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Constitutional Government

CHAPTER 17|Document 15

James Burgh, Political Disquisitions 1:221--23, 226--27

No set of men empowered only to make laws, can, without an express commission from the people, alter the constitution, because it is only upon the principles of the constitution, that they had their power entrusted to them; and the principles of the constitution will never bear them out in overthrowing the constitution. The people, whose original and inherent power established the constitution, may change the constitution, or empower a set of men to change it.

Writers, on the side of this assumed boundless parliamentary privilege, by accustoming themselves to think of the house of commons as the representative of the people, fall into the mistake, that whatever is right for the one is right for the other likewise, and that whatever the people's power reaches to, is likewise within the reach of the assembly of representatives. And this is, generally speaking, true. But there is a distinction to be made. The people have certain incommunicable powers, which their representatives can upon no occasion challenge to themselves. The people alone can elect representatives. The whole body of representatives have not in themselves the power to take into, to exclude, or to expel from their house one single member, otherwise than according to notorious and stated laws made by the whole legislative power, and assented to by the people. This may be explained by comparing it with the king's power of commissioning embassadors for foreign courts; which power is incommunicably inherent in him, in such manner, that all the embassadors employed by the king cannot by any power of their own send an embassador to, or dismiss, or expel one from the most inconsiderable court. Yet every embassador, when furnished with his credentials, has the power of representing the king his master's person at the court to which he is sent, in all those matters and things which enter into the function of an embassador. Again, the people alone have the power of determining for how long a period they will continue their representatives in office. The assembly of representatives have not power to continue their own authority one day beyond the time, for which they were elected. If they have, they may, at any time, erect themselves into peers, and insist on keeping their seats for life. Again, an assembly of representatives have no power to assume to themselves any unprecedented privilege; but the people have power to confer on their representatives what privileges they please, to limit them as they please, and even to new-model the whole government.

In the case of a court of directors, established by a trading company, it is universally understood, that the directors, when once established by the proprietors, have power to do whatever the proprietors could do for the common advantage of the company, this power being still left to the explication and limitation of the proprietors. But, when a director dies, or resigns, the court of directors cannot put another in his place. This is the incommunicable privilege of the proprietors. Nor can the directors lengthen, beyond the intention of their constituents, the time for which they were appointed. Nor can they assume to themselves any one power or privilege, different from those given them by the proprietors. Nor can they refuse a duly elected director, nor take in one of their own chusing, nor expel one chosen by the proprietors, otherwise than according to the laws of the company, and the powers originally reposed in them. Nor can they alter any thing fundamental in the constitution of the company; but the proprietors can; so far as to the total dissolution of the incorporate body. Therefore, when Mr. Prynne was threatened by Sir H. Vane, and Sir A. Haselrig, to be voted out of the house of commons, A. D. 1659, he answered, "He knew of no one in the house who had a right to vote him out, being equally entrusted [Volume 1, Page 635] with themselves for the whole nation, and those he represented."

. . . . .

Judge Blackstone, in his account of the unknown and unlimited power and privileges of parliament, seems to forget, that the safety of the people limits all free governments. It is true that the people of England, not being accustomed, till lately, to apprehend danger from any quarter, but the throne (tyranny having been an old trick among kings from Nimrod's time down) have all along encouraged and supported their parliaments in extending their power, as the only sure bulwark against regal encroachments. But latter ages have taught us the necessity of looking out for security against parliamentary encroachments. And, the method is not by lessening the power of parliament, but by lessening the power of the court over the parliament. For a parliament is not (as a king) naturally hostile to liberty. If ever a parliament comes to oppose, or injure the people, it must be in consequence of an unnatural influence acting in it. Therefore our modern male-contents seem to be in a wrong pursuit. To retrench the power of their representatives, would be lessening their own power. To break through the corrupt influence of the court over their representatives, would be making them truly their representatives. Take away court-influence, and the 558 will of course pursue the interest of their country, as any other set of gentlemen would do, because their own will be involved in it, when they have no places or pensions to indemnify them. At the same time it cannot be denied, that for a house of commons, though ever so incorrupt and uninfluenced by the court, to be ever grasping at new privileges, and assuming new powers, descending from the dignity of representatives of the majesty of the people of Britain, taking upon themselves the office of the justices, prosecuting, imprisoning, and fining, a set of printers and booksellers, depriving the subject of his trial by jury, and employing their time in hunting out small offenders, while they should be battling the gigantic enemies of liberty and virtue, and planning measures for making unborn millions happy; it cannot be denied, I say, that such proceedings as these are infinitely beneath the attention of a house of commons, though it should be granted, that the power of the house of commons, being the power of the people, ought not to be limited. All things are lawful for them; but all things are not expedient. The truth of the matter is, That if our houses of commons had kept to their proper sphere, we should never have seen any libels against them, nor any occasion for prosecuting, imprisoning, and fining; or if there had, the courts of king's bench and common pleas were open.

The Founders' Constitution
Volume 1, Chapter 17, Document 15
http://press-pubs.uchicago.edu/founders/documents/v1ch17s15.html
The University of Chicago Press

[Burgh, James.] Political Disquisitions: or, An Enquiry into Public Errors, Defects, and Abuses. . . . 3 vols. London, 1774--75.