Thomas Paine · Complete work
Part II: Chapter IV, 3
Part II: Chapter IV, 3 of 41. Read it here for reference, or continue through the entire work without leaving the reader.
Open the complete readerOriginal 18th-century English
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.
The case is, that mankind (from the long tyranny of assumed power) have had so few opportunities of making the necessary trials on modes and principles of government, in order to discover the best, that government is but now beginning to be known, and experience is yet wanting to determine many particulars.
The objections against two houses are, first, that there is an inconsistency in any part of a whole legislature, coming to a final determination by vote on any matter, whilst that matter, with respect to that whole, is yet only in a train of deliberation, and consequently open to new illustrations.
Secondly, That by taking the vote on each, as a separate body, it always admits of the possibility, and is often the case in practice, that the minority governs the majority, and that, in some instances, to a degree of great inconsistency.
Thirdly, That two houses arbitrarily checking or controlling each other is inconsistent; because it cannot be proved on the principles of just representation, that either should be wiser or better than the other. They may check in the wrong as well as in the right therefore to give the power where we cannot give the wisdom to use it, nor be assured of its being rightly used, renders the hazard at least equal to the precaution.*21
The objection against a single house is, that it is always in a condition of committing itself too soon.—But it should at the same time be remembered, that when there is a constitution which defines the power, and establishes the principles within which a legislature shall act, there is already a more effectual check provided, and more powerfully operating, than any other check can be. For example,
Were a Bill to be brought into any of the American legislatures similar to that which was passed into an act by the English parliament, at the commencement of George the First, to extend the duration of the assemblies to a longer period than they now sit, the check is in the constitution, which in effect says, Thus far shalt thou go and no further.
But in order to remove the objection against a single house (that of acting with too quick an impulse), and at the same time to avoid the inconsistencies, in some cases absurdities, arising from two houses, the following method has been proposed as an improvement upon both.
First, To have but one representation.
Secondly, To divide that representation, by lot, into two or three parts.
Thirdly, That every proposed bill shall be first debated in those parts by succession, that they may become the hearers of each other, but without taking any vote. After which the whole representation to assemble for a general debate and determination by vote.
To this proposed improvement has been added another, for the purpose of keeping the representation in the state of constant renovation; which is, that one-third of the representation of each county, shall go out at the expiration of one year, and the number be replaced by new elections. Another third at the expiration of the second year replaced in like manner, and every third year to be a general election.*22
But in whatever manner the separate parts of a constitution may be arranged, there is one general principle that distinguishes freedom from slavery, which is, that all hereditary government over a people is to them a species of slavery, and representative government is freedom.
Considering government in the only light in which it should be considered, that of a National Association, it ought to be so constructed as not to be disordered by any accident happening among the parts; and, therefore, no extraordinary power, capable of producing such an effect, should be lodged in the hands of any individual. The death, sickness, absence or defection, of any one individual in a government, ought to be a matter of no more consequence, with respect to the nation, than if the same circumstance had taken place in a member of the English Parliament, or the French National Assembly.
Scarcely anything presents a more degrading character of national greatness, than its being thrown into confusion, by anything happening to or acted by any individual; and the ridiculousness of the scene is often increased by the natural insignificance of the person by whom it is occasioned. Were a government so constructed, that it could not go on unless a goose or a gander were present in the senate, the difficulties would be just as great and as real, on the flight or sickness of the goose, or the gander, as if it were called a King. We laugh at individuals for the silly difficulties they make to themselves, without perceiving that the greatest of all ridiculous things are acted in governments.*23
All the constitutions of America are on a plan that excludes the childish embarrassments which occur in monarchical countries. No suspension of government can there take place for a moment, from any circumstances whatever. The system of representation provides for everything, and is the only system in which nations and governments can always appear in their proper character.
As extraordinary power ought not to be lodged in the hands of any individual, so ought there to be no appropriations of public money to any person, beyond what his services in a state may be worth. It signifies not whether a man be called a president, a king, an emperor, a senator, or by any other name which propriety or folly may devise or arrogance assume; it is only a certain service he can perform in the state; and the service of any such individual in the routine of office, whether such office be called monarchical, presidential, senatorial, or by any other name or title, can never exceed the value of ten thousand pounds a year. All the great services that are done in the world are performed by volunteer characters, who accept nothing for them; but the routine of office is always regulated to such a general standard of abilities as to be within the compass of numbers in every country to perform, and therefore cannot merit very extraordinary recompense. Government, says Swift, is a Plain thing, and fitted to the capacity of many heads.
It is inhuman to talk of a million sterling a year, paid out of the public taxes of any country, for the support of any individual, whilst thousands who are forced to contribute thereto, are pining with want, and struggling with misery. Government does not consist in a contrast between prisons and palaces, between poverty and pomp; it is not instituted to rob the needy of his mite, and increase the wretchedness of the wretched.—But on this part of the subject I shall speak hereafter, and confine myself at present to political observations.
Musean translation
Mouseia’s complete machine-assisted Musean translation, made directly from the complete English text of Parts I and II with Paine’s preface, appendix and author’s notes (Conway’s edition, 1894) for fidelity, the author’s force and cadence, and modern clarity.
Government by precedent, without regard to the principle behind the precedent, is one of the vilest systems that can be established. In many instances a precedent should serve as a warning, not an example, and should be shunned rather than imitated. Instead, precedents are taken wholesale and made to stand at once for constitution and law.
Either the doctrine of precedents is a policy for keeping people ignorant, or it is a practical confession that wisdom declines as governments grow old, until they can only hobble along on the stilts and crutches of precedents. How can the same people who proudly claim to be wiser than their predecessors appear at the same time as mere ghosts of departed wisdom? How strangely antiquity is treated! For some purposes it is called an age of darkness and ignorance; for others it is presented as the light of the world.
If the doctrine of precedents is to prevail, the cost of government need not remain the same. Why pay extravagant sums to people with so little to do? If everything that can happen is already covered by precedent, legislation is finished, and precedent decides every case like a dictionary. Either government has become senile and needs renewal, or every occasion for exercising its wisdom has already occurred.
Across Europe, and especially in England, we now see the strange spectacle of a nation looking one way and its government the other: the nation forward, the government backward. If governments proceed by precedent while nations proceed by improvement, they must eventually separate altogether; and the sooner and more peacefully they settle the matter, the better.*20
Having spoken of constitutions in general as distinct from actual governments, let us now consider the parts that make up a constitution.
Opinions differ more about these parts than about the whole. That a nation should have a constitution to govern the conduct of its government is a simple proposition on which everyone not directly attached to a court will agree. Questions and opinions multiply only over its component parts.
But this difficulty, like any other, will diminish once it is properly understood.
The first point is that a nation has the right to establish a constitution.
Whether it uses that right with the best judgment at first is quite another matter. It exercises the right according to the judgment it possesses, and by continuing to exercise it, will eventually cast off every error.
Once this right is secured to a nation, there is no reason to fear that it will be used against its own interests. A nation has no interest in being wrong.
Although all the constitutions of America rest on one general principle, no two are precisely alike in their component parts or in how they distribute power to the governments they establish. Some are more complex, others less.
In framing a constitution, we must first ask: for what purposes is government necessary? Second, what are the best and least expensive means of achieving those purposes?
Government is nothing more than a national association, whose object is the good of all, individually and collectively. Everyone wishes to pursue an occupation and enjoy the fruits of labor and the yield of property in peace and safety, at the least possible cost. When these things are secured, all the purposes for which government should be established have been fulfilled.
It has been customary to divide government into three general branches: legislative, executive, and judicial.
But if we allow ourselves to think without the encumbrance of so many terms, we can discern only two divisions of power in civil government: the power to legislate, or enact laws, and the power to execute, or administer them. Everything pertaining to civil government therefore belongs to one or the other.
As far as the execution of the laws is concerned, what is called judicial power is, strictly and properly, the executive power of every country. It is the power to which each individual can appeal and which sees that the laws are carried out; we have no other clear conception of their official execution. In England, and likewise in America and France, this power begins with the magistrate and extends upward through all the courts.
I leave it to courtiers to explain what it means to call monarchy the executive power. Monarchy is merely a name under which acts of government are done; another name, or no name at all, would serve just as well. Laws gain neither more nor less authority from it. They must draw their support from the justice of their principles and the interest the nation takes in them; if they need support from any other source, something in the system of government is defective. Laws that are difficult to enforce cannot generally be good.
Different countries have adopted different ways to organize legislative power. In America it is generally composed of two houses. In France it has only one, but in both countries it rests entirely on representation.
The fact is that mankind, after so long a tyranny of usurped power, has had so few chances to make the trials of governmental forms and principles necessary to discover the best, that government is only now beginning to be understood; experience is still lacking on many details.
The first objection to two houses is that it is inconsistent for any part of a whole legislature to reach a final decision by vote on a matter while, for the legislature as a whole, that matter is still under deliberation and therefore open to new insights.
Second, voting in each house as a separate body always allows for the possibility—and in practice often brings it about—that a minority governs a majority, sometimes to a strikingly inconsistent degree.
Third, it is inconsistent for two houses to check or control each other arbitrarily, since no principle of fair representation can prove that either should be wiser or better than the other. They can obstruct what is right as easily as what is wrong; thus giving power without being able to give the wisdom to use it, or assurance that it will be rightly used, makes the danger at least equal to the safeguard.*21
The objection to a single house is that it is always liable to commit itself too soon. But we should also remember that a constitution defining legislative power and establishing the principles within which the legislature must act already provides a more effective and powerful check than any other. For example:
If any American legislature were presented with a bill like the one the English parliament passed into law at the beginning of George the First's reign, extending the assemblies' terms beyond their present duration, the check would lie in the constitution, which in effect says, “This far you may go and no farther.”
To meet the objection to a single house—its tendency to act on too sudden an impulse—while avoiding the inconsistencies and, in some cases, absurdities of two houses, the following improvement on both has been proposed.
First, there should be only one representative body.
Second, that body should be divided by lot into two or three parts.
Third, each proposed bill should first be debated in these parts in succession, so that they can hear one another, but without a vote. Then the whole representative body should assemble for a general debate and a decision by vote.
Another improvement has been added to the proposal to keep representation in a state of constant renewal: one-third of each county's representatives should leave office after one year and be replaced by new elections. Another third should leave after the second year and be replaced in the same manner, and every third year there should be a general election.*22
But however the separate parts of a constitution may be arranged, one general principle distinguishes freedom from slavery: all hereditary government over a people is a form of slavery for them, while representative government is freedom.
When government is viewed as it should be, as a National Association, it should be constructed so that no event affecting one of its parts can throw it into disorder. No extraordinary power capable of doing so should therefore be placed in the hands of any one person. The death, illness, absence, or defection of any individual in a government should matter no more to the nation than the same event affecting a member of the English Parliament or the French National Assembly.
Few spectacles so diminish the appearance of national greatness as a nation thrown into confusion by something that happens to, or is done by, one individual; the natural insignificance of the person responsible often makes the scene more ridiculous. If a government were so constructed that it could not proceed unless a goose or a gander were present in the senate, the departure or illness of that goose or gander would cause difficulties just as great and real as if it were called a King. We laugh at individuals for the foolish difficulties they make for themselves, not noticing that governments perform the most ridiculous acts of all.*23
All the constitutions of America follow a plan that excludes the childish embarrassments found in monarchical countries. No circumstances whatever can suspend government there for even a moment. Representation provides for everything and is the only system in which nations and governments can always appear in their proper character.
Just as extraordinary power should not be placed in any individual's hands, public money should not be allotted to anyone beyond the value of that person's service to the state. It makes no difference whether a man is called president, king, emperor, senator, or given any other name that propriety or folly devises or arrogance claims. He can perform only a certain service for the state; and the service of any such individual in the routine of office, whether that office is called monarchical, presidential, senatorial, or something else, can never be worth more than ten thousand pounds a year. All the great services performed in the world are done by volunteers who accept nothing for them; but routine public office is always pitched at a level of ability within the reach of many people in every country, and therefore cannot deserve extraordinary compensation. Government, says Swift, is a plain thing, suited to the abilities of many minds.
It is inhuman to speak of a million sterling a year, taken from a country's public taxes to support one individual, while thousands forced to contribute to it languish in want and struggle with misery. Government is not a contrast between prisons and palaces, between poverty and pomp; it was not instituted to rob the needy of their last coin and deepen the suffering of those already wretched. But I will return to this aspect of the subject later, and for now confine myself to political observations.
Plain English translation
Mouseia’s complete Plain English edition, made independently and directly from the complete English text of Parts I and II with Paine’s preface, appendix and author’s notes (Conway’s edition, 1894).
Governing by precedent without considering the principle behind it is one of the worst systems possible. In many cases a precedent should be a warning, not an example. We should avoid it rather than copy it. Instead, precedents are accepted in a heap and made to stand for both constitution and law.
Either the doctrine of precedent is a policy for keeping people ignorant, or it admits that governments grow less wise as they grow older and can only limp along on the crutches of precedent. How can people who proudly claim to be wiser than their predecessors act like mere ghosts of wisdom that has died? They treat the past in strangely opposite ways. For one purpose, they call it an age of darkness and ignorance. For another, they present it as the world's guiding light.
If we follow precedent, the costs of government need not stay as they are. Why pay enormous salaries to people with so little to do? If precedent already covers everything that can happen, there is no more need to make laws. Precedent, like a dictionary, can settle every case. Either the government has grown senile and needs rebuilding, or every situation calling for its wisdom has already occurred.
Across Europe, and especially in England, we now see the strange sight of a nation looking one way and its government looking the other. The people look forward; the government looks backward. If governments follow precedent while nations make progress, they will eventually separate completely. The sooner they settle this question, and the more peacefully they do so, the better.*20
I have discussed constitutions in general as something separate from the governments now in office. Let us next consider their parts.
People disagree more about those parts than about constitutions as a whole. Everyone who is not directly serving a royal court will agree that a nation should have a constitution to set the rules for its government. Disputes multiply only when we discuss what it should contain.
But this difficulty, like any other, will shrink once we understand the question properly.
The first point is that a nation has the right to establish a constitution.
Whether it uses that right wisely at first is a different question. It acts according to the judgment it has. As it continues to exercise the right, it will eventually correct its mistakes.
Once a nation has this right, we need not fear that it will use the right to harm itself. A nation has no interest in being wrong.
All the American constitutions follow the same general principle. But no two have exactly the same parts or give exactly the same powers to their governments. Some are more complicated than others.
When making a constitution, we must ask two questions. First, what purposes require a government? Second, what are the best and least costly ways to achieve those purposes?
A government is simply an association of the whole nation. Its purpose is the good of everyone, both as individuals and together. Everyone wants to carry on their work and enjoy what their labor and property produce, in peace and safety, at the lowest possible cost. When that is achieved, government has fulfilled every purpose for which it should exist.
It is customary to divide government into three broad branches: legislative, executive, and judicial.
But if we put aside our habit of using too many terms, we can see only two kinds of power in civil government. One is making laws. The other is carrying them out. Everything in civil government belongs to one of these two kinds.
When it comes to carrying out laws, the so-called judicial power is, strictly speaking, the executive power of every country. Individuals can appeal to it, and it makes sure the laws are carried out. We have no other clear idea of what it means for officials to execute laws. In England, America, and France, this power begins with magistrates and runs through all the courts.
I leave it to courtiers to explain why they call monarchy the executive power. The monarch is merely a name under which government actions are taken. Another name, or none, would serve just as well. The laws gain no more or less authority from it. They must draw their support from fair principles and the nation's interest in them. If laws need some other kind of support, there is a flaw in the system of government. Laws that are hard to enforce generally cannot be good laws.
Different countries arrange their lawmaking power differently. In America it generally has two houses. In France it has only one. In both countries, however, its members are all representatives.
The trouble is that long-standing tyranny by people who seized power has given humanity few chances to test ways of governing and find the best principles and methods. We are only beginning to understand government. We still lack the experience to settle many details.
The first objection to two houses is this: one part of a legislature votes and makes a final decision on a question while the full legislature is still debating it. New arguments may yet change how the whole legislature understands the question.
The second objection is that separate votes in each house make it possible for a minority to rule a majority. This often happens in practice, sometimes with highly contradictory results.
Third, it makes no sense for two houses to check or control each other at will. Fair representation gives us no reason to think either house will be wiser or better than the other. One can block what is right as easily as what is wrong. Giving a house that power without giving it the wisdom to use the power, or any assurance it will use the power rightly, makes the danger at least as great as the protection.*21
The objection to a single house is that it may act too quickly. But remember that a constitution defines a legislature's powers and the principles it must follow. That constitution already provides a stronger and more effective check than any other. For example:
Suppose someone introduced a bill into an American legislature like the one the English Parliament passed into law at the beginning of George the First's reign. That law extended the time assemblies could remain in office beyond their previous term. In America the constitution would stop such a bill. In effect, it would say, “You may go this far and no further.”
Still, a single house could act too hastily. To address that objection while avoiding the inconsistencies, and sometimes absurd results, of two houses, the following improvement has been proposed.
First, have only one elected body of representatives.
Second, divide that body by lot into two or three groups.
Third, let each group debate every proposed bill in turn and listen to the others, without voting. Then bring the entire body together for a general debate and a final vote.
A further improvement has been proposed to keep the body of representatives constantly refreshed. One-third of each county's representatives would leave after one year, and elections would replace them. Another third would leave and be replaced after the second year. Every third year there would be a general election.*22
However a constitution arranges its parts, one general principle separates freedom from slavery. Any government inherited by rulers over a people is a kind of slavery for that people. Representative government is freedom.
Government should be seen as an association of the nation, and nothing else. It should therefore be built to keep working if anything happens to one of its parts. No individual should have extraordinary power that would let such an event disrupt it. For the nation, the death, illness, absence, or desertion of any government official should matter no more than if the same thing happened to a member of the English Parliament or the French National Assembly.
Few things make a great nation look more degraded than being thrown into confusion by something that one person does or that happens to that person. The scene is even more ridiculous when that person is insignificant. Imagine a government unable to function unless a goose or gander was present in the senate. If it flew away or got sick, the problem would be just as real and serious as if it had been called a King. We laugh at people who create foolish problems for themselves, without seeing that governments do even more ridiculous things.*23
The American constitutions are designed to prevent the childish disruptions common in monarchies. No event of any kind can stop their governments from functioning, even for a moment. Representation makes provision for everything. It is the only system in which nations and governments can always act as they should.
Just as no individual should hold extraordinary power, no one should receive more public money than their service to the state is worth. A person may be called president, king, emperor, senator, or any other title invented sensibly, foolishly, or arrogantly. That person can still provide only a certain amount of service. Ordinary work in any such office, whether called monarchical, presidential, senatorial, or something else, can never be worth more than ten thousand pounds a year. The world's great services are performed by volunteers who take nothing for them. Ordinary official work, however, is set at a level of ability that many people in every country possess. It therefore cannot deserve an extraordinary reward. As Swift says, government is a plain thing, within the ability of many people.
It is inhuman to speak of paying one person a million sterling a year from a country's taxes while thousands who must help pay it are going hungry and struggling in misery. Government does not mean setting prisons against palaces, or poverty against luxury. It is not created to take a poor person's last coin and make the miserable more miserable. I will return to this issue later. For now I will stick to political observations.