They are softly leading him to the sepulchre of precedents, to deaden his faculties and call attention from the scene of revolutions.
They feel that he is arriving at knowledge faster than they wish, and their policy of precedents is the barometer of their fears.
This political popery, like the ecclesiastical popery of old, has had its day, and is hastening to its exit.The ragged relic and the antiquated precedent, the monk and the monarch, will moulder together.
Government by precedent, without any regard to the principle of the precedent, is one of the vilest systems that can be set up.
In numerous instances, the precedent ought to operate as a warning, and not as an example, and requires to be shunned instead of imitated; but instead of this, precedents are taken in the lump, and put at once for constitution and for law.
Either the doctrine of precedents is policy to keep a man in a state of ignorance, or it is a practical confession that wisdom degenerates in governments as governments increase in age, and can only hobble along by the stilts and crutches of precedents.
How is it that the same persons who would proudly be thought wiser than their predecessors, appear at the same time only as the ghosts of departed wisdom? How strangely is antiquity treated!
To some purposes it is spoken of as the times of darkness and ignorance, and to answer others, it is put for the light of the world.
If the doctrine of precedents is to be followed, the expenses of government need not continue the same.Why pay men extravagantly, who have but little to do? If everything that can happen is already in precedent, legislation is at an end, and precedent, like a dictionary, determines every case.Either, therefore, government has arrived at its dotage, and requires to be renovated, or all the occasions for exercising its wisdom have occurred.
We now see all over Europe, and particularly in England, the curious phenomenon of a nation looking one way, and the government the other- the one forward and the other backward.If governments are to go on by precedent, while nations go on by improvement, they must at last come to a final separation; and the sooner, and the more civilly they determine this point, the better.*[20]
Having thus spoken of constitutions generally, as things distinct from actual governments, let us proceed to consider the parts of which a constitution is composed.
Opinions differ more on this subject than with respect to the whole.
That a nation ought to have a constitution, as a rule for the conduct of its government, is a simple question in which all men, not directly courtiers, will agree.It is only on the component parts that questions and opinions multiply.
But this difficulty, like every other, will diminish when put into a train of being rightly understood.
The first thing is, that a nation has a right to establish a constitution.
Whether it exercises this right in the most judicious manner at first is quite another case.It exercises it agreeably to the judgment it possesses; and by continuing to do so, all errors will at last be exploded.
When this right is established in a nation, there is no fear that it will be employed to its own injury.A nation can have no interest in being wrong.
Though all the constitutions of America are on one general principle, yet no two of them are exactly alike in their component parts, or in the distribution of the powers which they give to the actual governments.Some are more, and others less complex.
In forming a constitution, it is first necessary to consider what are the ends for which government is necessary? Secondly, what are the best means, and the least expensive, for accomplishing those ends?
Government is nothing more than a national association; and the object of this association is the good of all, as well individually as collectively.Every man wishes to pursue his occupation, and to enjoy the fruits of his labours and the produce of his property in peace and safety, and with the least possible expense.
When these things are accomplished, all the objects for which government ought to be established are answered.
It has been customary to consider government under three distinct general heads.The legislative, the executive, and the judicial.
But if we permit our judgment to act unincumbered by the habit of multiplied terms, we can perceive no more than two divisions of power, of which civil government is composed, namely, that of legislating or enacting laws, and that of executing or administering them.Everything, therefore, appertaining to civil government, classes itself under one or other of these two divisions.
So far as regards the execution of the laws, that which is called the judicial power, is strictly and properly the executive power of every country.It is that power to which every individual has appeal, and which causes the laws to be executed; neither have we any other clear idea with respect to the official execution of the laws.In England, and also in America and France, this power begins with the magistrate, and proceeds up through all the courts of judicature.
I leave to courtiers to explain what is meant by calling monarchy the executive power.It is merely a name in which acts of government are done; and any other, or none at all, would answer the same purpose.Laws have neither more nor less authority on this account.It must be from the justness of their principles, and the interest which a nation feels therein, that they derive support; if they require any other than this, it is a sign that something in the system of government is imperfect.Laws difficult to be executed cannot be generally good.
With respect to the organization of the legislative power, different modes have been adopted in different countries.In America it is generally composed of two houses.In France it consists but of one, but in both countries, it is wholly by representation.
