Gleanings in Europe

by James Fenimore Cooper

You will be curious to know what may be the effect of the cheering and coughing system; or, perhaps it were better now to term it the bah-ing system. There can be no doubt that such practices open the door to abuses of a more serious character than those which arise from the liberty of talking by the day. One puts it in the power of a majority to stifle reason and suppress facts, while the other merely exhausts patience and consumes time. Now time is of much less importance to congress than to parliament, since the powers of the former extend only to certain great interests, while the latter, as I have just shown you, legislates even about the servants of the country.

It would be a great saving of time, and a great furtherance of justice, if there were established a tribunal at Washington, to sit constantly, whose sole business it should be to decide on private claims against the government. An appeal might lie to Congress, on the part of a public advocate appointed to protect the public interests, or it might even be expedient to sanction all the decisions by enactments, but, in nineteen cases in twenty, I think, the two houses would take the reports of the tribunal as conclusive. The auditors, it is true, form some such judicial officers now, but the tribunal I mean would take cognizance of all the claims that at present go before Congress, and might be contested, if improper, by a law officer. We shall have such a court, in time, but not till we think less as Englishmen and more as Americans.

We are too apt to consider parliament and congress as bodies of similar powers, and, consequently, as recognising the same general legislative maxims. This error has led to some of the most serious evils to which our experience has given birth, and which, by insensible means, unless corrected in time, will sooner or later lead to a perversion of the governing principles of our own government.

Whatever may have been the ancient dogmas of the British constitution, parliament is now absolute. It is true that the executive, in theory, forms an integral part of parliament, but by gradual and constant encroachments on the authority of the crown, the ministers have become the creatures of parliament whenever the latter sees fit to assert its authority, although a majority of the latter is apt to be the creatures of ministers, in another and a more limited sense. The members are bought, it will be remembered; however, because they possess the power, and he who traffics away his authority, in this mode, does not part with it entirely, but is merely turning it to his personal account. The only power in England that can resist parliament, is the body of the nation. As this is an extra-legal force, forming no part of the system, it is to be found everywhere, and is only more available in England than in Turkey, because the nation is more enlightened. It is in truth the only elementary check which exists on the action of the omnipotence of parliament, all the others extending no further than they can go by intrigue and management. This practical feature in her government, gives England some sort of claim to be considered a republic. Congress is composed of attorneys in fact, not only are its powers expressly limited, but such is the nature of the trusts, that any attempt to exceed them is a direct assault on the omnipotence of the constituency. With us the executive is as much representative as the legislature, the trustee of the power being a direct emanation of the popular will. To attempt to control him, then, in the exercise of his constitutional authority, is for an attorney named for one specific trust to attempt to discharge the duties committed to another, named for quite a different, and for an equally specific trust.

These are the general features of difference, which of themselves are sufficient to give birth to very different legislative maxims, and which would give birth to them, were not traditions, more efficacious, in such matters, than principles. But there are many minor points that frequently agitate us, and which are commonly settled on English principles, that are closely connected with a due consideration of the discrepancies between the two polities. I will illustrate my meaning, by an example.

The right of petition is justly esteemed an important English right, whereas with us, it may be made the instrument of doing infinite harm, while I question if a single case of its exclusive and particular usefulness, could be cited.

In England, the right of petition is the only regular mode by which the body of the nation can at all enter into the councils of the nation. Apart from the fact that the constituencies are arbitrarily wielded as mere political machinery, a vast majority of the English have not even this indirect, and inefficient control over the choice of their legislators. One body is hereditary, and the other is chosen by a striking minority, even in theory; and, in fact, by the influence of the aristocracy. Under such a system the right of petition is doubly useful, for while it serves as a lever for the mass, it also serves as a beacon to their rulers. A moderate and timely application of this force may prevent an exercise of it that would overturn the state.

The right to petition Congress existed entirely as a traditionary right, until the constitution was amended. Certainly any man, or any set of men could petition, as much as they pleased, but the question now in consideration is whether there exists any governing and important principle that would render it incumbent on Congress to receive and consider their requests, had not Mr. Jefferson introduced his amendment. As the people are directly, fully and always recently, represented in Congress, there exists no plea on the score of the necessity of adopting this mode of being heard, as in England. Under such a system there is no danger of laws being passed, as in England, to prevent county meetings being called without the sanction of an officer of the government; and the people, if they wish it, have always the expedient of assembling when, where and how they please, to make their sentiments known. Congress has no power to pass any such a law at all. Parliament may curb the press, but Congress is absolutely impotent on this point. It was impotent, before the amendment existed, for all these provisions were supererogatory. The tendency of a government like ours, is to the doctrines of pledges and instruction, (neither of which is tenable as a whole, though true in part) and it would seem that they who claim a right to instruct can have little need to petition. But the objects of a petition can be better obtained by another mode of proceeding. If the people assemble in primary meetings, and put the subject of the petition into the form of a printed memorial, and cause their names to be published, such a document would be more likely to effect its object, because it would be more authentic than the old method. It would be in the way of being read, so as to be understood, a fate which befalls few petitions, and names could not be surreptitiously annexed without exposure, as is constantly practised with petitions.

All this will probably appear very much like heterodoxy, and yet I think it all quite true. The subject might easily be extended to many other practices. You may feel disposed to ask, why Mr. Jefferson, a lover of independence, so far overlooked these distinctions as to obtain an insertion of a clause in the constitution, by way of amendment, securing the right of petition to the people? No man is omniscient; and Mr. Jefferson, having been educated under the monarchy, deferred more to its maxims, than would have been the case, had he lived later. But General Lafayette has explained to me the reason why several of the supererogatory clauses were introduced, in 1801. Mr. Jefferson was in Europe when the constitution was formed. This instrument was a subject of great interest to the liberals of this part of the world, who know little of the substratum of freedom which exists with us, in the state governments. It was an awkward thing to explain that Congress possessed no powers that were not expressly ceded, when he was asked where were our guarantees for liberty of conscience, and of the press, and for this right of petition, which, in Europe, where the people cannot assemble without permission half the time, and are not directly represented, is justly deemed a right of the last importance. Under the feeling created by the constant inquiries that he heard on these points, Mr. Jefferson got the amendments, mentioned, introduced. At least, such is the history of the transaction that I have received from General Lafayette.

In ninety-nine cases in a hundred, petitions lead to no greater injury, with us, than to a waste of time. Indeed, they are getting to be rather unusual, the public feeling them to be unnecessary. It resorts to a higher power, being the master. But petitions may work peculiar evil, under a system like ours. If recognised as a right, it is a mode of entering Congress with vexed questions, over which Congress may have but a doubtful, or no proper control, and disturb, uselessly, the harmony of its councils. A single member may do this, also, it is true, but with less influence, and consequently with less injury. Petitions are a sort of semi-official consultation, and, besides letting the wishes of the whole, or of a part of the people be known, which can be, at least, as well effected by other means, they insidiously work their way into the debates, and enlist the passions, prematurely, on subjects that may require great forbearance to be disposed of wisely and with safety. It should always be remembered, among other things, that instead of dealing with citizens, our government is often called on to deal with states. There is so strong a bias in men of reading to take warning from history, under the just persuasion, that human nature continues inherently the same, throughout all time, that they too frequently neglect to ascertain whether the facts are identical, in preaching their favourite doctrine, that “like causes produce like effects.”