upon the naked force of election, all powers, (including the cases of religion and nobility) whether prohibited or limited, are in fact deposited under the same naked security. Military power being capable of destroying constitutional precepts, the security of all such precepts depends upon the precautions used to secure the responsibility of military power.
Had the constitution secured the responsibility of an army to the national will, by requiring the duty of arming the nation to be fulfilled, before the power of raising an army was exercised; the freedom of the press and of religion, would have been safer without a prohibitory clause, than with one, accompanied by an undivided military power. By rendering an army responsible, election is free; and whilst election is free, no security for religion and the press can be better than elections; but it is no security against the will of an army, fettered with precepts, and unfettered by arms. The constitution even neglects the least precaution, for preventing an army from being used against the government; a case entirely beyond the compass to which the most enthusiastick theory can extend the force of election.
An armed nation only can protect its government against an army. Unarmed, and without an army, a nation invites invasion. Unarmed, and with an army, it invites usurpation. All nations lose their liberties by invasion or usurpation. The elective franchise of an unarmed nation, lies between these alternatives. How mercenary armies protect liberty, has been recently demonstrated in France; and how they defend nations, all over Europe.
Division can only be brought to bear upon military power, by a compulsory constitutional mandate for arming the nation, and by scattering military patronage. For the latter, the former confederation affords one precedent, and another appears in the prudence even of the phlegmatick Dutch, who had foresight enough, in the early dawnings of civil liberty, to withhold from their stadtholder the appointment of generals.
The military power and patronage of the president, is formidable; united with his treaty power, it becomes more formidable; but to determine whether the principle of division or accumulation prevails in the structure of our general executive, it must also be recollected, that the president appoints judges, ambassadors, and a multitude of other civil officers, grants pardons, governs the treasury, convenes congress, recommends and negatives laws. Let it be also kept in mind, that a division of power chastens, and that its accumulation excites our evil moral qualities.
Having attempted to shew that this accumulation of executive power ought to be diminished, by a division of the military article, it will further be contended, that the publick good dispenses with the president’s judicial power.
It has been a favourite maxim with the Americans, that legislative, executive and judicial power should be lodged in separate hands. And though it must be confessed, that no very visible lines have been drawn between these powers, yet the maxim is evidence of national attachment to the principle of division.
This maxim is violated, under any construction, by bestowing on executive power the appointment of judicial power; precisely as it would have been, had judicial power appointed executive. Had judicial power appointed presidents for life, would the duration of the office, and its independence of the government and sovereignty, have secured executive integrity? Or would it have been secured by an additional power in the judiciary to bestow more lucrative offices dependent on its will, upon presidents? The executive power appoints judges, and by two precedents it is declared, that it may bestow other lucrative offices upon them. The subject is farther illustrated, by supposing executive power invested with a similar right of appointing legislative.
Many truths are interspersed among Mr. Adams’s remarks, from which we draw conclusions very different from his. For instance, he observes that ‘these principes may say, with as much arrogance and as much truth, as it was ever said by Charles or James, “as long as we have the power of making what judges and bishops we please, we are sure to have no law nor gospel but what shall please us.”’∗ Again, ‘our author forgets, that he who makes bishops and judges, may have what gospel and law he pleases; and he who makes admirals and generals, may command their fleets and armies.’†
The president makes judges and generals. This power awakened and put in motion the evil qualities of Charles and James; the effects of the cause in these cases, and indeed in a thousand others, prove that the cause will produce evil effects.
So certain and inevitable was this, that Mr. Adams states it as not requiring proof. He considers it as sufficient barely to bring to our recollection, that he who appoints judges, has what law he pleases; and that he who appoints commanders, determines the conduct of fleets and armies.
Is this compatible with our maxim in relation to legislative, executive and judicial power? is it compatible with the system of a division of power? in short, is it compatible with the principle of self government? Such an accumulation of power, is as strictly the attribute of monarchy, as it is obviously the bane of self government. Weak and vicious presidents will play the small arms of judicial and military power upon individuals and factions; but an enterprising and ambitious president, will play the artillery of both upon the nation.
‘He who appoints the judges may have what law he pleases.’ Wherefore then elect a legislature? The right of suffrage and the efficacy of election, are destroyed or hazarded by an executive power to make law through judges. Innumerable instances might be collected, to prove that judicial power is an instrument with which law can be made; in England, the judges made a law for docking estates tail, under the influence of the crown, in order to weaken the power of the very order, designed to balance the power of the crown; in America, it has been said that the judges have made a whole code of laws, by declaring the common law of England in force; and also constitution, by declaring the sedition law constitutional.
It is inconceivable, that an appointment of a legislature during good behaviour by executive power, will produce bad laws, and that such an appointment of a judiciary will produce good; that the same means will both purify and corrupt the same being. So flat a contradiction justly excites a suspicion, that its origin is to be formed in habit or errour, and not in principle or reason.
The influence of executive power over legislative, was considered as an evil, because it violated the English theory, and had excited the animadversions of many able writers; but the influence of executive over judicial power, was overlooked as an evil, because it was a principle of the English theory, and had failed to attract the animadversions of political writers, under its present form. Had the people elected the judiciary in England, and the crown appointed the legislature, we should have contended for the frequent election and responsibility of judicial, and the independence of legislative power. It would have been said, that the tenure of good behaviour was essentially necessary to produce pure laws; and that as the judicial power was to give what construction and effect to the laws and constitution it pleased, it was more necessary to make it elective and responsible than legislative power, which could neither construe nor enforce them.
The habit, opinion or prejudice, which obtained for executive power the patronage of judicial, in the constitution of the United States, appears however to have been rather forensick than national; and our executive seems to have been enriched with it, rather in consequence of the publick decision upon the constitution, in one mass, than from an approbation of this particular detail.
Nine states continue to appoint their judges by the legislature; the rest, New York excepted, remove them by the will of two thirds of the legislature; and New York appoints them by a council annually chosen by the legislature. Not a single state has copied the general constitution in moulding judicial power, and every state has laboured to place it beyond the influence of executive power.
In forming state constitutions, publick opinion decided upon each detail separately; in adopting the general constitution, it was compelled to decide upon a mass of various details. To this cause it is owing, that violations of several essential principles adhered to by all the state constitutions, have been suffered, rather than adopted in the federal constitution. Every such contrariety is an irrefragable argument to prove, that one end of the oppugnancy ought to be suppressed by a constitutional amendment.
A degree of military power is conferred upon a president, which, when augmented and ripened by pretext, conjuncture or audacity, has alone sufficed, in every instance, to destroy national self government. To this instrument of destruction is subjoined a mass of civil power. The last refuge of self government is the legislature; in the purity of which resides its solitary hope of existence.
The executive power possesses the prerogative of conferring lucrative offices upon members of congress; the senators not excepted, though relied on as a check upon executive power. In England, this prerogative has utterly disqualified the House of Commons, as the organ or guardian of the principle of self government, for the democratical order. It will operate in America as it has done in England. Is a legislature, courting the patronage of a man who commands an army, a pledge or residence for the principle of self government? Is this secured by enabling a man who commands an army, to corrupt the legislature by perpetual and brilliant hopes? Was Swift inspired in describing the difference between the corruption of hope and of prompt payment—
’sid’s rod was slender, white and tall,
Which oft he used to fish withal;
A Plaice was fastened to the hook,
And many score of Gudgeons took;
Yet still so happy was his fate,
He caught his fish and saved his bait.’
Is not a president, thus enabled to influence the legislature, exactly a Lord Bute hidden behind the throne?
Mr. Adams converts the American maxim, ‘that legislative, executive and judicial power should be seperate and distinct,’ into the idea ‘of independent orders of men and of powers.’ And his theory, though destructive of national self government, acknowledges the fatal consequences to be expected, if one order or one power, should become dependent on another. Will our policy admit of an influence, which will corrupt his?
His theory is contrived to preserve certain factitious rights of these orders; this is only to be effected by their independence of each other; because, if two should be influenced by the power or patronage of one, that one will invade, abolish or modify these factitious rights. Our policy is intended to preserve the natural right of national self government; for this purpose we create three chief organs of national will; now if we enable either of these, by force or fraud, by armies or patronage, to influence the others, the natural right of national self government is lost, with as much certainty, as the factitious rights of orders are, by one order thus influencing two others, or their representatives.
The effort of the general constitution, to say the least, is greater to secure the independence of executive, than of legislative or judicial power; neither of these can appoint a president or enrich him by office. Neither, nor both, can select a president of political opinions similar to their own, or mould his tenets by patronage into such conformity. Was it believed, that numerous bodies would be more likely to corrupt one man, than one man would be to corrupt numerous bodies? Or was it believed, that a single executive was a safer depositary of self government, than a legislative assembly? That he should be enabled to influence them, and that they should be cautiously prohibited from influencing him?
In that part of our policy called the state constitutions, principles, the reverse of these, prevail. Executive power is made dependent on legislative in some way, and vast care is taken to keep legislative and judicial power beyond the influence of executive. In fact, it was and still is the general opinion, that the independence of legislative and judicial power, of the influence of one man, constitutes an indispensable requisite for the preservation of national self government; and that an influence of one man over the legislature, constitutes a substantial monarchy, and is the harbinger of its form. If then executive influence over legislative and judicial power, is a monarchical principle, the president’s appointment of one, and his patronage over both, ought to be removed, or we violate the principles by the details of our constitution. It is a principle, that the legislature should utter the will of the nation; the detail, exposing it to executive influence, may cause it to utter the will of a president. The principle and the detail admit of no reconciliation, and therefore the only question is, which ought to be abolished, the influence of the people, or the influence of the president over the legislature?
The elective quality of the presidency, aggravates the errour. It procures a confidence which has no foundation, because election is no security against great power conferred by it on one man; and this confidence, by lulling publick suspicion, will mask the progress of executive influence. A suspicion, both of its progress and the cause of its progress, is suggested by the facts, that in those states where governours have no patronage, no state factions have appeared; and that upon the erection of a general executive, having a patronage previously unknown, national factions, previously unknown also, suddenly started up.
As civil and military patronage, the command of fleets and armies, the direction of a treasury, treaty-making, and a negative upon laws, condensed in one man, constitute a power evidently monarchical, it is important betimes to consider how the elective principle, and the monarchical power are like to work upon the same person; the nature of one, being to draw him within the pale of responsibility, and of the other, to excite him to overleap it.
We ought not to shut our eyes upon the history of elective monarchy, but to discern and avoid the cause of its invariable catastrophe. Orders have never been able to work well with election, nor election with them. If a good government cannot be made of orders, by the help of election, still more discouraging is the experiment of making a good government of monarchy, one order only, by its help. This project requires one man to constitute or represent two orders. He must be a monarch in power, but a plebeian in temper. No instance occurs in which monarchical power, responsible and periodical, has not struggled for insubordination and permanence; and no remedy for this evil has ever appeared; but the experiment in the case of state governours proves, that the evil may be avoided, by bestowing and dividing executive power so judiciously, as that projects to acquire independent and permanent power, may be made inconsistent with common sense. Power in certain masses, is a moral cause which naturally produces certain effects. Kingly power, though conferred by election, constitutes the cause, and consequently produces the effects: even excessively aggravated by the natural indisposition to part with it.
If it is true that aristocratical power, hereditary or not, will suffice to destroy election, responsibility and self government, can it be false, that monarchical power, hereditary or not, will suffice for the same end? No instance occurs in which either aristocratical or monarchical powers have been peaceably and regularly managed by election or national will, or in which they have not destroyed the principle of self government. Names constitute nothing. Monarchical powers constitute monarchy, and though monarchy is elective, it is still monarchy. If monarchy and aristocracy are moral principles productive of evil effects, election cannot change their nature, and force them to produce good effects. As we have a multitude of elective publick officers, without aristocratical powers, we may also have an elective chief officer, without monarchical powers. But if by law, avarice and guile, the aristocracy of paper and patronage is created; and if the mass of monarchical powers, held by the president, remains undivided; this real aristocracy will have a real monarch at their head, who upon the first conjuncture, which enables him to raise an army, will step upon a throne. A system of paper and patronage, and our executive powers, bear an astonishing resemblance to sundry principles of the operating English policy. The detachments of barbarians voluntarily introduced into the Roman empire, was the cause of its destruction.
Mr. Adams abounds in citations to prove, that election is not a sufficient security against great power. We accord with him, and deduce from this acknowledged fact the foregoing observations. His remedy is to make monarchical and aristocratical powers hereditary; ours, to divide them, until they are brought within the coercion of the elective principle fairly exercised, which is the exact test, of their ceasing to be monarchical or aristocratical. He deduces his remedy from the experience of dark ages, in which he says it was never tried; we deduce ours from the experience of the present enlightened age, in which it is tried before our eyes. Governours are completely manageable by the elective system, because they do not possess monarchical powers. From the same cause, state legislatures elect them without disorder or difficulty. At some future day, on an election of a president, it will be found that the hopes and fears inspired by monarchical powers, will light up the brand of civil discord, and visit us with an experimental knowledge of the effects of these powers, first as elective, and then as hereditary.
The question is, whether the experience of all ages, that great power cannot be controlled by election, shall induce the Americans to accumulate power; or whether our own existing experience, that divided power may be controlled by election, shall induce us to divide the mass collected in the national executive.
The evidence on both sides yields exactly the same conclusion. All ancient experiments, to control undivided or great masses of power by national will, failed; our modern experiments, to control power in a state of considerable division, have succeeded; the first demonstrated the evil, the second demonstrates the remedy.
This conclusion cannot be weakened by urging the efficacy of the elective system hitherto, to manage the executive power of the United States, if its early inclination towards monarchy existed. The nation testified to the fact. Will they not believe themselves until it is too late? A blow cannot be avoided, which is not foreseen. On the very first presidential election, which crossed the progress and projects of monarchy, patronage and paper, a disloyalty to election or national will, was distinctly seen. A disloyalty, disclosed by a power in its infancy, will be carried into effect, when that power is matured by war, fleets, armies, stock and patronage. Perhaps the corruption of another individual at the juncture alluded to, would have demonstrated the argument.
Abbreviation of the time of service, and rotation in office, are auxiliaries in unmonarchising executive power, called forth by the state constitutions, and abandoned or relaxed by the general constitution. Our policy will not be made to flourish by inconsistent principles. Its two parts can only act with effect by acting in concert. The temptation to form factions and perpetrate usurpation, is graduated by the chance of reaping the contemplated fruit. A long time of service, connected with rotation, is an inducement to obtain influence by corruption, in order to destroy rotation; and a short time without rotation, is an inducement to use the same means to secure a re-election. Rotation, and the annual power of the Roman consuls, united, prevented consular usurpation for centuries; annual appointment of proconsuls, without a strict rotation, produced proconsular usurpation in a few years.
All mankind do in fact believe, that a short duration of delegated power, is the best security for its continuing a delegation. In every delegation made by an individual for himself, he adheres closely to this opinion. And though universal experience concurs with universal opinion, both are violated by nations. It is because governments are always formed by those who expect delegations.
Not so will one of these politicians act, should the lot of empire fall on himself. He would frequently change his generals and governours. The more powerful the office, and the more meritorious the officer, the more uniformly would the security of a short term and rotation be resorted to. What nation is enslaved by a fool? Oh people! do not be deluded to pay away your liberty for talents and merit. By rewarding them with great power, or great wealth, or long duration in office, you will lose the power of rewarding them at all; and these rewards, by destroying your liberty, will destroy publick merit and talents, and put an end to the objects of your bounty. It is only by withholding rewards, destructive both of the power and the objects of reward, that nations will be able to evince their gratitude to benefactors. A tyrant would only have kept Cæsar proconsul in Gaul for one year, and would have thus secured his tyranny; the people continued him for seven, and by that means lost their liberty. Their bounty to one man, closed its stream for ever, and annihilated the race of heroes.
Equally unanimous are men of all principles, whenever the delegation relates to their own exclusive interest, that it is dangerous to delegate so much power, as to place them at the mercy of the delegate. Here too every depot discloses his subtlety, and his conviction of the necessity of division to defend his despotism. He carefully divides his provinces, his armies, and his powers, so that no one divided should be strong enough to dethrone him. If he is so imprudent as to place his army and his treasury under one man; and irrevocably to invest him with the command of them for four years, with a power of appointing and removing all officers civil and military, he is dethroned by his first able, artful and ambitious general. He places his sovereignty in the situation of an unarmed sovereignty of the people, and his general in that of the president.
All despots, monarchical and aristocratical, uniformly and strictly practice the principles of division and rotation, as the best means to defend their monarchy and aristocracy; and as uniformly assure the people, that these same principles are the worst means to secure liberty or self government. It is simply because they are friends to their own sovereignty, and enemies to the sovereignty of the people. As countries are divided into provinces to secure kings, power ought to be divided into provinces to secure nations; and as each geographical division is subject to the monarch, each potential division should be subject to the people; great provinces in both cases produce the same consequence. Even rival orders never fail to use innumerable arts to divide each other’s power. At one period in England, the other two orders united to weaken the aristocracy, by enabling it to break entails; at another the nobility and commons united to weaken the power of the crown, by depriving it of the prerogative of removing judges at will, and fixing that right in all three; at a third, the crown and nobility contrived to weaken the power of the people, by joining with the commons to extend their time of service.
Power changes moral character, and private life regenerates it. The children of hereditary power are not tyrants from a procreative cause. They are made such by the contemplation of the power to which they are destined.
If the prospect corrupts, will the possession cleanse? It is not in a natural, but a moral birth, that the defect of the hereditary principle lies. Great power, or a long possession of power, changes a man’s moral nature, whether it is derived from inheritance or election. Patriots, as well as princes, become tyrants from being steeped in the same menstruum, and yet nations are still to learn, that its intoxicating qualities are the same upon both. They consider its effect as natural in one case, and monstrous in the other; as if both princes and patriots were not men. Revolution fails, because its usual remedy is only to draw the menstruum from election instead of inheritance, into which to plunge the moral qualities of human nature. Even a hope of office corrupts eloquence. It ceases to be the animated auxiliary of truth, and becomes the mercenary ally of interest. Honesty is exchanged for art. An artificial character is formed by a possibility of continuing considerable power. It assumes different principles with different persons. It gilds its baits with patronage, contract and charter, at the publick expense. And the varnish it assumes is to conceal the foulness of the stuff it hides. Whereas a portion of power, insufficient to arm treachery, and limited to an unalterable period, being chastened of the excitements to fraud and force, leaves the mind open to virtue, and the certainty of returning to a private station, settles its bias.
From the foundation of Rome to the accession of Augustus, was above seven centuries; and from thence to the termination of its empire, less than five. The first was a term of growth, the second of decline. The first of progressive prosperity; the second of oscillations depending upon the change of character. The first was a term of rotation, the second of permanent or hereditary power. The corruption or errour of electing the same man a second time to the consular office, was a symptom and became an instrument of the destruction of the republick, except for which, we can only compute the probability of its duration, by an inference from the long term of its existence under the auspices of the annual rotation of executive magistrates, and a division of power.
The same period demonstrates the errour of the objection, that rotation causes a loss of talents to the publick. It would have been most likely to produce this loss in military affairs. For seven centuries Rome applied the principle of rotation to her generals, and conquered; for five, she trusted to experience, and was subdued. The rotary generals and statesmen of the little Athenian republick, destined it to live for ever in the annals of fame, and most of its contemporary governments are for ever dead. As to civil affairs, the claim of experience would probably be answered by the old adage, but the burst of talents in both cases which blazes forth whenever the monopoly of experience is destroyed by rotation, is accounted for by the fall of the monopoly. The trade being laid open, the wares increase, and are made better by competition. Talents, civil and military, are created by the prospect of employment, and smothered by the monopoly of experience.
A strong and independent executive power, has only been contended for by Mr. Adams and political writers, as a counterpoising weight in the system of balancing orders. There being no orders in the system of the United States, the only reason for a strong executive, does not exist; and a conformity in that department to the theory of a sovereignty of orders, unquestionably proved by Mr. Adams, unquestionably also discloses its nonconformity, to the theory of a sovereignty of the people. A strong executive is the more dangerous, where there is no political order to balance it. By creating an executive with monarchical powers, without the check of an aristocratical order, this monarchical order, is either enabled to assail the liberties of the nation, or the nation are driven to erect an aristocractical order to balance it. The proof of this remark exists, in the ease with which an elective executive in France, with monarchical powers, unchecked by an aristocratical order, has made itself despotick. And Mr. Adams both strenuously urges the necessity of an aristocratical order to balance monarchical powers, and plainly intimates that we shall be speedily compelled, first to extend the term of delegation, and then to adopt the hereditary principle. It is admitted, that the existence of one order, furnishes a reason for another. Monarchical powers can only be assuaged by an aristocratical order. Were the former given to the president, to create a cause for the latter? The alternative for the United States is obvious; it is, either to pare away executive power, below monarchy, to a standard not requiring an aristocratical order to check it, or to adopt Mr. Adams’s system of orders. Monarchical executive powers being monarchy in substance, will beget aristocracy, just as a system of paper and patronage, being aristocracy in substance, will beget monarchy. According to Mr. Adams’s system, monarchy ought to produce aristocracy, and aristocracy monarchy. The presidency, gilded with kingly powers, has been tossed into the constitution, against the publick sentiment, and gravely bound in didactick fetters, like those which in England and France have become political old junk. Between these, and our principle of self government, there can neither be friendship nor compromise. Either our kingly powers, or the sovereignty of the people, are by the laws of nature destined to perish in their warfare. The first will be suppressed by amendments to the constitution, or the last, lulled by the narcotick, corruption, will be murdered in its sleep.
The people and the legislative bodies of the United States shrink from this honest confession, whilst they are making it in their actions. They will not see the monarchy they court, and expect safety whilst feeding an enemy, from denying his existence; whilst even the European habit, of referring every thing to executive power, prevails. Epochs and measures are ascribed to presidents. Legislative power solicits a state of degradation, by descending to the indignity of pleading a subserviency to them, as a passport to popular favour, and condescending to become the satellite of one man. State legislatures, parties and individuals, enlist under candidates for the presidency, as they do in England under candidates for the ministry; and the nation itself, forgetting their representatives, contemplates the dazzling executive power of their own creation. The phenomena attending it are the same here as in England, and this coincidence demonstrates an identity in the causes; but we fall into the errour, of contemplating the same thing as a mighty substance and an empty shadow, without reflecting that the danger lies, not in the feeble body of an ignorant man, but in an accumulation and concentration of active powers. For a century past, executive power in England, has had the address to change its ministers as they became odious, and to replace them by popular adversaries; retaining the encroachments upon the rights and purses of the people, which produced the odium, and using the popularity of its new ministers, to make new encroachments: who, having lost it in performing this work, make room for others. Thus executive power, working with popular agents, and armed with gold and iron, has long gained ground with undeviating regularity in England. It pursues the same system here. Our presidents are its ministers, suffered only to remain in office whilst popular; encroaching in favour of executive power whilst this popularity lasts; bearing the odium of mischiefs which ought to light upon our accumulation and concentration of powers; leaving encroachments behind them for the benefit of executive power, to be extended by popular successors; and organizing a body of outs and ins, alternately demagogues and tools. These outs and ins are equally proper to delude a nation, and to exalt executive power, which sits in proud superiority, looking down upon the fraud and oppressions caused by itself; whilst the people dare not look up to it as their cause, but will be taught the forlorn hope of redress from a change of ministry, as in England. Hence, both in England and America, executive power obscures legislative to such a degree, that even popular favour is only obtained by an avowal of subserviency or hostility to its prime minister; and we compel our popular representatives gratuitously to become the tools of the same principle, to which the members of the British House of Commons sell their services.
A nation which requires its representatives to become the avowed advocates or accusers of the prime minister of religious or civil power, whether he is called a pope or a president, has an equal prospect for civil and religious liberty. Civil and religious preachers and reformers, marshalled into opposite parties, in all times and countries, are the same sorts of patriots. Representation limited to the alternative of enlisting under one of these parties, ceases to be an instrument of national self government, and dwindles into an instrument of oppression for the prime minister or his antagonist. We see and despise the old whig and tory farce, or the new farce of ins and outs in England; we hold in detestation the corruption which enlists the representatives of a rich and wise nation under the minister of executive power, or his expected successor; we deplore the contempt for publick characters, the apathy towards publick interest, and the surrender of the mind to selfishness, which this foolish imposition generates; and yet we insist that our representatives shall sacrifice their honesty and independence at the same shrine, and make themselves knaves in order to make us dupes.
The struggle for our presidency, like the struggle for the English administration, is the concurrent verdict of the contending parties, that executive power has already obtained the ascendancy. When it depended on a Dionysius or a Timoleon, whether monarchy or republicanism should reign at Syracuse, monarchy was established. It is a government according to the will of one man, not the mode in which that will operates. If it operates by means of a patronage able to influence popular representatives, or by a national humour compelling its representatives to enlist themselves for or against one man’s will, it is as much monarchy as if it operated in a different mode. No writer describes a republick, guided by the will of one of its officers, and depending on the chance of that officer’s possessing republican or monarchical principles.
We see that an administration majority, will attend successive presidents, as it attends successive premiers in England. Whether it is called whig or tory, federal or republican, high church or low church, causes no difference in the operation of the fact. The discovery we are in pursuit of, is the cause of this fact. Wherefore is it, that in both countries, factions or parties are seen, having executive power for its object, and none paying court to or condescending to be the blind partisans either of legislative or judicial power? It is because one man in both represents the entire undivided mass of executive power, and many men represent legislative and judicial. The two latter powers, being considerably divided, cannot feed mercenary factions; and the former is able to feed them, out of the abundant granary of its monopoly. The same remedy which prevents legislative or judicial power from begetting factions able to make either despotick, will have the same effect on executive. The ability of state governours to create executive factions, is graduated in the United States, by the portions of power which they represent. If a single individual represented the entire mass either of legislative or judicial power in the United States, it would become a power capable of creating factions and undermining the rights of the people. Suppose that one man possessed the legislative power, and that what we call executive power was divided by representation, equally with legislative at present; would not usurpation invariably proceed from legislative, as it now does from executive power? If a division of legislative power, prevents it from becoming an usurper and a tyrant, will not division have the same effect on executive? Republicanism, like a mercantile company, perishes, whenever one man by any means whatever has obtained the direction of the common interest. It is not her motto that ’safety lies in the counsel of one man.’
The people of the United States and of Great Britain, have been frequently censured for a corrupt or absurd exercise of the right of suffrage; and their want of virtue or understanding in the discharge of this function, has been forcibly urged against the right itself. An accumulation of power in the hands of one man, bears a strong similitude to its accumulation in a single chamber. The latter, says Mr. Adams, will diffuse vice and folly throughout a nation, and corrupt election. Will the same cause purify it? It is true that the ruin of election proceeds from this cause, and not from an innate disposition in the people to do themselves an injury. An accumulation of power and patronage in the hands of one man, causes candidates for popular favour to corrupt the people, in order to bring themselves within the notice of this dispenser of wealth; and candidates for executive favour to infuse into them the fatal idea, that they ought to demand of their representatives an accordance with executive will. If such effects do flow from this cause, the people are unjustly accused of a deficiency either in virtue or understanding; and the just conclusion only is, that they are not able to control the moral law of nature, which has irrevocably pronounced, that evil moral effects will flow from evil moral causes. Had we emigrated from Turkey, we might have been wedded to the opinions, that legislative power could be safely represented by one man, because it possessed but few of the means of usurpation; but that executive power ought to be very much divided, because it possessed many of those means. And if ambition is more likely to be excited by a considerable than by a slender capacity to gratify itself, the idea, though brought from Turkey, would not have been so unfavourable to civil liberty, as its converse, which has constituted executive power, the general or universal usurper of the rights of mankind.∗
Lord Bolingbroke observes, in his Patriot King, that the management of parliament by undertakers, was one of the most pernicious violations of the whig portion of the English form of government. It converts representation into vassalage to the leaders of parties, disciplined, not by the comparatively honourable infliction of the lash, but by the base and wicked sophism, that it is honourable to stick to a party, and treacherous to adhere to conscience. The disciples of this infamous doctrine are forged into tools for ambition and tyranny by praises and rewards, whilst honesty is discouraged by base epithets, as a foil to the varnish with which the decoys are painted, designed to deceive and enslave the multitude.
The pendulum of power long vacillated in England between whig and tory undertakers, and a gallant nation is the victim of an evil principle. Walpole, a whig undertaker, erected the tory stock system, and wafted power on the pinions of law, from fruitful land to the voracious paper kite. And to this hideous principle of gaining honour and profit by slavery to leaders or undertakers in parliament, it is owing, that the fluctuations of parties have produced more harm than good to the English nation.
The principle is derived from executive power, which infuses and rewards the base subserviency, founded in nourishing hopes capable of being gratified, either by the possessor of that power, or by some leader of an opposition, when he shall attain it. And the rewards are paid at the publick expense for betraying the publick good.
A reformation of the executive power of the general government, sufficient to prevent the custom of managing congress by undertakers from creeping into our policy, would probably contribute more to the safety, prosperity and happiness of the United States, than any other amendment of the constitution, a reformation excepted, capable of producing a real militia. Only two modes of effecting it suggest themselves; one to reduce the patronage of a president beneath a capacity for creating these undertakers; the other, to shorten the time of his service, and make him for ever ineligible to the same office, to diminish his motives for doing it. This latter mode would rapidly provide an excellent fund for members of congress in a body of ex-presidents, under no temptation to become undertakers themselves, able from their experience to detect other undertakers, and shedding upon congress the knowledge, integrity and independence, derived from its consular members by the Roman Senate, which, whilst the rotation of the consular office lasted, was able to render even an aristocracy illustrious.
Executive secrecy is one of the monarchical customs, plausibly defended, and certainly fatal to republican government, either in an aristocratical or democratical form. Had the senate of Rome suffered their consuls to hide the foreign negociations under secrecy, or legislated upon the credit of their recommendation, without thorough information, even aristocratical wisdom would sooner have fallen under executive prowess. The essential principle of our policy being the division of power, whatever shall convert one primary division of power into an instrument of another, unites and consolidates the means of usurpation in exact violation of it, and substitutes the evil moral principle of an accumulation of power, for its division. The president, who shall be able to bring congress into the practice of legislating upon a confidence in his recommendations, without a thorough knowledge of the subject, will extend the custom of managing congress by undertakers, exercise by their aid the legislative power, and gradually provide the most ample funds for rewarding their services; a British end, to which executive secrecy inevitably leads. How can national self government exist without a knowledge of national affairs? or how can legislatures be wise or independent, who legislate in the dark upon the recommendation of one man?
Executive secrecy furnishes double means for corrupting, nor are the offerings to vanity less greedily accepted, than those to avarice. Intoxicated by the incense of the one, men are prepared for the seduction of the other; nor will they hesitate to extend executive patronage at the national expense, when they consider the wisdom and discrimination in the disposition of secrets, as a pledge for the same degree of wisdom in the disposition of money.
It is in vain to expect civil liberty from the principle which has universally destroyed religious. Benefices are the cause of political as well as of religious factions and parties, and if one man distributes them, he becomes a pope or a monarch. These plunge hereticks into flames, and patriots into prisons; these beget the persecutions of sectarism and the intolerance of faction; and both the holders and seekers of these universally resort to reason or sophistry, to truth or falsehood, not to advance the publick good, but for selfish ends and private emolument. If a handful of guineas thrown among a mob, or a mountain of dollars exposed to be scrambled for by a nation, would produce good order and secure a respect for the rights of others, then happiness and liberty may be reasonably expected from a mountain of executive patronage. Divide this mountain, and it becomes a wholesome circulating medium, doing good like a divided priesthood; undivided, like an accumulation of the whole national coin by one man, it falls upon and crushes popular rights.
I have not entered into a discrimination between executive and legislative powers, because I know of none such, nor any reason why war, peace, appointments to office, or the dispensation of publick money, should have been counted in the catalogue of the former, except the efficacy of these powers in one man, for begetting tyranny; or except an imitation of the English government derived from former habitual opinions. In Europe we find executive power, at all places and periods, legislating by proclamations; in the government of the United States the European allotment is frequently departed from, and in many of the states entirely disregarded. The remark is made merely to suggest to the reader, that it is not an element like water, naturally returning by fluidity or evaporation to a homogeneous mass, but capable of being divided and assigned in such manageable allotments, as society may determine to be best for its liberty and happiness. Filmer’s divine origin of kings, Mr. Adams’s natural origin of noble orders, and the doctrine of judicial independency (on God and conscience excepted) are equally pious, equally wise, equally in concord with the qualities of human nature, and equally calculated to secure human liberty. Each goes as far as possible towards making Gods of men.
A period existed in the progress of the English government, during which an effort was made to diminish the power of the king. Judicial power was in the list of feudal usurpations. The king, having the right of judging, exercised it by a deputy, dependent on his will. But the other orders stript the king of this branch of feudal power, and succeeded in transferring the dependence of the judges from one order to three.
The term ‘independence,’ as applied to judges in England, cannot refer to the sovereign power, because they are dependent on the will of the parliament. The doctrine it inculcates, therefore, does not extend beyond the idea of their independence of any power inferior to the sovereignty. The sovereignty in the scheme of balanced orders, as in England, does not rest in one order, but in three; the judges were considered as dependent, whilst they were exclusively subjected to the will of one order, the king; and as independent, when subjected to the will of the parliament, the sovereignty itself; because an exclusive subjection to the will of the sovereign, is the highest state of independence, of which a subject or agent is capable. In an equivalent sense the term is used by our policy. The legislature and executive shall be independent, not of the sovereignty, but of any other agent of the sovereign’s.
To effect the English judicial independence, the judges, though named by the king, are removable at the pleasure of the parliament; and our imitation of this policy, destroys the subordination of judicial power to the sovereignty, and bestows a considerable influence over it on an agent or subject of the sovereignty. The president creates judges, and may corrupt them by additional offices; and the sovereignty cannot displace them.
Several political caricatures arise out of these facts. Responsibility is an essential principle of representative government; the English monarchy enforces it on judicial power, and the representative policy of the United States dispenses with it.
Division of power is a republican, and not a monarchical principle. The English policy divides and diminishes the power of the king to appoint judges, by investing the parliament with a right to remove them; our constitution magnifies the power of appointment, by withholding any correspondent mode of removal.
Self government, by responsible representation, is the essence of our policy; the sovereignty of orders in England, preserves its self government, by the responsibility of its judicial organ; our national sovereignty renounces self government by renouncing a similar responsibility. It renounces sovereignty itself, which cannot exist in association with a superior or an equal. Ancient hierarchy and aristocracy, never claimed the privilege of independence of the sovereignty, except under the sanction of a commerce with Heaven, and a descent from the Gods. Are the integrity and wisdom of judges also of divine right, and entitled to exaltation above nations? Or, are they subject to frailty, and liable to prejudice and errour? Political offences have, I believe, been generally decided conformably to the political complexion of the bench.
The people were supposed to be the only source for altering the constitution, according to our policy; but it is exposed to a power of construction, not responsible to the people.
Legislative, executive and judicial powers shall be separate and distinct; yet the judges can abolish or make law by precedent.
The president has a negative; it shall however be controlled by two thirds of congress; but the negative of the president may be revived by a control of the judges over the control of two thirds.
‘All legislative powers’ are given to certain functionaries; the extent of this power, has suggested the propriety of making them responsible; yet the judicial power, in its capacity to disallow or repeal the acts of the legislature, is made a greater legislative power: has the extent of this power also suggested the propriety of making judges irresponsible?
‘Congress may from time to time’ establish new courts: can the old supreme court abolish them, by declaring the law to be unconstitutional?
Enforcement of law is the judicial province; every new law is an accumulation of duty; refinements of the new invented idea of judicial independence, demand protection co-extensively against an accumulation of duty, as against a diminution of salary; it is a principle, therefore, capable of putting a sudden stop to legislation, unless new courts are regularly created, to encounter the burden of enforcing new laws.
But if judicial power may assail legislative, by disallowing laws; legislative power may revenge itself upon judicial, by impeachments and convictions; and the station of executive power between these combatants, contains an ability to keep up the war, until both are worried and discredited, so as to thrive upon their ruins.
Under the English monarchy, this species of responsibility, impeachment, also exists; but a joint parliamentary vote contains another species of responsibility, infinitely more valuable; yet both have been unable in England to shield judicial against the influence of executive power, arising from its patronage in appointing and promoting judges. Here, the same patronage is created, and the strongest of these securities against its effects, abolished.
Had the responsibility arising from impeachment been found sufficient in England, the tenure of royal pleasure would simply have been exchanged for that of good behaviour; but its insufficiency, suggested an exchange of a complete dependency upon the will of the king, for a complete dependency upon the will of the sovereignty.
The reason is obvious. The functionaries in every considerable branch of government, may innocently injure a nation. Erroneous opinion is not less injurious because it is honest. Impeachment is a remedy for crime; the will of the sovereignty, for errour. The English sovereignty has a resource both against crime and errour; the sovereignty of the United States is content with a bad remedy against crime, and no remedy against errour.
A defect of talents disclosed by trial; imbecility of mind or body produced by age or malady; a construction of the constitution favourable to a gradual revolution; might each produce great evils: but impeachment could not remove them. If an indefinite adoption of the common law of England should contain a magazine of tools, for working gradually towards the English policy, impeachment is insufficient to countermine the work. For although the judges should deem it criminal in private citizens, to express honest apprehensions of a tendency towards monarchy; yet the injustice and impolicy of considering honest judicial opinion as criminal, although infected by that tendency, might still be demonstrated.
Opinion, which makes, disallows or construes law, in pronouncing judgements, may be excessively injurious to nations and individuals, and perfectly innocent; or it may conceal criminal designs under an appearance of innocence, beyond the possibility of detection and punishment.
Is a national subjection to opinions, innocent but mischievous, or criminal but apparently honest, consistent with national sovereignty or self government? If so, self government must hereafter be defined ‘a submission to fraudulent or erroneous opinions.’ A subjection to one of these classes, is a subjection to both, because there is no test for separating them.
Legislative and executive opinions, neither claim or possess this pre-eminent state of insubordination. Though innocent and honest, though delivered on oath, they are controlled by national will. But the instant an individual is removed from the legislative or executive departments into the judicial, his nature is supposed to have been regenerated, his errours are sanctified, his intrigues are overlooked, and his responsibility commuted for the universal refuge of imposture, ‘God and his own conscience.’
And yet history abounds with the political intrigues and oppressions if judicial power, in favour of revolution, usurpation and tyranny. These display the insufficiency of impeachment for the correction of crimes, to be almost equivalent to its incompetency for the correction of errour. Judicial power is placed beyond the reach of prosecution from an individual. It can ally itself with a branch of government. And impeachment is in practice more frequently a weapon with which factions assail each other, than the avenger of crimes.
Law is nearer to the sovereign will, than the construction of law, and is therefore more likely to correspond with it; but admitting that a power of construing is nearly equivalent to a power of legislating; why should construction of law be quite independent of sovereign will, when law itself is made completely subservient to it? In England, if judicial power opposes the will of sovereign power, by its power of construing laws, the sovereign power can change its organs. In America, judicial power is increased, and its responsibility, compared with a monarchical standard, diminished. Our constitutions and sovereignty as well as laws, may be moulded or undermined by an immoveable power of construction. Here the power of construction is a supremacy over the legislature and the sovereign; in England, the power of removing judges by the parliament, is a supremacy of the sovereign and the legislature over the power of construction. A right to legislate, subject to an insubordinate right to construe and apply, inverts responsibility, by creating an allegiance of law to judgement, in place of an allegiance of judgement to law.
But judicial power, being in its nature didactick and imbecile, is incapable of constituting a sovereign; and is uniformly induced by a consciousness of this incapacity, to ally itself with some other power. The executive, which appoints, promotes, and patronises judicial power; which wields the sword, and keeps the key of the treasury, is unexceptionably that ally. The necessity for this alliance is demonstrated in the consideration, that legislative power must be in collision with judicial, because its territories only can be invaded by construction. An alliance is not formed with a natural enemy. In alliances, the weak party, submits to the strong one; whatever share of power an insubordinate judiciary may acquire, will therefore become subservient to executive designs.
Judicial power has universally been considered as belonging to municipal, and not to political law. Its functions relate to individuals, and not to nations. In the principles of governments, it is not assigned a place. Mr. Adams compounds his political system of the principles of monarchy, aristocracy and democracy; and perfects, as he imagines, his checks and balances, without making the least use of judicial power. And that this idea is correct, its subordination to law, and its being invariably the instrument of political power, held by a nation, a government, a faction, or an individual, are strong illustrations. In revolutions it follows, but never leads.
It is questionable, therefore, whether it was the intention of the general, or any state government, to erect judicial power into a political department, by inferences to be ingeniously drawn from the ideas of its independence, and the dependence of legislatures upon constitutions. The lines of a power to mould laws and constitutions without responsibility, into the endless forms within the reach of construction, would have been distinctly expressed, and not left to be traced from a single word of hieroglyphical obscurity.
But judicial power has seized upon a quality peculiar to the American policy, to transform itself into a political department, and to extend its claims far beyond precedent. All our governments are limited agencies; others are universally or generally unlimited sovereignties. Legislation, under our policy, is subject to constitutional restrictions; according to the policy of other nations, it is the expression of the sovereign’s will. In one case, legislation, which exceeds its agency or violates constitutional limits, is void; in the other, such an excess cannot happen. Being void, no publick functionary or private citizen ought to execute it; therefore judges, jurymen or officers of any other description, are bound to determine whether the instrument exhibited to them as law, be law.∗ But all these descriptions of persons are bound by the laws of sovereign governments, and have no power, direct or indirect, to determine upon the validity of a law. None of them, therefore, can become a political department. Whereas, if the judges of the United States can acquire the exclusive right of declaring a law void, without any responsibility or mode of defeating the declaration, they must become a political department of great importance. An intention of creating judicial power into a political department, as a barrier against legislative usurpation, is the inference drawn by itself, from its right to refuse to execute unconstitutional laws; but this right belongs to juries, to officers, and to every citizen. It flows from the limited nature of our governments, contrived, not to increase the power of judges or juries, but to secure the sovereignty of the people. This would not be secured, by inferring from the limitation of legislative power elected by the people, an unlimited judicial power not elected by the people. To distrust and limit responsible and removable agents, and trust without limit irresponsible and immoveable, could never have been intended.
In the states, judicial power is secured against executive influence in several modes. In two only, can a single will appoint judges; in these, they are removable by an address of two thirds of the legislature, and the governour is elected only for two years immediately by the people; in the others, judges are appointed by numerous and popular bodies, which can plant republican principles on the bench, and invigorate them after they are planted. This fact, both demonstrates the publick disapprobation of the judicial system of the general government, and discloses a remedy against its becoming an executive implement.
And this remedy is sufficient, if we exclude the idea of converting judicial power into a political department. This is only attainable by bestowing publick confidence upon judicial power, and publick confidence can never be purchased, except by actual responsibility. We here detect the false construction of the term ‘independence.’ The independence, dignity or power of an agent, is reflected from the confidence and power of his principal. By depriving the agent of this confidence, you rob him of his independence. No sovereign will confide in agents, not responsible to him; and therefore judicial independence of sovereign power, is the destruction of genuine judicial independence.
In England, the independence of judicial power was produced, by delivering it from the influence of executive power, and exalting it to a dependence upon the will of the sovereign; in the United States, the independence of judicial power is destroyed, by delivering it from the will of the sovereign, and degrading it nearly to the level from whence it was raised in England; it will therefore become the implement of executive power, for want of the confidence and support, begotten by a dependence on the sovereign, as it was in England on account of the same defect.
Thus we are conducted to the only mode of exalting judicial power into a political department, which would be conformable to our principle of division. It can only be effected by bestowing upon it the publick confidence, and that can only be bestowed by responsibility to the publick.
Disunited from the sovereign power, by the appointment and patronage of one of its creatures, it will reap the distrust and contempt of the nation, who will never transfer to judicial power, thus degraded or corrupted, any portion of their confidence, from a legislature, elective and responsible; just as the Lords and Commons of England suspected and despised the judges, so long as they were under the influence of the king.
Dependence upon the sovereign power, is the only species of independence, of which judicial power is capable. If it is deprived of this species of independence, it invariably becomes a dependant or instrument of some other power. Deprived, under our policy, of a dependence on the nation, judicial power has no other alternative, but to become a dependant of legislative or executive power. It is too weak to set up for itself. In the states, it has been subjected to legislative power; under the general constitution, to executive; and if ever a president should attempt to acquire monarchical authority, judicial power must therefore second his designs.
The independence and strength of power, in every section of our policy, is in proportion to their dependence on the people. This term, being applied indiscriminately, to legislative, executive and judicial power, does not admit a contradictory construction in relation to either, so as to have the double effect, of admitting the dependence of two departments or two objects of the same word, on the sovereignty, and denying it as to the third.
Out of the principles of division and responsibility to the nation, has arisen the idea of one political agent being independent of another. Dependence of one agent on another, would be an accumulation, not a division of power, and power is not made responsible, by its accumulation. Independence of the nation, is at least equally inconsistent with the principles of division and responsibility. It is the same craft which once defended judicial dependence on a king, which now defends judicial independence of the nation. The end of both doctrines is to destroy the best pledges for civil liberty, namely, division of power, and responsibility to nations.
Independence of one agent of another, was not invented to strengthen, and so render power insubordinate to the national will; but to weaken it, for the exact contrary purpose. To glide the judicial power, under a misapprehension of this single word, into a state of insubordination to publick will, into a sovereign power over law and constitution; and into a dependence on executive power, contrary to the policy the word has been used to impress, is one of those errours, overlooked on account of its excessive visibility.
A sovereignty over the constitution, objectionable as it would still be, would be safer in the legislature, than in the judiciary, because of its duennial responsibility; and because it would not naturally devolve from the legislature upon the president; but an excessive power in weak hands, inevitably becomes vicarious.
But if judicial power can be erected into a political department, capable of restraining deviations from the constitution by the legislature, it would probably contribute towards the preservation of our policy. Publick opinion is now the only legitimate guardian of obedience to the constitution; its sloth and inattention, invites and overlooks aberrations from it, amounting to a tendency, which a watchful political judiciary would detect and control; whilst public opinion would still retain its sovereignty unimpaired, and act as forcibly as at present. And a division of the national confidence between the legislature and judiciary, would carry a degree farther the principle of dividing power; but this can never happen, so long as one is subordinate, and the other insubordinate to national will.
There is a manifest distinction between a political and municipal department; and judicial power, to constitute either, must have its attributes. An origin from the sovereignty and independence of any other department, are attributes of a political department; but a municipal department, is a mere detail of law; and a strict submission to law, its inseparable quality. The attribute of a political department is destroyed, by an origin from or an influence by another department; and the quality of a municipal department is destroyed by an independence of the legislature and sovereignty: a judiciary thus situated, is a nondescript legal or political being. The independence of a political department, cannot exist in an executive creature; nor can a genuine and useful enforcement of law, flow from an independence of the sovereign power.
Let us illustrate the idea by a supposition. The English sovereignty is lodged in the parliament. The sovereignty and the legislature is the same. Judicial power is considered as a mere municipal detail. It is therefore subject to the will of this sovereign legislature and has no power to disallow a law, or change the constitution. Here is consistency. But suppose this sovereignty and legislature could neither appoint nor remove judges; that they were approved and tried by the House of Commons, being nominated by their speaker; and that they could repeal or make law and constitution by precedents: are not the consequences apparent? The English parliamentary sovereign would lose the power of self government; the judges would cling to the commons, they would undermine the sovereignty of orders, and would gradually convert it into a representative democracy. Such is our case. Neither national sovereignty, nor legislative power, nor popular representation, appoints, has a power over, or influences the judges. They are under no responsibility to act according to the will of our sovereignty, or of our legislature. They are nominated by the president, and approved and tried by the senate; and they make or repeal law and constitution by precedents. Therefore they are under the same influence to undermine the popular sovereignty, as the supposed judges would be to undermine a monarchical sovereignty, or a sovereignty of orders. Can a judicial independency of the American sovereignty, prevent the introduction of monarchical principles, because a judicial dependency upon the English sovereignty, prevents the introduction of republican?
Judicial power has never appeared in any political system, completely independent of the sovereign power, except under the constitution of the United States. Sometimes it is dependent on a monarch, at others, on a government or on the people; in England, it is controllable without delay or trial by the sovereign will. In our state governments its tenure is various; but these varieties unite in the common end, of some species of responsibility to the sovereign. In Connecticut, judges have been elected by the legislature for very short periods during two centuries, and their integrity or responsibility has never produced mischief. And a spacious field of comparison has appeared between judges appointed by a single will, and those chosen by popular bodies. The latter are not thrown into the back ground, in point of talents, integrity or republicanism.
A single will, is more likely to be seduced by dogma or ambition, and to overlook virtue in search of engines to advance selfish designs, than the people or their representatives. If this is not true, why do we erect republican governments? if it is true, why is it not applicable to judicial appointments?
Where is the difference in the application of republican principles, between legislative and judicial power?
If the office and powers of a judge are important, so are those of a legislator. If one may injure the publick, by crime, incapacity or errour, so may the other. If time and trial may disclose defects in a legislator, so may they in a judge. If there is a hardship in dismissing one without trial; the same hardship reaches the other. If the tenure of good behaviour, or a right to persevere for life in conscientious errour, would destroy the responsibility of a legislator, it will destroy that of a judge. And if legislative integrity and virtue are only to be obtained by election and responsibility, judicial integrity and virtue can never be expected from an insubordinate power for life. The power of construing the constitution and disallowing law, possessed by our judiciary, being functions of unexampled judicial power, and approaching nearer to sovereign and legislative power, than in any former instance; are considerations which bestow great weight upon this parallel.
Judicial responsibility ‘to God and conscience,’ is a counterpart of the ‘divine right,’ cheat, resorted to by innumerable kings, nobles and priests, to delude and oppress mankind. Our system renounces this species of responsibility, and is founded upon the principle of responsibility to the nation. Is this political principle to be lost, and the hostile principle of superstition substituted for it, by the cobwebs of inference and construction? Responsibility to God is the sanction of religion; what would be the influence of religious precept, if this sanction was dissolved? Such as will be the influence of political precept, unattended with responsibility to the sovereign.
Practice, as well as theory, sheds light upon this subject. It affords endless materials to prove the usefulness of judicial responsibility, and to display the force of habitual prejudices; but we will compress an idea of this fruitful argument into the following paragraph.
In England and America, the permanency of some judges, and the fluctuation of others; and the appointment of some by the people or the legislature, and of others by the executive; are positions contended for by the same persons, and the same societies; and habit and prejudice can supply the firmness with which these contradictions are defended. ‘Judicial independency’ and ‘chartered rights’ are the sounds which induce us to fall into them. Corporation judges are elected by the people and periodically changed; national judges are appointed by the king, and hold at the will of the parliament. Charles the second destroyed charters, for the purpose of transferring from corporations to himself the appointment of judges and other officers, as a prelude to despotism. The judges of the union are appointed as Charles designed to appoint corporation judges. His mode for assailing liberty, is ours for defending it. As a monarch, he wished to destroy the republican corporation mode of appointments; as a republick, we adopt the mode, which Charles conceived to be monarchical. A million of souls in London, and possibly nearly half that number in our towns, consider their elective judges as the best guardians of liberty and property; and the dismay of corporations, if deprived of this chartered right, would be equal to that of the friends to monarchy, if national judges were made elective and responsible. A furious zeal will often exist in the same state and in the same person for elective, or periodical, or responsible state or corporation judges, and for executive, permanent and insubordinate federal judges. The case occurs among the states of elective and periodical chancery judges; the habit and prejudice of England and of such states, are both portrayed in this imitation; property is as deeply affected by chancery judges as by law judges; and their power is uncontrolled by juries. To such habits and prejudices, and not to reason, a few of the states have surrendered our foundation principle of responsibility, in constituting state judicial power, and all of them in the case of federal judicial power. Reason is an umpire between contradictions, but she cannot reconcile them.
Names cannot change man’s nature, and cure him of his passions and vices; if they could, this discovery would have superseded the necessity of all our inventions for curbing the passions and vices of publick officers, by calling them judges. An experiment somewhat like this was tried by the Jews, but they gave it up for monarchy.
It is objected, that a responsible judge may be intimidated or seduced by a faction. Why is not the same objection advanced against a responsible legislature or executive? Because the confidence begotten by responsibility, protects these characters. Impeachment, it is said, will restrain the judge; will it also protect him, and purchase national confidence? A faction must rule the government, before it can intimidate or corrupt a judge; and will judges appointed by it, patronised by it, and tried by it, be safe against its influence? They are placed within the power of alternate factions, lest they should be influenced by factions; and without the power of the nation, lest they should be influenced by the nation. They fear party vengeance, and cannot expect national confidence or protection. If they were responsible to the sovereignty, they would expect its protection against demagogues and factions; but if they are independent of the sovereignty, they must depend on the faction which can try and condemn them. A paper, theoretick, didactick independence cannot shield judges against the influence or corruption of a man or a faction, possessing an intimidating or corrupting degree of power or patronage. If the cause of the terror or treachery exists, the terror or treachery naturally and inevitably ensues. Which is the best remedy against the evil; to create the cause, and to underwrite the ‘judges shall be independent of this cause of terror or corruption,’ or to forbear to create it? If the national confidence and protection through the medium of responsibility is added to this forbearance, it is probable, that judicial integrity, the object in quest, will be well secured. If a liability to impeachment is a security for this integrity, why is it not exclusively relied on to produce legislative integrity? If a responsibility to the sovereign power, exposes integrity to the influence of an individual or a faction, why is the legislature thus exposed?
A deviation from one principle is the road leading to another. Being taught that the insubordination of judicial power, will wash away human vices and passions, and that national opinion will corrupt it; we shall no longer consider this opinion as the most incorruptible species of political jury, and the only safe guardian of liberty and property. And our respect for the basis of our policy being once weakened, it will be gradually undermined, by diminishing the responsibility of legislative and executive power, until we come to Mr. Adams’s republick, composed of a hereditary executive and senate, and of septennial election.
The absence of responsibility is an evil moral principle, from which it is impossible that good moral effects can flow. And the consequences to be expected from an insubordinate power, able to knead and mould a constitution by construction, disallow indigenous law, introduce foreign law, fine, imprison and hang; and which in the struggles of avarice or ambition for wealth and power, must become their instrument; forcibly illustrate the correctness of our political analysis.
If, by the intervention of electors, or in any other mode, judicial power could be made responsible to national sovereignty, as are all our political departments, it is highly probable that it might be raised to the quality of such a department, with powers defined and limited; and that its elevation might become an important improvement of the principle of division. But a judicial sovereignty over constitution and law, without responsibility to the national sovereignty, is an unprincipled and novel anomaly, unknown to any political theory, and fitted to become an instrument of usurpation.
If judicial power was intended to be advanced from municipal to political quality, responsibility ought to have followed the advancement according to the elements of our policy; if not, its quality is merely municipal, and its claims of political rights, usurpations drawn from the limited nature of our governments, by which judicial power has constituted itself the guardian of all the rights retained by the people.
It resembles a legislature compounded of two branches, chambers or benches. The upper bench can pass no judgement, unless it has been previously passed by the lower; nor can it alter the judgement or verdict as passed by the lower; like the case of money bills in England and Virginia. Their separate functions bear a close analogy to the mode of legislating in England about the thirteenth century, when the parliament prepared the abstract and the judges dilated it into technical form. If the matter of the parliament was of more importance than the form given to it by the judges, juries are not the least important judicial bench. By adhering repeatedly to the same verdict, they can force the upper bench to pass judgements against their opinions; they can impose both law and fact on the upper bench, which can impose no fact or law upon them; and they judge really and substantially in every case, whereas the judgement of the upper bench is in most cases a mere formulary prescribed by their verdict. What better title has one judicial bench or chamber, and that the least powerful too, to the epithet ‘judicial,’ than the House of Lords in England, or the Senate of the United States, to the epithet ‘legislative?’ Was it intended to erect less than a moiety of judicial power into a political department, and even to endow this fragment with an irresponsible supremacy over the entire legislative and executive departments, by giving it an exclusive power to construe the constitution and annul laws?
Our aukward imitation of English policy, and misconception of its phrase, ‘judicial independence,’ is displayed in our lower judicial bench, as well as in the upper. We have made one dependent on a creature of our sovereignty, to avoid the old English errour of its dependence on a portion of theirs; and the other on the president through his marshal, in imitation of its English dependence through the sheriffs. In striving to exalt, we have degraded the judicial character, if it is more honourable to be dependent on the third part than on no part of a sovereignty. This degradation as to juries arises from our having overlooked them as composing a portion of judicial power, because the English overlooked and left them under the influence of the crown, when they placed the judges under the influence of the sovereignty.
We contend, that adequate salaries, not to be diminished; a tenure for life, only to be lost by crime or death, and not by folly, ignorance, incapacity, lunacy or idiocy; and a complete exemption from the influence of the sovereign, are all necessary to secure the independence of judges, and we expect the independence of juries, from no salary, an ephemeral tenure, and the culling of an administration party spirit for each particular case.
It is evidently of equal or superior importance to life, liberty and property, that juries should be independent of kings, presidents, factions, and demagogues, as that judges should be so. The verdicts under the sedition law were the ground work of the judgements. Judges were made independent of the crown in England, because judgements were made instruments of tyranny. Verdicts of juries may become such instruments. A president can select juries of his own faction, by his officer, the marshal, and infallibly mould political verdicts.
The king of England often influences verdicts by means of a sheriff, less dependent on him, than a marshal on the president. The office of sheriff is both less lucrative than the office of marshal; one is rotary, and the other capable of continuance by the will of the president. The continuance of a great income tempts; and the certainty of returning speedily into private life, does not deter, in the case of the marshal. Accordingly we meet with many acquittals in England, and with few or none in the United States, in prosecutions under sedition laws.
The dependence of one judicial branch on the sovereignty of the country, is some security against the dependence of the other on the crown; for in England we find judges sometimes deciding contrary to the will of executive power, since their dependence on the sovereignty of the country.
Here, a security against executive influence over juries, is rendered more necessary, by the irresponsibility of the judges to the sovereignty, and none is provided. The dependence of judges on the sovereignty (the security against packed juries, and the source of all those acts for which English judges have been celebrated) is both relinquished in the United States, and a provision is also made for corrupting or influencing them by an additional office from executive power, in lieu of the parliamentary vote.
By using English words, and subverting English principles, we have made a judicial power independent of the sovereignty, and almost entirely dependent on executive will. The jury branch is unequivocally so; and the upper branch is rendered more so than in England, by its independence of the sovereignty, and capacity to receive executive patronage. And if executive influence in England over judicial power, sheds the blood of patriots, it is improbable that in America it will turn its fury against traitors to patriotism.
In showing that by some strange fatality, the constitution of the United States had abandoned the precedent it intended to copy, and violated the principle it intended to establish, namely, ‘that judicial power ought to be independent of and unbiased by executive power,’ no use has been made of the remedy by impeachment, because it is nearly equivalent in both countries, but somewhat worse in the United States. Neither the Senate nor the House of Lords constitutes the sovereignty; one represents a factitious being, called states, the other is itself a factitious being, called a privileged order. The Senate of the United States is a branch of executive power, which is not the case with the House of Lords. It is a party in the appointment of the judges, it has the exclusive privilege of trying, which is not the case with the House of Lords. Judicial responsibility to the House of Lords was not a sufficient security for the national interest, because it was only a portion of the sovereignty; and therefore a responsibility to the entire sovereignty is provided. The objections apply with five-fold force to the Senate of the United States. 1st. The whole body is an executive order, participating in all important executive functions. 2dly. The whole body is an order as representing the factitious portion of the sovereignty of the United States, call states, which from its nature can only act by representation, and not in person, like the factitious portion of the English sovereignty, called nobility. 3dly. One section of the Senate is composed of an order or separate interest, representing large states. 4thly. The other section, of an interest representing small states; and lastly, the Senate constitutes no portion of the sovereignty of the United States. As the House of Lords would be partial to judges who had sacrificed the publick interest, to the interest of the noble order; so the Senate would be partial to those who had sacrificed the popular interest, to the interest of the state governments. So far the insufficiency of impeachment to secure responsibility to the publick interest, is equal; but the four other objections to the Senate, render the insufficiency of judicial responsibility by impeachment, greater in the United States than in England, where experience disclosed the necessity of an additional responsibility to the whole sovereignty. There is very little difference between making judges responsible to the functionary who nominates or who approves. They form in union the executive power which appoints. They never thought in England of trusting to an impeachment before the king, for judicial independence and integrity. In England, the effort has been to prevent judges from being responsible to the power appointing them; here, to make them so. Against executive influence over the upper judicial branch, we have only the security of impeachment before a section of executive power; and against the same influence over the lower judicial branch, we have no security at all. The expression, ‘reserved to the states or to the people,’ implies the dual nature of the general government, and each portion ought to possess some security over judicial power for the preservation of its reservations. The latter has none. The former, one mingled with executive influence, party spirit, and a remediless contumacy of individuals for six years.
The inefficacy of impeachment from its own nature, to produce the contemplated responsibility, has not been stated. In all political cases, it is guided by party, faction, revenge or prejudice. Sentences flowing from these sources, are neither sustained by publick respect, nor calculated to produce judicial integrity. Judges, to escape the vengeance of impeachment, must appease the passions which inflict it, in place of consulting the publick good. As integrity is no protection, and guilt no prognostick of conviction, this vengeance excites commiseration, and procures respect. And yet, at an epoch when the impeachment of judges has fallen into disgrace and disuse in England, where it was invented; it is exclusively relied on in the United States, as the remedy against the influence of executive over judicial power. A remedy, in which conviction will seldom be thought a proof of guilt.
It is a policy founded in an obvious contradiction. The judges for trying ordinary and private cases, are instituted for life, and absolved from a subjection to the silent suffrage of the whole sovereignty, which might send them quietly into retirement, without throwing the firebrand of impeachment amidst the worst passions with which society is afflicted. But the judges of the highest officers of government, and the most important publick cases, are instituted for only six years, and subject to dismission by a silent vote of representatives of sections of the sovereignty. If a responsibility to one of these sections by election, will secure judicial integrity and independence in these major cases, where it is most likely to fail; a responsibility to the whole sovereignty or its representatives, will secure it in the minor cases, where it is less likely to fail. And if the independence and integrity of the senatorial judges is not secured under their periodical election by state legislatures, then impeachment before judges without independence and integrity, is no security for the independence and integrity of the judges to be impeached.
To determine the propriety of leaving in the hands of executive power, its influence over judicial, it is necessary to comprehend what is meant by judicial independence. If it means that judicial power ought to be independent of the sovereignty and the government, and constituted into an umpire between these parties, to administer the constitution to both; then the price paid for it would be the dependence of the nation and the government, upon judicial power. But this construction is violated by making it responsible to a section of one. If it means, that the judicial section of government ought to be independent of any other section, a responsibility to the sovereignty is consistent, and a responsibility to a section of the government inconsistent with this meaning. To one of these interpretations, the idea of judicial independence must be confined. By the first, judicial power would be made despotick; by the second, a responsibility to a section of the government is forbidden, because it makes judicial power dependent on that section, if a responsibility to the sovereignty would make it dependent on the sovereignty. No mode exists to avoid the dilemma of one of these constructions, but that of making judges responsible to the sovereignty or its representative, but independent of every section of the government.
Legislative power could not be independent, if legislators were liable to impeachment before a court for legislative acts; yet it would be equally so with judicial power, liable to impeachment for judicial acts before the senate; and legislative power is considered as independent, though it is dependent on the sovereignty; demonstrating that the term only implies, an independence of other branches of the government. The independence of judicial power is intended to prevent its being made an instrument of tyranny by another branch, not to make it a tyranny itself. If it is placed beyond the coercion of sovereignty, and made responsible to another branch of a government, it is forged exactly into the instrument intended to be avoided. Its responsibility to the English king, and independence of the parliament or sovereignty of the country, made it such an instrument. Had this responsibility been transferred from the king to the House of Lords, it would have remained such an instrument.
It has been heretofore denied that the judicial power possessed an exclusive privilege to determine the constitutionality of a law; and asserted, that juries and private individuals participate in this right, upon the ground of the nullity of every act by a delegated authority, not warranted by the delegation. In support of these opinions, we must again recollect, that judges constitute but one judicial bench or branch, and that a verdict must be sent to them by the jury bench before they can make a judgement; just as a bill must be sent by one legislative branch to another, before it can be made a law. Are the jury bound to draw and pass this verdict without even considering its constitutionality? What would be the complexion of a legislature, with one branch under such an obligation? Suppose the constitution had expressly invested the court and jury with a power to disallow a law by proclamation as void, and that the court had proclaimed to that effect, but the jury oppositely. Even if an individual is tried for violating a law, because he judged it to be unconstitutional, he is acquitted if he judged right; proving that he had a right to judge.
But although judicial power has no right to enact or repeal law, yet it can effect both ends to great extent by its judgements in private cases; and it has often done so for the purpose of making political or revolutionary law. The English judges destroyed the law of entails, to weaken the power of the nobility, and strengthen the power of the king. The same judges affirmed a law for extending the power of the House of Commons from three years to seven, and thus made the only fragment of the government, over which the people had a feeble power, independent of them. And the judges of the United States have declared an entire code of laws, passed in a foreign nation some centuries before the union, to be laws of the union; although the constitution is literally prospective both as to legislation and the organs of legislation. Had our judges decided differently, their decision would have repealed the common law code. Without inquiring whether their decision is right or wrong, it suffices for our argument to shew, that such is the connexion between legislating and judging, that one may be easily run into the other; and that it is impossible to keep these powers separate and distinct, as our theory requires. If this is true, where is the consistency of concluding that one species of legislation ought to be independent of the sovereignty and another responsible to it? If congress had by law declared the common law of England to be in force, the people could by election have enforced a repeal of this law, but a similar law is passed by judges whom the people cannot compel to repeal it.
The treaty making power is purely executive, or at least the entire natural sovereignty of the country, is excluded from sharing in it. By ‘natural,’ I mean the people. State governments are artificial beings, and nearly the whole treaty making power is the creature of these artificial beings. It is not meant to discuss the propriety of making law by treaties, without the assent of the natural sovereignty or its representative, and by a moiety of a legislature, but this mode of legislation is exhibited to illustrate the defectiveness of judicial responsibility to the sovereignty. In this mode, the sections of the government which appoint and try judicial power can make laws. These laws may have great political influence and gradually change our policy; and yet the sections of the government which make them, are only responsible to their own creatures and dependents. Had judges and juries been responsible to the sovereignty, it might more safely have established a species of legislation, in which it does not participate. Treaties may more easily and plausibly extend executive and senatorial power, than the time of service of the English House of Commons was extended; and judicial power might be the instrument for enforcing such laws and subverting our policy. It is as easy to pack laws by means of treaties, as to pack juries by a different executive engine. The question is, whether a judicial power, responsible to the executive branches, which branches have an exclusive right to legislate through treaties, is a sound check upon the constitutionality of this species of legislation? Executive power is the universal destroyer of every sovereignty like ours, and our sovereignty invests its natural enemy with an exclusive power of legislating, empanelling juries, and appointing and trying judges.
Our first criticism of the legislative principles of the United States, is directed of course to the sexennial election of senators. The degree in which an independency of publick opinion for six years, is able to efface legislative integrity, and excite disloyalty and avarice, beyond an annual responsibility, by figures and theory, is as six to one. By experience, it is nearly demonstrated in the British House of Commons. The maxim ‘that tyranny begins where annual election ends,’ subscribed to by Mr. Adams in the prime of life, and copiously applied by the people of the United States, is deserted and reversed in the cases to which politicians have thought it most applicable; where the power delegated was most dangerous. And the reversal of this maxim in the tenure of the president and senators of the United States, may possibly be as mortal to our policy, as the desertion of that so nearly allied to it, which dictated consular rotation, was to the policy of Rome.
The long official tenure of the Senate of the United States has been unwarily suffered, from mistaking it for an aristocratical balance, whereas it is a body organized upon democratical principles, to equalise the rights of states, great and small, rich or poor; and to prevent aristocratical privileges or powers from being usurped by superior strength or wealth. The United States, far from intending to introduce an aristocratical principle by the senate, submitted to this equalising democratical regulation, for the same reasons that rich and strong men submit to an equality of rights with the poor and weak. In considering therefore the Senate’s time of service, we ought to be guided, not by a false, but by the true motive for its form; and to discern that the question is not whether a long or a short official tenure is best to sustain an aristocratical balance, but which is best to sustain a democratical equality between unequal states. Which is best to sustain a democratical equality of rights between men unequal in wealth or strength, is exactly the same question. A long official tenure will produce in both cases the same effects. If an independence of the will of constituents, for a period almost amounting to the probable duration of the incumbent’s life, would instil aristocratical principles into the functionaries substituted to preserve democratical rights between individuals, the same cause will instil the same principles into those constituted to preserve the same rights between states. The infusion must be healthy or poisonous as to both objects, or as to neither; and the question simply is, whether it is good or bad; and not whether it is of the singular quality, to cure, drunk out of one cup, but to kill from another; just as the same popish relict will draw down blessings upon the orthodox, and curses upon the heretical.
But the exposure of legislative power to executive influence, is unquestionably the heel of Achilles, omitted to be immortalized by an ablution in good moral principles, and left exposed to the poisoned shafts of corruption.
The division and responsibility of power, and the independence of political departments of each other, are the vital principles of our policy.
The legislature, as the most powerful political department, ought not to be influenced by one less powerful, because a weaker power able to make a stronger subservient to its views, acquires an unconstitutional force. What can exceed the absurdity, of considering the principle of separating departments, and delegating different powers to each, as essential to a free government; and yet providing an influence for executive over legislative power, which enables it really to legislate, contrary both to the theory and letter of the constitution? The king of England would be a weaker power, than an independent House of Commons fairly elected; yet, the influence which annexes their power to his, makes him irresistible. Congress, as constituting a complete legislature, was intended to be placed in a state of far greater independence of the president, than the lords and commons were of the king.
He who can apply fear or hope to the human mind, obtains subserviency to his designs. A president may bestow offices and contracts upon members of congress, which excite the fears and hopes of all men; therefore he may obtain an influence over their minds, and destroy or lessen the independence of the legislature. His gradual progress in this work, and not the constitution, will become the thermometer of his power, in which the mercury may rise and fall, until war and debt shall fix it at the English standard. And the lines drawn by the principle of a division of power may be gradually effaced, by a commerce between the departments of government, without the concurrence of the sovereign power. These lines were intended to be fixed by the constitution; and their fluctuation is as inconsistent with common honesty, as with any definite form of government.
The effect of executive influence, interwoven by law with a form of government, although it is disowned as one of its principles, is before our eyes in England; its effect in the United States may be estimated, by comparing the means by which it is worked there, with the means by which it may be worked here.
The chief circumstances in which the cases disagree, are the elective and hereditary qualities of the two executives; the influence of a senate over the president in the exercise of his patronage, and of a council or ministry over the king; and the ineligibility to the legislature of all officers appointed by the president, whilst a part of the officers appointed by the king are re-eligible. They agree in a common capacity for directing the artillery of executive patronage, against legislative integrity; both bestow offices created and continued, and both dispense money raised by law.
We have shewn that an annual power, by means of the disbursement of a nation’s money and offices, has often enslaved it. The uncertainty of its tenure, whets its inclination to use the opportunity of acquiring one more permanent. And therefore it is more dangerous to entrust periodical than hereditary power with the means of acquiring undue influence. It has less to lose and more to gain. A king, though limited by orders as in England, would have weaker motives to impel him towards usurpation, than a president, liable to become a private citizen at the end of four years. Yet this king has been induced to corrupt the legislature for the sake of getting more power. When we entrust the same means to stronger motives for using them, the moral consequence is, that they will be used.
The ineligibility of an officer appointed by the president, is an addition to his influence. Pictures of an office, coloured by the imagination, will be contemplated and admired by many members; and whilst one office in England can only corrupt one member, because it is to be paid for after it is received; here it may corrupt several, because it must be paid for before it is received.
These trivial varieties constitute all the additional security for legislative independence here, whilst the plain coincidence in the decisive fact, of an ability in both executives to bestow office and money upon members of the legislature, demonstrates the certainty of a concurrence in effect. From the period in which Philip destroyed the liberties of Greece, by corrupting her orators, down to the present moment, at which we are hearing the groans of England, produced by the corruption of her orators; there is no instance of national safety or happiness, having been produced by a power in one man to corrupt eminent legislative talents.
It is better for a nation to have no elective legislature, than one which can furnish an individual with money and offices, and receive them from him; because this commerce requires more money and offices, than executive power would need without a legislature; and because the abuse would be more clearly seen, if the executive power created the national oppressions, which it dispensed in patronage. The English patronage produces heavier burdens to the nation, than it would do, if there was no House of Commons. A poor effort to meet this enormous evil, is made by our constitution, in an inhibition on the legislature to take new offices created by itself. It acknowledges the evil by an insufficient attempt to prevent it. The remedy does not pretend to provide for the case of money, to be gotten by contracts; insuffices for the case of old offices unnecessarily retained; and may be wholly evaded by transplanting officers.
Suppose the constitution had contained the following article: ‘The legislative, executive and judicial powers shall be distinct and independent of each other; that is to say, the president may influence the judges, by appointing and preferring them; and he may influence the legislature by means of offices and money, created, and raised by the legislature.’ Would this plain language have obtained the publick approbation?
It is admitted by Mr. Adams and all who defend the system of limited monarchy, that the safety of the plebeian order, rests upon the independence of its representatives of the other two orders. If either of these orders can influence these representatives, the limitation is abolished, and the plebeian order is enslaved. Integrity and fraud will share equally in the suspicions excited by a power to corrupt; and a want of confidence in popular representatives, will work in concert with bribery and corruption, to destroy the liberty which these representatives were instituted to defend.
An opinion, that the confidence of the people is lost, or a conviction that it is not merited, will eradicate from the mind of the representative a reliance upon the people, and plant fear and hatred in its place. This fear and hatred, combining with the influence of office and money, will produce an alliance against the people, between their own agents, and the power these agents were designed to control. If this reasoning is justified by the test of moral cause and effect; it is also justified by the experience of England. Theoretically and practically it results, that a power in one man to bestow offices and money upon a national legislature, is an evil principle; that it is an evil principle, so malignant as to eat out the best qualities of limited monarchy, and strengthen the worst; and that being homogeneous with the worst qualities of limited monarchy, it cannot be so, with the best qualities of republican government.
The system of a balance of orders, is bottomed upon the idea of some natural or political enmity, between the one, the few and the many. A power in the one, to corrupt the representatives of the many, is a mode of protecting the many against his enmity, inconsistent with the understandings of all mankind. No people can confide in representatives whom a king can influence; no king will confide in ministers whom the people can influence; and no individual would trust his liberty and property to an arbitrator, who expected from his antagonist a good office. As an executive power, to bestow offices on the representatives of the plebeian order, overturns all the principles of the system of balances; so executive power to bestow offices upon the representatives of a nation, will overturn all the principles of national self government; because there is so little difference between a plebeian order, and an entire nation, that the representative corruption, capable of subjugating the one, may be safely considered as capable of subjugating the other.
If the principle of executive patronage over the legislature, under the constitution of the United States, is calculated to produce all the evils which the same principle produces in England, and an additional number, springing from our policy, to which the English policy is not exposed; nothing can more justly merit constitutional extermination. An additional malignancy flows from the temporary and elective qualities of our executive power.
A president will be reduced to the alternative of using his patronage to corrupt the legislature, or of losing his office. By withholding from leading members, what they desire and he can give, a president purchases their enmity; if they could receive nothing from him, there would exist no cause for this enmity. With this legislative patronage, reputation and re-election will depend upon a crafty management of money and office; without it, both would depend on merit. In the first case, legislative testimony will be nothing but the tricks and artifices of rapacity and ambition; and sedition laws for locking up both truth and calumny, would be preferable to these tricks and artifices; under an exclusion of executive patronage, legislative testimony as to the conduct and character of a president, would be unsuborned.
A president, with a patronage over the legislature, must have a sort of prætorian cohorts. They will appear, and force themselves into employment, wherever an individual exists who can pay them. If a president disappoints the expectations of these legislative cohorts, he dies to the presidency; they can more safely attempt the political life of a good president, than disappointed military cohorts could the natural life of a good emperour. The motives are the same in both cases, and exactly those which draw forth from men their worst vices. Nor is there any difference between the largesses from quaternial presidents, and successive emperours under the Roman system of military murder and election, with respect to a nation, except the result of a calculation, whether quaternial election, or irregular periodical murder, will have most effect, in exciting and spreading the corruption of executive patronage.
It is so vicious, as to deprive the patron of the power of remaining virtuous. Hence good men were suddenly changed into wicked emperours. An ability in elected emperours to corrupt an electing army, destroyed their virtues. An elective president will be himself corrupted by an ability to corrupt a legislature. Importunity will assail him. Opposition will excite him. Ambition will entice him. Avarice will harden him. Driven on by his faction, and his passions, his virtue will seldom make any resistance; its struggles will be speedily suppressed by the host of foes, with which his power of patronage over the legislature, will cause it to be assailed.
It is a political drum beating for recruits, notifying where the bounty for taking the field against virtue, is to be had; and as the way to this bounty lies through the legislature, it draws the most impure qualities of human nature into the field of election, where the purest are necessary to sustain republican government. By invigorating and exciting the activity of our worst qualities to obtain popular favour, Mr. Adams’s charge against election, of an insufficiency to select virtue and talents, may be made true. These evil qualities will not in the legislature forget the motives which drew them thither; they will not forget that legislative hands can reach the richest coffers of executive patronage. But they will forget that it is the duty of legislators to advance the publick good, and their worst vice to sacrifice it to their own avarice or ambition.
It is essential to the purity of our policy, that the legislature should be unable to translate or prefer executive and judicial agents to more desirable offices; upon what ground is the translation or preferment of legislative agents to more desirable offices, by executive or judicial power, unessential to its purity? Is it less dangerous to society, that the legislature should be corrupted or influenced by the executive or judiciary, than that these departments should be corrupted or influenced by the legislature?
A prohibition upon the legislature to influence members of the executive and judicial departments by office, proves that this identical species of influence was considered as destructive of the principle of division of power. An allowance to these departments to influence the legislature by office, will destroy the principle of division, or what some may call the independence between departments, precisely in the same mode, as it would have been destroyed, by allowing the legislature thus to influence them. The whole difference is in the effect. The prohibited legislative patronage, might have worked slowly towards aristocracy; the allowed executive patronage, will work rapidly towards monarchy.
Stronger reasons exist for shielding legislative power against the influence of executive and judicial patronage, than for shielding these departments against legislative patronage; the legislature can supply them with money and offices, which they may give back to the members of the legislature; whereas they cannot furnish the legislature with either, to be given back to themselves. Offices and money, created or sustained, and taxed by the legislature, are distributed by the executive; and the bankrupt law endowed judicial power with considerable patronage; so that the legislature can extend, sustain, diminish, or cause to fluctuate, executive and judicial patronage, as it is pleased or displeased with the returns to itself.
It would even have been better, that the legislature should have been allowed to distribute among its members, a portion of the offices and money, produced by its laws, than to take them back from executive power; because thus it would have been shielded against executive or monarchical influence, and a power so direct to patronise itself, would have awakened the publick jealousy; which an indirect mode of effecting the same end, is calculated to lull. Then the evil would have been seen; now, the interlude between law and appointment (the puppets of legislative corruption and executive patronage) may hide the evil. Both modes of patronage are seeds of moral and political evil; one is cultivated openly and directly; it is therefore infinitely less pernicious, as is evinced in the instance of state legislative patronage; the other is cultivated secretly and indirectly, and is therefore infinitely more pernicious, as is evinced in the case of England.
The arguments against shielding the legislature from executive patronage, are, that it may deprive patriots of merited reward, and the community of valuable services. Rewards to be bestowed by executive or monarchical ambition, and services to be guided by executive or monarchical designs.
Political merit, consists in preferring the service of a nation to the service of an individual; individuals consider that quality as merit, which is subservient to their interest or designs; hence monarchs, instead of allowing merit to patriots, persecute them as traitors. A nation endeavours to select the genuine species of merit, an individual, the spurious; one seeks for the means of producing publick good; the other, for the means of advancing selfish designs. National patronage is applied with a view to national self government; individual patronage buys talents, or pacifies enmity, for the purpose of destroying national self government. Therefore popular patronage strives to reward such merit and to procure such services, as will advance republican principles; and individual patronage, strives to reward merit and procure services, for advancing individual interest.
The English example and universal experience prove, that the patronage of an individual corrupts what nations consider as merit and patriotism. To bestow on one man a great patronage, from a hope that it will reward the virtues which it destroys, is founded upon a probability, that a moral cause will produce a different effect here, from that which it has constantly produced elsewhere, and is now producing in England.
By detaching the patronage of one man, into elective legislatures, to select talents for publick service, the nation will reap a harvest of services, as abundant as the harvest of rewards, which virtue and patriotism will reap. When one man dispenses the rewards to merit, merit will consist in our attachment to the interest of one man. When the legislature is converted into a school for those intrigues and artifices, begotten and nurtured by the admission of executive patronage within its walls, the antipathy of the mind against fraud and deceit will be gradually erased; politicks will be converted into a science, too mysterious and complicated for popular comprehension; and the diploma of proficiency will constitute the worst evidence of a title to national rewards, but the best, to executive.
If the publick good requires, that members of the legislature should be incapable of receiving offices and contracts, from executive power, it would be immoral and wicked to betray it, for the sake of gratifying individuals. To elude this truth, the necessity of recurring to the talents assembled in legislative bodies, adequately to fill other offices, is suggested. If this argument has weight, national self government cannot exist. It is simply Mr. Adams’s idea of a natural aristocracy in a new form. Men are unhappily inclined to be disrespectful to themselves, by admitting the idea of a monopoly and rareness of talents; and although the delusion is known to vanish, whenever it is examined, yet it continues to govern half the world, who only believe the fact, because they have never looked into the evidence. Thus they are willing to suffer the evil of executive patronage over the legislature, to gain for society the benefit of these unseen talents; as men have been willing to suffer the evil of a corrupt priesthood, to gain for society the benefit of unfulfilled oracles. Whilst philosophy boasts of having exploded one species of idolatry, she falls herself into another; and having delivered mankind from the invisible agency of false gods, she subjects them to the invisible talents of false patriots.
Above two thousand years past, the Romans annually found new talents in new consuls, capable of conducting publick affairs, with unexampled prosperity. The French revolution has proved, that even military talents are scattered every where among men. All civilized nations, must have abundantly more men fit for office than offices to give them. No nation can support any form of popular government, where this is not the case. If then the United States have sent executive patronage into their legislature for officers, from a supposed deficiency of talents without its pale, it is done upon a calculation which acknowledges their unfitness for any species of popular government.
Had nature been accustomed to produce occasionally rare and extraordinary talents, it is highly questionable whether they would have been beneficial to mankind. Shall we believe erroneously that she visits us with one calamity, in order to fix upon ourselves another? Shall we corrupt the legislature, to come at rare talents which do not exist, and which would, if found, be a calamity; or be contented with such talents as nature does create, and with legislative integrity in the bargain? If such men as Alexander, Cæsar or Cromwell are examples of this vast superiority of talents, it would be better to let them remain unknown, than to awaken them by executive patronage over legislative power.
The truth is, that rare talents, like a natural aristocracy, are created by ignorance, and that cunning takes advantage of the opinion to scourge mankind. Ignorance is the source of slavery, and knowledge of liberty, because the first begets, and the other explodes the errour, ‘that some men are endowed with faculties, far exceeding the general standard.’ In thinking it necessary to send executive patronage into legislative bodies to fill offices, lest the publick should lose the benefit of these imaginary faculties, we have adhered to one preceptor, who teaches nothing but slavery; and rejected the admonitions of another, who alone teaches liberty.
It will be admitted that virtue and talents are as necessary for legislative, as for any other kind of publick servants; and that these qualities, transplanted by executive patronage into other departments, ought to be replaced by a full equivalent. If this reimbursement can be made, the pretext that a dearth of qualification for office, makes it necessary to corrupt legislatures, in order to obtain incorrupt officers, is false; if it cannot, the exchange must be injurious to the nation. In England, this argument would be less conclusive, on account of the eligibility of most of the great executive officers to the House of Commons, and the session of all in the House of Lords. There the idea of a dearth of qualification for office, is countenanced by heaping offices, civil, military, legislative, executive and judicial, upon one man. Here, we admit its truth by exposing the legislature to executive patronage, in imitation of the English precedent; and assert its falsehood, by prohibiting accumulations of offices. And though the president remains isolated between our affirmative and negative, we have copied it in a mode excessively increasing its malignity, first by the ineligibility which loses the purchase the instant it is paid for; secondly, by the necessity for fresh means to corrupt or influence such talents, as may appear after the best are transplanted; and thirdly, by the removal of the highest virtue and the best talents from the department, upon which the liberty and prosperity of nations must for ever depend. Ingeniously providing both a constant drain for publick treasure, and a constant drain of talents and virtue from legislatures; and managing to extract from the evil principle of exposing them to the patronage of one man, the evil effects both of stupifying and demoralizing them, one of which has sufficed for the nation we have imitated.
Let us consider the following extract from a late English author. ‘But the history of the reign,’ that of Henry the 8th, ‘yields other lessons than those of a speculative morality; lessons which come home to the breast of every Englishman, and which he ought to remember every moment of his existence. It teaches us the most alarming of all political truths. That absolute despotism may prevail in a state, and yet the form of a free constitution remain. Nay, it even leads us to a conjecture still more interesting to Britons, that in this country an ambitious prince may most successfully exercise his tyrannies under the shelter of those barriers, which the constitution has placed as the security of national freedom. Henry changed the national religion, and, in a great measure, the spirit of the laws of England. He perpetrated the most enormous violences against the first men in the kingdom; he loaded the people with oppressive taxes, and he pillaged them by loans, which it was known he never meant to pay; but he never attempted to abolish the parliament, or even to retrench any of its doubtful privileges. The parliament was the prime minister of his tyrannical administration. It authorised his oppressive taxes, it gave its sanction to his most despotick and oppressive measures; to measures, which of himself he durst not have carried into execution; or which, if supposed to be merely the result of his own arbitrary will, would have roused the spirit of the nation to assert the rights of humanity, and the privileges of a free people. Our admirable constitution is but a gay curtain to conceal our shame, and the iniquity of our oppressors, unless our senators are animated by the same spirit which gave it birth. If they can be overawed by threats, seduced from their duty by bribes, or allured by promises, another Henry may rule over us with a rod of iron, and drench once more the scaffold with the best blood of the nation. The parliament will be the humble and secure instrument of his tyrannies.’∗ Henry’s influence made ‘the parliament the prime minister of executive tyranny, and an instrument of the most despotick measures.’
Compare this influence of Henry’s, with the present influence of the crown in England, and consider, which possesses in the highest degree, the properties of bribery, alluring by promises, permanency, and capacity to convert a parliament ‘into the humble and secure instrument of executive tyranny.’ Were Henry’s parliaments more subservient to the crown in money matters, than those subjected to the modern species of influence? Were his pecuniary oppressions more intolerable, than those which modern parliaments sanction without difficulty? Or was his influence more systematick and regular, than that of the crown for the last century? If not, the modern system by which executive power influences legislative bodies, is more dangerous than Henry’s; and his sufficed to make him a tyrant.
Executive patronage over legislative bodies, is the essential quality of this modern system, and the only quality by which ‘parliaments can be made the prime ministers of tyrannical administrations.’ By its means only, can ‘absolute despotism be introduced whilst the form of a free constitution remains.’ This alone is able to convert the only barrier against the usurpations of executive power, into a shelter for its intrigues, a sanction for its oppressions, a ’secure instrument’ for its ambition, and a vehicle for revolution to be effected ‘by changing the spirit of laws.’
Had our constitution been formed exactly upon the English model, that experiment would have been a map, upon which the progress of a government, guided by the vicious principle of executive patronage over legislative power, could have been exactly traced. Is a principle, too vicious and corrupt for limited monarchy, sufficiently pure for a republican government? Will limited monarchy exist only in form, and be converted in fact by this principle into a despotism; and will republican freedom exist in fact, exposed to the same legislative corruption, which has reduced limitations on monarchy to form?
Why should we conceal from ourselves the plain truth? Representation is either the best security for a free government, or the best instrument for the most oppressive. Influenced by one man, it is an instrument; uninfluenced, a security. Need we reason upon the question? Has not England a House of Commons, and France a tribunate?
In England, executive patronage has left the entire form of the constitution standing, and annihilated two thirds of its substance; it is formed of orders, and two of the three are reduced to cyphers or instruments. Here, though our constitution is not formed of king, lords and commons, or of any classification of men, but of the principles of division, responsibility, and national self government, yet executive influence over judicial and legislative power, can also destroy its substance and leave its form standing, by converting the sentinels of the people into the instruments of ambition, and demolishing the efficacy of division by a corrupt unanimity.
It may fall upon the house of representatives to elect a president, and each candidate may promise, and if he is elected, bestow an office upon every elector. The same effects will follow, as if the parliament was to elect a king. Executive patronage, in the real and supposed case, constitutes the utmost temptation to be treacherous to a nation, exactly where the publick good requires the utmost integrity. It is impossible to contrive a better scheme than this for exciting the virulence of faction, by the goadings of ambition, avarice, self interest, and all the most violent passions; or to take a better chance for producing a civil war.
Since oracles were exploded, no mode has been discovered for deceiving and oppressing nations, equally treacherous and successful with that of corrupting their representatives. Confidence, inspired by religion in the first case, and by election in the second, is the mantle for fraud in both. The influence of one man over a nation, fraudulently or forcibly exercised, is the essential principle of monarchy; as a monopoly of wealth by an exclusive interest at the publick expense, is of aristocracy. In a former part of this essay, an attempt was made to prove, that a mixture of monarchical and aristocratical ingredients in democratical systems, caused those disorders, ascribed by Mr. Adams to inaccuracy in balancing them; and that however commixed, their natural enmity would continue to produce pernicious effects, as in all former experiments. If executive influence over legislative bodies, is a monarchical ingredient; and if a paper system is an aristocratical ingredient; all the horrours of a warfare among orders must ensue, either on Mr. Adams’s principles or ours; because, according to him, it cannot be prevented, except by an accurate balance of orders; according to us, it cannot be prevented on account of their natural enmity to each other.
The prospect of victory is on the side of executive power. The code of its political tacticks, lies open in the example of England. That example may accelerate its success, by causing it to be expected. A president, by the legislative instrument, may provoke war, introduce funding and banking, raise armies, increase taxes, multiply offices, and commit the freedom of the press to the custody of penal laws, with as much certainty and system as a British king; and add to his own power, by throwing the odium of his ambitious practices upon Congress; although, to borrow the words of the last quotation, ‘he durst not of himself have carried such measures into execution; or which, if supposed to be merely the result of his own arbitrary will, would have roused the spirit of the nation to assert the rights of humanity, and the privileges of a free people.’
If a president should, by an army, be rendered insubordinate to the legislature, and able to terrify them into his measures, all would agree that neither free or republican government could possibly continue; yet its manifest atrociousness would be some check upon the deed. If a president is not enabled to terrify, but only to bribe or influence a legislature into his measures, what would be the difference? That between having one’s wife ravished or seduced. Are not men safer against the first evil, and more frequently rendered miserable by the second?
These criticisms neither impeach the general structure of the government, nor impinge upon any local interest. No doctrine is advanced, not adhered to by state constitutions, and none condemned, to which the people have separately assented. Had they approved of bestowing monarchical powers upon an elective magistrate; of a judicial power insubordinate to the sovereignty, superior to the legislature, and subject to executive influence; or of admitting corruption into the legislature by some crooked path; an adherence to contrary principles would not have remained visible in these constitutions.
To bring the general and state governments under similar principles, would contribute to the security of the union. Hostile elements will ultimately go to war. Hence the experiments of orders in all forms have failed. Their adverse principles have never been able to subsist peaceably together for any considerable time. Influence and insubordination are the contraries of division and responsibility; and the same effects are produced by compounding a government of opposite and hostile orders of principles, as of hostile orders of men; because a contrariety in principles causes the hostility among orders.
This contrariety is the test to establish the sufficiency of our analysis for defining governments by moral principles, and enabling us to foresee effects. We have, for instance, considered division of power, responsibility and legislative purity (one side of a contrariety) as good, and as producing good effects; and monopoly, insubordination and corruption (the other side) as evil, and as producing evil effects; and deduced from these considerations the reasoning of this part of our essay. The mode of applying our definition to particular cases consists merely in stating plain questions. For an instance. Is the power of the president to influence the popular representatives, or the power of the government to neglect the militia, and use standing armies, good or evil, monarchical or republican, or congenial with the policy of the United States or of England, or of both? Is the policy of these countries the same?