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Article 1, Section 9, Clause 8



Document 12

St. George Tucker, Blackstone's Commentaries 1:App. 216--22, 295--96

1803

1. As to the necessity of a distinct order of men in a state, with exclusive privileges annexed to the individual capacity, the author of the commentaries observes, "That the distinction of rank and honours is necessary in every well governed state, in order to reward such as are eminent for their public services, in a manner the most desirable to individuals, and yet without burthen to the community; exciting thereby an ambitious, yet laudable ardor, and generous emulation, in others. A spring of action, which however dangerous or invidious in a mere republic, will certainly be attended with good effects under a monarchy. And since titles of nobility are thus expedient in the state, it is also expedient that their owners should form an independent and separate branch of the legislature. If they were confounded with the mass of the people, and like them only had a vote in electing representatives their privileges would soon be borne down and overwhelmed by the popular torrent, which would effectually level all distinctions."

The conclusion which evidently arises from the former part of this quotation, "that no mere republic can ever be a well governed state," inasmuch as honours and titles, the necessity of which, is here so pointedly urged, are dangerous and invidious in such a government, may be proved to be false, both from reasoning and example. But it will be time enough to controvert our author's conclusion, when the truth of the principle upon which it is founded is established. The British constitution, with him, is somewhat like the bed of Procrustes; principles must be limited, extended, narrowed, or enlarged, to fit it. If they are not susceptible of so convenient a modification, they are to be wholly rejected. . . . But to return:

The vital principle of mixt governments is the distinction of orders, possessing, both collectively and individually, different rights, privileges or prerogatives. In an absolute monarchy, a confirmed aristocracy, or a pure democracy, this distinction cannot be found. There being no distinction of orders, there can be no contention about rights, in either of these forms of government, so long as the government remains in the full vigour of its constitution. When either of these three forms of government departs from its intrinsic nature, unless it assumes one of the other instead thereof, it becomes a mixt government. . . . And this mixture may consist in the combination of monarchy with aristocracy, as in Poland; or with democracy, as in France, under it's late constitution, as modelled by the national assembly, and ratified by the king; or, in the blending of the aristocratic and democratic forms, as was the case with the Roman republic after the establishment of the tribunes; or of all three, as in the British constitution. The existence of either of these combinations are said to form the constitution of the state, in all the governments of the world, except those of America, and France under it's late constitution; in these the constitution creates the powers that exist: In all others, the existing powers determine the nature of the constitution. To preserve those existing powers in their full tone and vigour, respectively, it may be necessary that each should possess an independent share in the supreme legislature, for the reasons assigned by the author of the commentaries; but this no more proves the necessity of the order, in a well governed state, than the necessity of wings to the human body would be proved, by a critical dissertation, on the structure, size, and position, of those of the fabulous deities of antiquity.

Our author considers those rewards which constitute a separate order of men, as attended with no burthen to the community; nothing can be more false than such a supposition. If the distinction be personal, only, it must be created at the expence of the personal degradation of the rest of the community, during the life of the distinguished person. If hereditary, this degradation is entailed upon the people: personal distinctions cannot be supported without power, or without wealth; these are the true supporters of the arms of nobility; take them away, the shield falls to the ground, and the pageantry of heraldry is trodden under foot. What character is less respected in England, than a poor Scotch lord, who is not one of the sixteen peers of that kingdom? That lord in his own clan, possesses comparative wealth and power sufficient among his humble dependents, to be looked up to as a Craesus in wealth, and a Caesar in authority.

"A titled nobility," says a late distinguished English writer [Mackintosh], "is the most undisputed progeny of feudal barbarism. Titles had in all nations denoted offices; it was reserved for Gothic Europe, to attach them to ranks. Yet this conduct admits explanation, for with them offices were hereditary, and hence the titles denoting them became hereditary too. These distinctions only serve to unfit the nobility for obedience, and the people for freedom; to keep alive the discontent of the one and to perpetuate the servility of the other; to deprive the one of the moderation that sinks them into citizens, and to rob the other of the spirit that exalts them into freemen. The possession of honours by the multitude, who have inherited, but not acquired them, engrosses and depreciates these incentives and rewards of virtue." If these are the genuine fruits of that laudable ardour, and generous emulation, which give life and vigour to the community, and sets all the wheels of government in motion, heaven protect those whom it encounters in it's progress.

But is there no stimulous to that laudable ardour and generous emulation which the commentator speaks of, to be found in a pure democracy, which may compensate for the absence of ranks and honors? Yes. Virtue; that principle which actuated the Bruti, a Camillus, and a Cato in the Roman republic, a Timoleon, an Aristides, and an Epaminondas among the Greeks, with thousands of their fellow citizens whose names are scarcely yet lost in the wreck of time. That principle whose operation we have seen in our own days and in our own country, and of which, examples will be quoted by posterity so long as the remembrance of American liberty shall continue among men. . . . "Virtue," says Montesquieu, "in a republic is a most simple thing; it is a love of the republic. Love of the republic in a democracy is a love of the democracy: love of the democracy is that of equality. The love of equality in a democracy limits ambition to the sole desire, to the sole happiness, of doing greater services to our own country than the rest of our fellow citizens. . . . But all cannot render equal services: hence distinctions arise here from the principle of equality, even when it seems to be removed, by signal services, or superior abilities."

This distinction, the only one which is reconcileable to the genius and principle of a pure republic, is, if we may reason from effect to cause, the most powerful incentive to good government that can animate the human heart, with this advantage over those hereditary honors for which the commentator is so zealous an advocate, that the ambition excited by the former must of necessity be directed to the public good, whilst the latter springing from self love, alone, may exist in the breast of a Caesar or a Cataline. A Franklin, or a Washington, need not the pageantry of honours, the glare of titles, nor the pre-eminence of station to distinguish them. Their heads like the mountain pine are seen above the surrounding trees of the forest, but their roots engross not a larger portion of the soil.

Equality of rights, in like manner, precludes not that distinction which superiority in virtue introduces among the citizens of a republic. Washington in retirement was equal, and only equal, in rights, to the poorest citizen of the state. Yet in the midst of that retirement the elevation of his character was superior to that of any prince in the universe, and the lustre of it far transcended the brightest diadem.

But even where it conceded that distinctions of rank and honours were necessary to good government, it would by no means follow that they should be hereditary; the same laudable ardour which leads to the acquisition of honor, is not necessary to the preservation of its badges; and these are all which it's hereditary possessors, in general, regard. Had nature in her operations shewn that the same vigour of mind and activity of virtue which manifests itself in a father, descends unimpaired to his son, and from him to latest posterity, in the same order of succession, that his estate may be limited to, some appearance of reason in favour of hereditary rank and honors might have been offered. But nature in every place, and in every age, has contradicted, and still contradicts this theory. The sons of Junius Brutus were traitors to the republic; the emperor Commodus was the son of Antoninus the philosopher; and Domitian was at once the son of Vespasian, and the brother of Titus.

If what has been said be a sufficient answer to the necessity of the distinction of ranks and honours to the well government of a state, the commentator himself hath afforded an unanswerable argument against their expedience in a republic, by acknowledging them to be both dangerous and invidious in such a government. And herewith agrees the author of the Spirit of Laws, who informs us, that the principle of a democracy is corrupted, when the spirit of equality is extinct. The same admirable writer gives us a further reason why so heterogeneous a mixture ought not to have a place in any government where the freedom and happiness of the people is thought an object worthy the attention of the government. "A nobility," says he, "think it an honour to obey a king, but consider it as the lowest infamy to share the power with the people."

We are indebted to the same author, for the following distinguished features of aristocracy: "If the reigning families observe the laws, aristocracy is a monarchy with several monarchs: but when they do not observe them, it is a despotic state governed by a great many despotic princes. In this case, the republic consists only in respect to the nobles, and among them only. It is in the governing body; and the despotic state is in the body governed. The extremity of corruption is when the power of the nobles becomes hereditary; they can hardly then have any moderation." Such is the picture of that order of men who are elevated above the people by the distinctions of rank and honours. When the subjects of a monarchy, they are the pillars of the throne, as the commentator stiles them; or, according to Montesquieu, the tools of the monarch. . . . When rulers, as in an aristocracy, they are the despots of the people. . . . In a mixed government, they are the political Janizaries of the state, supporting and insulting the throne by turns, but still threatening and enslaving the people.

In America the senate are not a distinct order of individuals, but, the second branch of the national legislature, taken collectively. They have no privileges, but such as are common to the members of the house of representatives, and of the several state legislatures: we have seen that these privileges extend only to an exemption from personal arrests, in certain cases, and that it is utterly lost, in cases of treason, felony, or breach of the peace. They are more properly the privileges of the constituents, than of the members, since it is possible that a state might have no representative, and the United States no legislature, if the members might be restrained from attending their duty, by process issued at the suit of a creditor, or other person who might suppose he had cause of action against them. In England the privileges of the peerage are in some instances an insult to the morals of the people, the honour of a peer, on several occasions, being equipollent with the oath of a commoner. The exemption from personal arrests in civil cases is extended as well to his servant, as to the lord of parliament; to the injury of creditors, and the no small encouragement of fraud and knavery. And the statutes of scandalum magnatum hang in terrorem over the heads of those who dare to scrutinize, or to question the reality of those superior endowments which the law ascribes, to the immaculate character of a peer or peeress of the realm. Happy for America that her constitution and the genius of her people, equally secure her against the introduction of such a pernicious and destructive class of men.

. . . . .

The first of these prohibitions was indispensably necessary to preserve the several states in their democratic form, tone, and vigour. Distinctions between the citizens of the same state, are utterly incompatible with the principles of such governments. Their admission, therefore, can not be too cautiously guarded against: and their total exclusion seems to be the only mode by which this caution can operated effectually. We have already noticed, that the several acts passed for establishing an uniform rule of naturalization, require of every alien becoming a citizen, of the United States, an absolute renunciation, on oath, of any title of nobility, which he might have borne under any other prince or state. Without this wise provision, this clause of the constitution might have failed of some of those salutary effects which it was intended to produce. The second prohibition is not less important. Corruption is too subtle a poison to be approached, without injury. Nothing can be more dangerous to any state, than influence from without, because it must be invariably bottomed upon corruption within. Presents, pensions, titles and offices are alluring things. In the reign of Charles the second of England, that prince, and almost all his officers of state were either actual pensioners of the court of France, or supposed to be under its influence, directly, or indirectly, from that cause. The reign of that monarch has been, accordingly, proverbially disgraceful to his memory. The economy which ought to prevail in republican governments, with respects to salaries and other emoluments of office, might encourage the offer of presents from abroad, if the constitution and laws did not reprobate their acceptance. Congress, with great propriety, refused their assent to one of their ministers to a foreign court, accepting, what was called the usual presents, upon taking his leave: a precedent which we may reasonably hope will be remembered by all future ministers, and ensure a proper respect to this clause of the constitution, which on a former occasion is said to have been overlooked.


The Founders' Constitution
Volume 3, Article 1, Section 9, Clause 8, Document 12
http://press-pubs.uchicago.edu/founders/documents/a1_9_8s12.html
The University of Chicago Press

Tucker, St. George. Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. 5 vols. Philadelphia, 1803. Reprint. South Hackensack, N.J.: Rothman Reprints, 1969.

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