The Legislative

Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic. 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 popular 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 constitution 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; 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 2 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.