CHAPTER XIV.

SUPREMACY OF THE LAW. TAXATION.

DIVISION OF POWER.

19. THE supremacy of the law, in the sense in which it has already been mentioned, or the protection against the absolutism of one, of several, or the people, (which, practically, and for common transactions, means of course, the majority,) requires other guarantees or checks of great importance.

It is necessary that the public funds be under close and efficient popular control, chiefly, therefore, under the supervision of the popular branch of the legislature, which is likewise the most important branch in granting the supplies, and the one in which, according to the English and American fundamental laws, all money bills must originate. The English are so jealous of this principle, that the commons will not even allow the lords to propose amendments affecting money grants or taxation.1

If the power over the public treasury, and that of imposing taxes, be left to the executive, there is an end to public liberty. Hampden knew it when he made the trifling sum of a pound of unlawfully imposed ship-money a great national issue, and our Declaration of Independence enumerates, as one of the gravest grievances against the mother country, that England "has imposed taxes without our consent."

One of the most serious mistakes of those who are not versed in liberty is to imagine that liberty consists in withhold

1 While these sheets were passing through the press, (March, 1859,) the house of representatives, at Washington, refused to consider certain amendments, passed in the senate, for the purpose of raising the postage on letters, the house declaring by resolution that these amendments interfered with the constitutional and exclusive right of the house to originate bills affecting the revenue.

crevasse.

ing the necessary power from government. Liberty is not of a negative character. It does not consist in merely denying power to government. Government must have power to perform its functions, and if no provision is made for an orderly and organic grant of power, it will, in cases of necessity, arrogate it. A liberty thus merely hedging in, would resemble embankments of our Mississippi, without an outlet for freshets. No one believes that there would be sufficient time to repair the This applies to all subjects of government, and especially to appropriations of money. Merely denying money to government, or, still worse, not creating a proper organism for granting it, must lead either to inanity or to executive plundering; but it is equally true that the strictest possible limitation and hedging in by law, of the money grants, are as requisite for the cause of liberty as the avoidance of the error I have just pointed out. This subject is well treated in our "Federalist," and the insufficiency of our ancient articles of confederation was one of the prominent causes which led our forefathers to the adoption of the federal constitution. Lord Nugent truly calls the power of granting or refusing supplies, vested in parliament, but especially in the house of commons, or, as he says, "the entire and independent control of parlia ment over the supplies," "the stoutest buttress of the English constitution."2

It is the Anglican rule to make but short appropriations, and to make appropriations for distinct purposes. We insist still more on this principle than the English, and justly demand that appropriations be made as distinct and specific as possible, and that no transfer of appropriations by the executive take place; that is to say, that the executive be not authorized to use a certain appropriation, if not wholly spent, partially for purposes for which another appropriated sum has proved to be insufficient. It is not only necessary for vigorous civil liberty that the legislature, and chiefly the popu

1 66

Federalist," No. xxx. and sequel, Concerning Taxation, and other parts of that sage book.

2 "Memorials of John Hampden," vol. i. p. 212; London, 1832.

lar branch of it, keep the purse-strings of the public treasury; but also that the same principle be acted upon in all minor circles of the vast public fabric. The money of the people must be under the control of the trustees of the people, and not at the disposal of officials unconnected with the people, or at the disposal of an irresponsible multitude, which, itself without property, readily countenances those malappropriations of money which we meet with in every democratic absolutism, from the later times of Athens to the worst-governed large cities of our own country.

The French imperial constitution decrees, indeed, that the budgets of the different ministers must be voted by the deputies, but they must be voted each as a whole; no amendments can be made either in the sums thus voted in the lump, or in anything else proposed by the government, the government alone having the initiative. All the deputies can do is to send back a bill to the government, with remarks. The French provision, therefore, is founded on a principle the very opposite to that which we consider essential regarding money appropriations.

The history of the control over the public funds, in granting, specifying and spending them, may well be said to be a continuous index of the growth of English liberty. It is this principle which has essentially aided in establishing self-government in England; and which has made the house of commons the real seat of the national government as we now find it. Every one knows that the "supplies" are the means by which the English effect in a regular and easy way that which the Roman populus occasionally and not regularly effected against the senate, by a refusal to enlist in the army when war was at the gates of the city.'

If

1 Chatham, when minister of the crown in 1759, and while Lord Clive was making his great conquests in the East, said that neither the East India Company nor the crown ought to have that immense revenue. the latter had it, it would endanger all liberty. Chatham's Correspondence, vol. i. In the year 1858, however, the government of the East Indies was taken from the company and given to the crown. It would

The history of the British civil list, or the personal revenue granted to the monarch at the beginning of his reign, is also instructive in regard to this subject. In the middle ages the monarch was the chief nobleman, and had, like every other nobleman, his domains, from which he drew his revenue. Taxes were considered extraordinary gifts. As the monarch, however, wanted more money, either for just or unjust purposes, loans were made, which were never redeemed. Mr. Francis correctly observes, that it is absurd to charge William III. with having created a public debt, as Hume and so many others have done. William III., on the contrary, was the first monarch who treated loans really as loans, and provided either for their repayment or the payment of interest.1

As civil liberty advanced, all revenue of the monarch, independent of the people, was more and more withdrawn from him, and crown domains were more and more made public domains, until we see George III. giving up all extra-parliamentary revenue. The monarch was made dependent on the civil list exclusively.

20. It is further necessary that the power of making war essentially reside with the people, and not with the executive. In England, it is true, the privilege of making war and concluding peace is called a royal prerogative, but as no war can be carried on without the nervus rerum gerendarum, it is the commons who decide whether the war shall be carried on or not. They can grant or decline the authority of enlisting men, and the money to support them and to provide for the war. The Constitution of the United States decrees that congress shall have power to make war,2 and an American declaration

seem that the commons felt so secure, in the middle of the nineteenth century, that they did not fear to have that vast eastern empire ruled over, theoretically, by the monarch, in reality, by a minister responsible to parliament.

1 Francis, Chronicles and Characters of the Stock Exchange.

It may as well be observed here that congress means the senate and house of representatives.. The president is not included in the term. Parliament, on the other hand, means commons, lords, and king. Practically speaking, the difference is not great; for, the president has

of war must be passed by congress, like any other law. A declaration of war by the United States is a law.

Where the executive has not only the nominal, but the real power of declaring war, we cannot speak of civil liberty or of self-government; for that which most essentially affects the people in all their relations, is in that case beyond their con- / trol. Even with the best contrived safeguards, and a deeply rooted tradition, it seems impossible to guard against occasional high-handed assumption of power by the executive in this particular. Whatever our late Mexican war ultimately became in its character, there is probably now no person who will deny that, in its beginning, it was what is called a cabinet war. It was commenced by the cabinet, which, after hostilities had begun, called on congress to ratify its measures.

It has already been stated (paragraph 13) that a perfect dependence of the forces npon the civil power is an indispensable requisite and element of civil liberty.

21. The supremacy of the law and that unstinted protection of the individual as well as of society, in which civil liberty essentially consists, require on the one hand the fullest possible protection of the minority, and, on the other hand, the security of the majority that no factious minority or cabal shall rule over it.

The protection of the minority leads to that great institution, as it has been boldly but not inappropriately called-the opposition. A well organized and fully protected opposition, in and out of the legislature—a loyal opposition, by which is meant a party which opposes, on principle, the administration or the set of men who have, for the time being, the government in their hands, but does so under and within the common fundamental law, is so important an element of civil liberty, whether considered as a protecting fence or as a creative

the veto power, of which he makes occasional use, while the King of England has not made any use of it for about a century. The English administration would resign before it would become necessary in their eyes to veto a bill. But the King of England has the greatest of all veto powers-he can dissolve parliament, which our executive cannot do.