View of the Constitution of the United States. St. George Tucker
same writer, that all the parts of the supreme power should be committed either to one person, or to one council: And the other interests of the state may require that they should be divided.
It is evident, from the case here supposed, that this ingenuous writer had the British constitution (in which there is an hereditary prince, in whom the supreme executive authority, including the power of peace and war, is vested,) in his eye, when he wrote this passage, evidently calculated to justify that principle in the British constitution, that the regal character must possess some share in the legislature; as otherwise it might happen, that laws might be enacted, which he, being responsible to no one for his conduct, would not execute. That constitution must indeed be radically defective, where the executive authority may safely refuse to execute the law. But it may be doubted whether this defect is at all remedied, by allowing the executive magistrate, not only an absolute negative over every act of the legislature, but in fact an initiative authority within the legislature itself: and this initiative has been so long sanctioned by practice, that it is now considered as the peculiar province of the principal minister of the crown,16 to bring forward every specific proposition for a tax that may be made in the house of commons; to whom the initiative right, in this case, is said to belong, exclusively not only of the crown, but even of the house of lords, or second branch of the legislature. But to return to our subject.
Dr. Hutchinson concludes, that none of the simple forms can be safe for a society. That if those deserve to be called the regular forms which are wisely adapted to the true ends of civil polity, all the simple forms are to be called rather rude and imperfect. That complex forms, made up of all three, will be found the best, and most regular, according to the general doctrine; both of ancients and moderns.
It was observed in another place, that governments may be variously modified upon the democratic principle: and it is perhaps susceptible of proof, that a representative democracy is more capable of such a modification, as may unite all the real advantages of the three simple forms of government, without hazarding the inconveniences actually inseparable from either, singly, than any other state, or body politic whatsoever.
The professed design, and obvious advantages of these mixed governments, is said to consist in the union of the public virtue and goodness of intention, to be found in popular assemblies, with the superior wisdom usually ascribed to a select council, composed of the most experienced citizens; and the strength, energy, and union of a government committed to the hands of a single person’s influence.
The benefits of the democratic, or popular branch, strictly speaking, may be preserved by a popular assembly, chosen annually, by the people of convenient districts, in fair and equal proportions, from among themselves; wherein the right of electing, and of being elected, shall be extended to every citizen having a sufficient evidence of a permanent common interest with, and attachment to the community: which assembly should possess the initiative right in the establishment of all laws, and more especially such as may impose or create any burden upon the state or its citizens. To preserve this branch from falling under the influence of men of wealth, an agrarian system should be established, to prevent the accumulation of wealth in the hands of a few, and the establishment of patronage and dependence among the yeomanry or farmers, by reducing them from the state of absolute proprietors of their farms, to that of tenants, or vassals, over whom, their rich landlords may acquire a kind of feudal authority and control. The best mode of obviating such an accumulation seems to be the partibility of estates among all the children, or collateral relations of persons dying intestate, and the absolute prohibition of all perpetuities in lands. If the members of this assembly be rendered incapable of holding, or accepting any lucrative office which may be created by the legislature, or filled by the choice of any other department of the government, their purity, integrity, and independence, will be unimpaired and unsuspected. They will not impose burdens which they must share in bearing, nor will they create offices, and increase emoluments, of which no part can arrive to themselves. They will not forfeit the confidence of their constituents by an abuse of the power confided to them, nor will they desire to extend those powers which another may be called upon the next year to exercise in their stead. If they have the power of nomination to office, in some of the more important ministerial and judiciary departments, in such mode as to give to the senate the power of selecting a smaller number from the whole number of persons nominated; and to the executive department, the final choice between those whom the senate may prefer; it might be expected that offices filled in such a mode, would be bestowed on persons eminent for their integrity, capacity, and diligence. If they were vested with a kind of censorial power likewise, or the right of impeaching such of the public agents as may betray their trust, and endanger the public happiness, such an assembly might be supposed to unite in it all the advantages which could be expected from a general assembly of the people in a democratic state.
If there be a second council, composed of fewer members, more advanced in age, and chosen from larger districts, by electors chosen for that especial purpose in the smaller districts by the people themselves, such a council may be presumed likely to possess more wisdom than any hereditary counsellors, and as much, both of wisdom, integrity, and of weight among the people, as any similar council constituted in any other mode; if one third, or one fourth, of the members should in continual rotation go out, every third or fourth year, there would always remain a sufficient number who may be supposed to have acquired an intimate acquaintance with the nature of the business they would have to transact; whilst the short period of three or four years at the end of which they must vacate their seats, and either return to the level of the rest of their fellow citizens, or owe their reelection to a general approbation of their conduct, would induce them constantly to bear in mind their duty to the public. … If no personal privileges were annexed to their station, and they, as well as the members of the popular assembly, were incapable of election to any other office; it would insure an honest independence of conduct, unswayed by hopes, and unawed by fears, from any other branch of the government. If to such a council every act of the initiative or popular assembly, were necessarily submitted for their amendment, approbation, or rejection, it might be presumed that no laws would be enacted, the nature and consequence of which had not been fully considered and digested, before they should become obligatory upon the people. If in those cases where the popular assemblies might have the power of nomination to office, the character of those recommended by popular favour were to undergo a scrutiny in such a council, and the number of candidates were reduced to two, or at most three, out of whom the final appointment should be made, the demagogues of faction would probably be excluded from office, in favor of those citizens, whose virtues and talents might give them a just title to a preference. A senate thus constituted, and restricted, might also, perhaps, be safely entrusted with the power of trying impeachments; in those cases, at least, where a member of the supreme judicial court, should incur the notice of the censorial power of the popular assembly: In all other cases, I should presume, that the judicial courts, would be the proper tribunals for such trials. In no simple aristocracy could a council as wise, as virtuous, and as faithful, be found.
The regal, or executive power of the state, might upon the same principles be lodged either in the hands of a single magistrate; or in such a magistrate with the advice and consent of a council, composed of a few select citizens, eminently distinguished for their fidelity, patriotism, wisdom, and experience, in the affairs of the state. The best mode of choosing such an executive body would probably be, by electors chosen from among the people, in several convenient districts, whose power should extend to that business, alone. If the chief magistrate be chosen in this manner, and for a short period; if after a certain period he be ineligible, for some years; if his council, (where such is assigned him) be composed of persons chosen in a similar manner, and going out by rotation at the end of two or three years, after their election; if they be precluded from any other lucrative office, during the period for which they may be elected; if they be liable to the censorial power of the popular assembly, and when removed from office return to the condition of private citizens; such an executive, on all necessary occasions, would possess all the energy, secrecy, unanimity, and dispatch to be found in a monarchy, without any danger of becoming the tyrants of the people, instead of their servants and agents. And a government so constituted would probably unite in itself every advantage which theorists ascribe to any complex, or mixed form of government whatsoever.
But such a government would be a