Chapter 6

The Constitution of England Icon

September 29, 2015

IN every government there are three sorts of power=

  1. The legislative= this lets the prince or magistrate:
  • create and revise laws
  1. The executive that implements the law of nations= This lets him:
  • make peace or war
  • send or receive embassies
  • establish the public security
  • provide against invasions
  1. The judiciary that implements the civil law= This lets him:
  • punish criminals
  • judge the disputes between individuals.

Superphysics Note= The legislative is the worker class, the executive is warrior class, the judiciary is the intellectual class. We propose a fourth power which is the resource power representing the merchant class. This mirrors the despotism of the workers, the monarchy of the warriors, and the republic of the intellectuals.

The political liberty of the subject is a tranquillity of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so con stituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch o r senate should enact tyrannical laws, to execute them in a tyrannical mann er.

Again, there is no liberty if the judici ary power be not separated from the legislative and executive. Were it join ed with the legislative, the life and liberty of the subject would be expos ed to arbitrary controul; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of every thing, we re the same man, or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing th e public resolutions, and of trying the causes of individuals.

Most kingdoms in Europe enjoy a moderate government, because the prince, who is invested with the two first powers, leaves the third to his subjects.

In Turkey, where these three powers are united in the sultanE28099s person, the subjects groan under the most dr eadful oppression.

In the republics of Italy, where these t hree powers are united, there is less liberty than in our monarchies. Hence their government is obliged to have recourse to as violent methods, for it s support, as even that of the Turks; witness the state-inquisitors,* and the lionE28099s mout h into which every informer may at all hours throw his written accusations.

In what a situation must the poor subjec t be, under those republics! The same body of magistrates are possessed, as executors of the laws, of the whole power they have given themselves in quality of legislators. They may plunder the state by their general determi nations; and, as they have likewise the judiciary power in their hands, eve ry private citizen may be ruined by their particular decisions.

The whole power is here united in one bo dy; and, though there is no external pomp that indicates a despotic sway, y et the people feel the effects of it every moment.

Hence it is that many of the princes of Europe, whose aim has been levelled at arbitrary power, have constantly set out with uniting, in their own persons, all the branches of magistracy, an d all the great offices of state.

I allow, indeed, that the mere hereditar y aristocracy of the Italian republics does not exactly answer to the despo tic power of the Eastern princes. The number of magistrates sometimes moder ates the power of the magistracy; the whole body of the nobles do not alway s concur in the same design; and different tribunals are erected, that temp er each other. Thus, at Venice, the legislative power is in the council, the executive in the pregadi , and the judiciary in the quarantia. Bu t the mischief is, that these different tribunals are composed of magistrat es all belonging to the same body; which constitutes almost one and the sam e power.

The judiciary power ought not to be give n to a standing senate; it should be exercised by persons taken from the bo dy of the people,* at certain times of the year, and consistently with a form and manner prescrib ed by law, in order to erect a tribunal that should last only so long as ne cessity requires.

By this method, the judicial power, so t errible to mankind, not being annexed to any particular state Edition= current; Page= [201] or profes sion, becomes, as it were, invisible. People have not then the judges conti nually present to their view; they fear the office, but not the magistrate.

In accusations of a deep and criminal na ture, it is proper the person accused should have the privilege of choosing , in some measure, his judges, in concurrence with the law; or, at least, h e should have a right to except against so great a number, that the remaini ng part may be deemed his own choice.

The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.

But, though the tribunals ought not to b e fixt, the judgements ought; and to such a degree, as to be ever conformab le to the letter of the law. Were they to be the private opinion of the jud ge, people would then live in society without exactly knowing the nature of their obligations.

The judges ought likewise to be of the s ame rank as the accused, or, in other words, his peers; to the end, that he may not imagine he is fallen into the hands of persons inclined to treat h im with rigour.

If the legislature leaves the executive power in possession of a right to imprison those subjects who can give secu rity for their good behaviour, there is an end of liberty; unless they are taken up in order to answer, without delay, to a capital crime; in which ca se they are really free, being subject only to the power of the law.

But, should the legislature think itself in danger, by some secret conspiracy against the state, or by a correspond ence with a foreign enemy, it might authorize the executive power, for a sh ort and limited time, to imprison suspected persons, who, in that Edition= current; Page= [202] case, w ould lose their liberty only for a while, to preserve it for ever.

And this is the only reasonable method t hat can be substituted to the tyrannical magistracy of the Ephori, and to the state inquisitors of Venice, who are also despotical.

As, in a country of liberty, every man w ho is supposed a free agent ought to be his own governor, the legislative p ower should reside in the whole body of the people. But, since this is impo ssible in large states, and in small ones is subject to many inconveniences , it is fit the people should transact by their representatives what they c annot transact by themselves.

The inhabitants of a particular town are much better acquainted with its wants and interests than with those of oth er places; and are better judges of the capacity of their neighbours than o f that of the rest of their countrymen. The members, therefore, of the legi slature should not be chosen from the general body of the nation; but it is proper, that, in every considerable place, a representative should be elec ted by the inhabitants.

The great advantage of representatives i s, their capacity of discussing public affairs. For this, the people collec tively are extremely unfit, which is one of the chief inconveniences of a d emocracy.

It is not at all necessary that the repr esentatives, who have received a general instruction from their constituent s, should wait to be directed on each particular affair, as is practised in the diets of Germany. True it is, that, by this way of proceeding, the spe eches of the deputies might, with greater propriety, be called the voice of the nation; but, on the other hand, this would occasion infinite delays; w ould give each deputy a power of controlling the assembly; and, on the mo st urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person.

When the deputies, as Mr. Sidney well ob serves, represent a body of people, as in Holland, they ought to be account able to their constituents; but it is a different thing in England, where t hey are deputed by boroughs.

All the inhabitants of the several distr icts ought to have a right of voting at the election of a representative, e xcept such as are in so mean a situation as to be deemed to have no will of their own.

One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as require some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of repr esentatives, which is within their reach. For, though few can tell the exac t degree of menE28099s capacities, yet there are none but are capable of knowing, in general, whether the person they choose is better qualified th an most of his neighbours.

Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit ; but for the enacting of laws, or to see whether the laws in being are dul y executed; a thing suited to their abilities, and which none indeed but th emselves can properly perform.

In such a state, there are always person s distinguished by their birth, riches, or honours= but, were they to be co nfounded with the common people, and to have only the weight of a single vo te, like the rest, the common liberty would be their slavery, and they woul d have no interest in supporting it, as most of the popular resolutions wou ld be against them. The share they have, therefore, in the legislature ough t to Edition= current; Page= [204]< /span> be proportioned to their other advantages in the state; which happen s only when they form a body that has a right to check the licentiousness o f the people, as the people have a right to oppose any encroachment of thei rs.

The legislative power is, therefore, com mitted to the body of the nobles, and to that which represents the people; each having their assemblies and deliberations apart, each their separate v iews and interests.

Of the three powers abovementioned, the judiciary is, in some measure, next to nothing= there remain, therefore, on ly two= and, as these have need of a regulating power to moderate them, the part of the legislative body composed of the nobility is extremely proper for this purpose.

The body of the nobility ought to be her editary. In the first place, it is so in its own nature; and, in the next, there must be a considerable interest to preserve its privileges= privilege s, that, in themselves, are obnoxious to popular envy, and of course, in a free state, are always in danger.

But, as an hereditary power might be tem pted to pursue its own particular interests, and forget those of the people , it is proper, that, where a singular advantage may be gained by corruptin g the nobility, as in the laws relating to the supplies, they should have n o other share in the legislation than the power of rejecting, and not that of resolving.

By the power of res olving, I mean, the right of ordaining by their own authority, or of amending what has been ordained by others. By the pow er of rejecting, I would be understood to mean, the right of annulli ng a resolution taken by another; which was the power of the tribunes at Ro me. And, though the person possessed of the privilege of rejecting may like wise have the right of approving, yet this approbation < span class3D"decoration">Edition= current; Page= [205] passes for no more than a declaration that he intends to make no use of his privilege of reje cting, and is derived from that very privilege.

The executive power ought to be in the h ands of a monarch, because this branch of government, having need of dispat ch, is better administered by one than by many= on the other hand, whatever depends on the legislative power, is oftentimes better regulated by many t han by a single person.

But, if there were no monarch, and the e xecutive power should be committed to a certain number of persons, selected from the legislative body, there would be an end of liberty, by reason the two powers would be united; as the same persons would sometimes possess, a nd would be always able to possess, a share in both.

Were the legislative body to be a consid erable time without meeting, this would likewise put an end to liberty. For , of two things, one would naturally follow; either that there would be no longer any legislative resolutions, and then the state would fall into anar chy; or that these resolutions would be taken by the executive power, which would render it absolute.

It would be needless for the legislative body to continue always assembled. This would be troublesome to the repres entative, and moreover would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives and the right it has to execute.

Again, were the legislative body to be a lways assembled, it might happen to be kept up only by filling the places o f the deceased members with new representatives; and, in that case, if the legislative body were once corrupted, the evil would be past all Edition= current; Page= [206] remedy. When different legislative bodies succeed one another, the people, who have a bad opinion of that which is actually sitting, may reasonably entertain some hopes of the next= but, were it to be always the same body, the people , upon seeing it once corrupted, would no longer expect any good from its l aws; and, of course, they would either become desperate or fall into a stat e of indolence.

The legislative body should not meet of itself. For a body is supposed to have no will but when it is met= and besi des, were it not to meet unanimously, it would be impossible to determine w hich was really the legislative body, the part assembled, or the other. And , if it had a right to prorogue itself, it might happen never to be prorogu ed; which would be extremely dangerous, in case it should ever attempt to e ncroach on the executive power. Besides, there are seasons (some more prope r than others) for assembling the legislative body= it is fit, therefore, t hat the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigence s of a state, known to itself.

Were the executive power not to have a r ight of restraining the encroachments of the legislative body, the latter w ould become despotic= for, as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.

But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For, as the execution has its natural limits, it is useless to confine it= besi des, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not o nly to the legislation, Editi on= current; Page= [207] but likewise to the executive part of government; which was attended with infinite mischiefs.

But, if the legislative power, in a free state, has no right to stay the executive, it has a right, and ought to ha ve the means, of examining in what manner its laws have been executed; an a dvantage which this government has over that of Crete and Sparta, where the Cosmi and the Ephori gave no account of their administration.

But, whatever may be the issue of that e xamination, the legislative body ought not to have a power of arraigning th e person, nor, of course, the conduct, of him who is entrusted with the exe cutive power. His person should be sacred, because, as it is necessary, for the good of the state, to prevent the legislative body from rendering them selves arbitrary, the moment he is accused or tried there is an end of libe rty.

In this case, the state would be no long er a monarchy, but a kind of republic, though not a free government. But, a s the person, intrusted with the executive power, cannot abuse it without b ad counsellors, and such as hate the laws as ministers, though the laws pro tect them, as subjects these men may be examined and punished= an advantage which this government has over that of Gnidus, where the law allowed of no such thing as calling the Amymones* to a n account, even after their administrationE280A0; and therefore the people could never obtain any satisfaction for the injuries done them.

Though, in general, the judiciary power ought not to be united with any part of the legislative, yet Edition= current; Page= [208] this is lia ble to three exceptions, founded on the particular interest of the party ac cused.

The great are always obnoxious to popula r envy; and, were they to be judged by the people, they might be in danger from their judges, and would moreover be deprived of the privilege, which t he meanest subject is possessed of in a free state, of being tried by his p eers. The nobility, for this reason, ought not to be cited before the ordin ary courts of judicature, but before that part of the legislature which is composed of their own body.

It is possible that the law, which is cl ear-sighted in one sense, and blind in another, might, in some cases, be to o severe. But, as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere passive beings, incapable of moderating either its force or rigour. That part, therefore, o f the legislative body, which we have just now observed to be a necessary t ribunal on another occasion, is also a necessary tribunal in this= it belon gs to its supreme authority to moderate the law in favour of the law itself , by mitigating the sentence.

It might also happen, that a subject, in trusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates eithe r could not, or would not, punish. But, in general, the legislative power c annot try causes; and much less can it try this particular case, where it r epresents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, a nd, being composed moreover of men who are chosen from the people as well a s itself, will naturally Edit ion= current; Page= [209] be swayed by the authority of so powerful an a ccuser? No= in order to preserve the dignity of the people and the security of the subject, the legislative part which represents the people must brin g in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.

Here is an advantage which this governme nt has over most of the ancient republics where this abuse prevailed, that the people were at the same time both judge and accuser.

The executive power, pursuant to what ha s been already said, ought to have a share in the legislature by the power of rejecting; otherwise it would soon be stripped of its prerogative. But, should the legislative power usurp a share of the executive, the latter wou ld be equally undone.

If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But, as it i s necessary he should have a share in the legislature for the support of hi s own prerogative, this share must consist in the power of rejecting.

The change of government at Rome was owi ng to this, that neither the senate, who had one part of the executive power, nor the magistrates, who were entrusted with the other, had the right of rejecting, which was entirely lodged in the people.

Here, then, is the fundamental constitut ion of the government we are treating of. The legislative body being compos ed of two parts, they check one another by the mutual privilege of rejectin g. They are both restrained by the executive power, as the executive is by the legislative.

These three powers should naturally form a state of repose or inaction= but, as there is a necessity for Edition= current; Page= [210] movement in the course of human affairs, they are forced to move, but still in conc ert.

As the executive power has no other part in the legislative than the privilege of rejecting, it can have no share i n the public debates. It is not even necessary that it should propose; beca use, as it may always disapprove of the resolutions that shall be taken, it may likewise reject the decisions on those proposals which were made again st its will.

In some ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the executive power to propose and debate in conjunction with the people; otherwise their resolutions must have been attended with a strange confusion.

Were the executive power to determine th e raising of public money otherwise than by giving its confent, liberty wou ld be at an end; because it would become legislative in the most important point of legislation.

If the legislative power were to settle the subsidies, not from year to year, but for ever, it would run the risk of losing its liberty, because the executive power would be no longer depend ent; and, when once it was possessed of such a perpetual right, it would be a matter of indifference whether it held it of itself or of another. The s ame may be said if it should come to a resolution of intrusting, not an ann ual, but a perpetual, command of the fleets and armies to the executive pow er.

To prevent the executive power from oppressing, its armies should:

  • consist of the people
  • have the same spirit as the people

This was the case in Rome until the time of Marius.

For this, there are two options:

  1. The army personnel should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome; or,

  2. The legislative power be able to disband an army as soon as it pleased, if the army was made up of the most despicable part of the nation

The soldiers should live in common with the rest of the people. They should have no separate camp, barracks, or fortress.

Such an army should not depend immediately on the legislative, but on the executive. This is because an army acts more than it deliberates.

It is natural for mankind to set a highe r value upon courage than timidity, on activity than prudence, on strength than counsel. Hence the army will ever despise a senate, and respect their own officers=

They will naturally slight the orders sent them by a body of men whom they look upon as cowards, and therefore unworthy to command them= so that, as soon as the troops depend entirely on the legislative body, it becomes a military government; and, if the contrary has ever happened, it has been owing to some extraordinary circumstances.

It is because the army was always kept divided; it is because it was composed of several bodies, t hat depended each on a particular province; it is because the capital towns were strong places, defended by their natural situation, and not garrisone d with regular troops. Holland, for instance, is still safer than Venice; s he might drown or starve the revolted troops; for, as they are not quartere d in towns capable of furnishing them with necessary subsistence, this subs istence is of course precarious.

In perusing the admirable treatise of Ta citus on the manners of the Germans,* we find it is from that nation the English have borrowed th e idea of their political government. This beautiful system was invented fi rst in the woods.

As all human things have an end, the sta te we are speaking of will lose its liberty, will perish. Have not Rome, Sp arta, and Carthage, perished? It will perish when the legislative power sha ll be more corrupt than the executive.

It is not my business to examine whether the English actually enjoy this liberty, or not. Sufficient it is for my p urpose to observe, that it is established by their laws; and I inquire no f arther.

I do not undervalue other governments, nor to say that this extreme political liberty ought to give uneasiness to those who have only a moderate share of it.

I think:

  • that the highest refinement of reason is not always desirable, and
  • that mankind generally find their account better in mediums than in extremes?

Harrington, in his Oceana, also asked enquired into the utmos t degree of liberty to which the constitution of a state may be carried.

But he lacked the knowlege of real liberty. So he busied himself pursuing an imaginary one. He built a Chalcedon, though he had a Byzantium before his eyes.

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