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officers are to receive their compensations at stated periods, the intention of which is that services shall not be paid for before they are performed; but no such restriction is imposed on the members of the legislature, because it is presumed that they will not violate a principle so just, and also, because from the uncertain duration of their sessions, no stated period can be fixed.
The military power is also in this respect to be distinguished from other executive offices; liable to be employed in various places where it may be difficult or impossible to be regularly supplied with the means of discharging their pay, it would be impolitic to entitle them to demand it at certain periods. Their compensations cannot be diminished during the time for which they are engaged, because it would be a breach of the contract; they may be increased, because the public safety would not be endangered by it. Fortuitous additions, tending to stimulate their exertions are allowed: an army is entitled to share in some parts of what is taken from the enemy, which, according to the laws of war, become the property of the captors. A rule, however, which in modern practice is rather specious than profitable, for it is rarely enforced; but to the navy, the same principle is often productive of great emolument ; a discrimination having been long established between maritime captures and those on shore, on a foundation not perceptibly just. The property of peaceable and private individuals on the land is seldom considered, in modern times, as a just subject of confiscation, although the owners are inhabitants of a hostile country, but at sea, the merchant vessel, unarmed and unoffending, is the lawful prey of the commissioned cruizer, and is condemned to his use, on being captured and brought into the ports of his country. The amount of these additional compensations is from time to time regulated by congress.
The appropriation for the support of the army and navy can be made only by congress, and in respect to the army, as has been already observed, for no longer time than two years. This may at first view appear inconsistent with the practice of enlisting soldiers for a longer time, but when we take a view of the whole political system and recollect that this limitation has been adopted as a suitable check upon the possible ill use of a regular army, we must allow a predominant operation to the greater principle. The military contracts must be construed, in all cases, as subject to the constitutional restriction, which must be considered as a proviso introduced into every law that authorizes the president to raise an army.
To disband an army entirely must be a legislative act. To dismiss any or all of the officers is, by the tenure of their commissions, within the power of the president. It is the practice in many countries when an army is reduced, to allow to the officers whose active services are no longer required, half the amount of their pay during life. Such compensations with us depend on the judgment of congress, and from that quarter also must proceed those charitable provisions which seem fairly due to the disabled and infirm soldier who has faithfully served his country.
A recent instance has proved that the charge of ingratitude cannot always be justly preferred against a republic.
Invited to revisit a country, to which in early life he had rendered splendid and successful service; the heroism of General La Fayette has been rewarded, not merely by unbounded effusions of the public mind, but with a pecuniary compensation equally honourable to the donors as to the receiver.
Of Incompatible Offices.
TWO offices may be so incompatible in their nature, that the same person shall not be admitted to hold them both. The constitution in this respect is not altogether silent, and we shall endeavour to show the justness of the principles on which it proceeds. It is a rule of general law, that an officer who accepts another appointment inconsistent with the first, is held to have thereby resigned the first. (80) If the marshal of one of the districts were to be appointed judge of that district, it would virtually vacate the office of marshal. If a member of the house of representatives accepted an appointment as senator, he would cease to be a member of the house of representatives. But a man may hold two or more offices, if they are not incompatible in their nature, (81) and therefore there would seem no reason, other than general policy, for excluding some of the executive officers, below the president, from seats in either house, or to prevent an individual from holding at the same time the office of secretary of state and of the treasury, or any similar offices. But although no reasons, merely of a legal nature, might be opposed to it, the impolicy of admitting such officers to compose a part of the legislature is exceedingly plain.
We must once more recur to England, and examine
(80) 2 Rolle's Reports, 452. Brooke's ab. Commissions, 25. 3 Burr, 616. 2 Durn. and East. 85.
(81) 4 Serg. & Rawle, 275.
the effects of their practice in this respect. The great officers of the crown, unless they are members of the other house, are eligible as members of the house of commons. The whole administration partakes in one or the other of the houses, of the legislative power. There is no doubt that some benefit is derived from it, in the facility of obtaining information in regard to public measures, and the inquiries of other members on such subjects, are usually answered with great courtesy; but this small advantage is counterbalanced by the influence they possess there, and by the total subversion of one of the chief pillars, on which the importance and value of the house of commons have always been asserted to rest.
Every panegyrist of the British constitution delights to draw a perspective view of the house of commons as keeper of the purse of the nation; regulating its expenses and withholding supplies from the crown, except on such terms as the good of the people may require. But nothing is at present more remote from the fact. The whole scheme of taxation; the amount to be raised; the subjects to be taxed, and the objects to which the product is to be applied, are laid before them by the ministers of the crown; not indeed in that capacity, but in the professed quality of members of the house, and perhaps since the restoration of Charles II. certainly not for many years back, the other members of the house have never proposed other plans of finance, or undertaken to act on the old principle of representatives of the people, further than to object to and vote against the ministerial propositions. Thus the house of commons is rendered part of the machinery of the executive government, and whenever a minister becomes so unpopular as to lose his ascendency in the house, either it must be dissolved, and the chance of
one more pliant be taken by another election, or the minister resigns and the crown employs new and more judicious or more dexterous servants. Great jealousy of the interference of the house of lords with money bills is retained, in which the ministerial part of the house of commons prudently unite; but no jealousy of the power of the ministry in their own house is collectively manifested. In short, the actual government of that country, as now administered, is purely the government of the crown, and the supposed representatives of the people, the house of commons, are merely what the first lord of the treasury, the chancellor of the exchequer, and similar great officers are avowedly; that is, the ministers of the executive government. It is true, that to keep up the appearance of its ancient character and independence, certain inferior officers of the excise and customs, &c. those who hold any office created since the year 1705, and persons holding pensions at the pleasure of the crown, or for a term of years, are ostentatiously excluded from seats in the house of commons; a sort of political flattery which can deceive only superficial observers; but the great managers of the whole machine remain in the heart of it, and direct all its internal springs and movements.
How is this open and undisguised process accomplished?
The answer is-by the almost entire destruction of their ancient principle of representation.
In very few parts of the kingdom is a seat obtained through the unbiassed and independent votes of the people. Boroughs, once populous and free, have become the actual property in point of suffrage of the crown, or of aristocratic families, and now are in fact, mere subjects of sale or barter. The minister carefully avoiding to present himself as a candidate in