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Maps, plates, charts, etc., may be filmed at different reduction ratios. Thoss too large to be entirely included in one exposure are filmed beginning in the upper left hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent Atre fllmAs A des taux ds rAduction diff Arents. Lorsque le document est trop grend pour Atre reproduit en un seul clichA, 11 est filmA A partir ds rangle supArieur gauche, de gauche A droite, et de haut en bas. en prenant le nombre d'images nAcessairs. Les diagrammes suivants iilustrent ia mAthode. 6 V I E OF THE w ENGLISH CONSTITUTION. By the late Baron De Montesquieu. BEING ' A Tranflatton of the Sixth Chapter of the Eleventh Book of his celebrated Treatife, intitled L'E SPRIT DEs LOIX. LONDON: SolcTby B. WHITE, Horace's Head, Fleet-Street i and H. P AYNE, in Pall-Mail. »^ MDCCLXXXI. £ Price ONE SHILLING. J ■\ Y A i .^ »k, ^ ji i V J.. 9 .4 * ^ /-&/ tl ...V. -i / . i i J. ■« .^ ' i l l ———I ■ II I 11 ■ III ^ I ■I——— A C C O U N T, ? V 4, V >'»!'> 'Iff- . . / O F T H E ^ '-if Of^rnit E N G L IS H CONSTITUTION' !■:■. e5'I£Xii-; xy.v. J • ^.n:ii.i .rXili'll 0/* /^^ /ySr^i' Ponsoefi of GcnjernfneM th0t muft exifl in every Civil Society ^ . the Legijlativey Executive^ and yur r dicia/ Powers. " W -b ■* 1 *i *■ ' f -* (•i !•» '-, e « 1 I. N every civil government there mud: neceffarily exifl: thele three forts of power ', the legiflative po vt{^ ; a,i^ power of making lawsj the execucive po • rv with refpedt to thofe ads of ilate which rclatj to the law of nations ; and the executive nowv-r with refpedt to the internal government cf ihz country, or to thofe domefl^ic exertioiJS of au- thority which are diredted by the civil, or mu- nicipal, laws eftabliflied in it, B ■ !L By :'%avi'i ''X 4 ^ 'Iri ± AN ACCOUNT OF THE II. By virtue of the firfl: of thefe pdwefs tlie prince, or other fovereign magiftrate, makes l.avvs for the ftate, and ordains them to be in force either for a limited time,..or for ever, as he thinks fit; and by the fame pov^rer he amends, or abolifhes, the laws already in being, as he fees occafion. By virtue of the fecond power he makes peace or war, fends ambafla- dors to foreign ftates, or receives ambafladors from them, takes the neceflary meafures for fecuringthe dominions of the ftate from armed violence, and for preventing and repelling any invafions of them by foreign enemies. By vir- tue of the third power he punifhes the crimes that are committed in his dominipqs, and de- cides the civil difputes that arife in them, or, in other words, adminifters juflice both criminal and civil. This latter part I fhali henceforth taW the power of judging, ox the judicial powers and the other branch of executive power I fliall call fimply the executive power of the Jlate, The true no- HI. True political liberty in a member of cal liberty, any civil Community, is that eafe and ferenity of mind which is the confequence of a firm opinion in the feveral members of the ftate thaf, fo loDg as they abftain from offending, againft the ENGLISH CONSTITUTION. 3 the laws, they (hall be perfectly fafe and have nothing to fear from any body. It is therefore neceflary to the general enjoyment of liberty, underftopd in this its true (enfe, that the feverai powers above-mentioned (which muft neccfla- rily exift feme where in the fociety) (hould be {o diftributed and parcelled out into different hands that no member of the ftate may, by means of them, become fornKidable to any other / IV. When the legiflative power and the exe- ^/ ^^^ "nioi cutive power are both vellea m the fame per- f v- dnd iegif fon, or perfons, whether it be in a king, or '^^'^^ Powers. other fingle perfon, or in a fenate, or council, conlifting of leveral perfons, the people at large cannot be free : becaufe there is realon to fear that the king, or fenate, who are polTeiTed of both thefe powers, may make ufe of both to the prejudice of the people, by, firft, making op- preflive laws concerning them, and then exe- cuting thoie laws in an oppreffive manner. V. Secondly, the people 'Can enjoy no liberty o^ t^e "n»or /> ■ ■' • y 1 . •■■/.,•• f . /• ■ /, of the judicia .^ m a ftate, unleis tht judictal power is feparatcd power with from both the legiflative potVer and the exccu- gljll^'tlvc^^r ' tive power. For, if it v<^as united to the le^iY- ^"^^ ^^ cxecuiiv* "•:r El lative »- • '* ,'■ AN ACCOUNT OF THE lativc power, that is, if the fame perfons were to be both legiflators and judges, they would have an arbitrary authority over the lives and li- bcrties of the other members of the ftate. For, 'if they pafled judgements that were contrary to tiie laws, thofe judgements would neverthelcfs be confidered as being agreeable to the laws, becaufe the judges themfelves in their other ca- |:acity of legiflators, or makers of the laws, and confequently interpreters of them, would have a right to declare that they were fo. And, on the other hand, if the judicial power was united to the executive power, or the perfon, or per- fons, who had the latter power, (which involves in it the command of all the military force in the ftate,) were likewife to have the power of judging, fuch judges would be fo extreamly powerful that there would be no hope of ob- taining any redrefs againft them in cafe they pafled unjuft and oppreflive judgements. Of the union VI. And therefore, thirdly, there would powers afore- be HO (hadow of liberty left in a ftate, if all ^***'' thefe three great powers, "of making laws, carrying into execution the publick meafures of the community, and deciding criminal and civil fuits," were to be united in the fame perfons, wheher ENGLISH CONStlTUTION. /. whether it were in the hands of one man, or of a fingle body of hereditary nobles,' "of other eminent perfons in the ftatc, or even, of a fingle body of inferiour perfons fclcifted from the people at large. » VII. In mod of the kinp;doms of 'ITurope Of the Euro, the government, though not pcrfecftry free, is chies. yet moderate, becaufc the fovcreigns have "ke'pt in their own hands only the Icgillative and exe- cutive powers, and have given up to their Tub- jeas the "exercife of the jiidiclal power. Whereas Ofthegovem- in Turkey, vyhere airtlVc three powers arc linit- )!|1" ed in the perfon of the Gran^ Sei^ynior, we fee a moft dreadfuL degree of arbitrary power pervades the whole qburitry, *-. -. ? •jn: Vin.^Iri the modern coirimonwealth'g^vem- of the mo- T 1 • 1-1 I /• t . ' .. ^ ci"'.- 'J^^rii com. ments m Italy, m which thele three powers are men wealth* united in thcfame bodies of men, the people °* ^"'^' enjoy a' left degree of liberty than in '.our Eurdpean monarchies. And accordingly the governing powers in fonie commonwealths, in order to maintain their authority and prevent the ill confequences of the diflatisfadion of the people, are obliged to have recourfe to metliods that are nearly as violent as thcfe which arc lifed m : -.fifji'. If '" 'i ACCOUNT _ r m , ■( i ' M • ■^ # -^ t 1 T . 6 AN ACCOUNT OF THfe in the Turkifli government. Witne'fs tnc S^ate^ Inquifitors at Venice, and the public box, or trunk, in which any informer has a right at any time to put a written accufation againil any member of the ftate. I IX. Let us condder a little what the condi^ tion of a private member of one of thofe com- monwealths is. One and the fame body of ma- giftrates in thefe dates excrcifes in particular cafes, as judges or executors of the laws, thofe pow* crs with which, in their other capacity, of le- giflators, they have choien to invert themfelve^. They may, firft, opprefs the people by their general refolutions, or laws, and afterwards may ruin particular members of the commu- nity by their particular refolutions,. or. determi- nations as judges. .'..'. •li.ii 4. ti4 < . k. . .A of I i;. X. All the different powers bf^^qvernment arc in thefe ftates combined together unSer the fame diredlion ', and, though there are no cir- cumftances of outward ihew and Ipl^ndour to point out to the people who their mafters are, yet every man feels, at almoft every inftant of his life, that he has fuch mafters, to whom it is abfolutely licceflary he ftiould fubmit, and over whofe RlftQLISH GON§TITUTION. 7 whofe (9^10^9* if) th^^f^inary cpurfe of things, ibe body .of th^ people have na^ontroui. T .«». f, I, ...'(,. XI. Accordingly we find that thofe princes, or other eminent and ambitious n^en, who have aimed at making themfelves abfolute maOiprs of ihc ftateathcy lived in, have always begun the execution of that defign by drawing to them- felves, ;and uniting in their own perfons, the fcveraldifFcrcol gC€»t .in^gidracies of the ftate : as.icvcaai .'kings iii Europe have taken to them- £blye& the ieveral greai ffSkes in theif refpcdivc XIL I'believe, howevi?ri that |the puce here- ditary ariftocracy that is eftabllQied in the feveral commonwealths of Italy may not make thofe go- vernments quite fo abfolute as thofe of the Turk- ifli and other Afiatic monarchies. The greatnefs of the number of the ptagiftrates, who are in- verted with the powers of govinment in thofe republicks, may probably fomewhat foften the exercife of the powers belonging to the magif- tracies themfelves; all the nobles are not always engaged in the fame defigns j and different tri- bunals, though formed of the fame body of the nobility, are compofed of different members of A N A C C 6 U N^ d F T H^ of that great body, and are inveiled with differ- ent authorities: fo that they; in'fome degice ferve as a check and reftraint upon each other. Thus, in the government of Venice, the Great Council are inverted with the legiflative power, the Pregady has the executive power, arid the Council of Forty has the judicial power. ' Biit the misfortune iS; that thefe feveral tribunals, though they are inverted with dirtlnd; authori^ ties, yet ^re compofed ^f -^magirtrates who arc, all of them j members of the fame body-in cbn« tra-dirtin£tion to the bb% of tl^e pe<^le at^Iacge : and that degree of connection with each other. makes them too much one power for the people who are governed by them to be trueiy frc^C :vn-^ '* ' \ '1 1 j J 1 ;.h:-:i;::-.;: :.:' : "jir.'^'irjiio.'i: ■^.j^/irti*'. 'ifiiio i- .dll ■ M ■-•■]' r '\ ■■ j: ■'^.•;;i «■•-;■.♦ ;jf'.- : . iijCjttiUii -i'-l'\o ■.:r;'i III :-[\ •■• 'V '^"l^ '.%> ';-'V^/C'j ^ill iliiv/ I.lifbv ' ■ ■f\ r r' ■ . ■ • • ■ •-i 1 . ► 1 . . . .1 < ■ '■n , ' ■' \\ ' ,^ ;j]:;. ^-r... 5rlj i:] I., Qr ' "':0 • ' N- icial Power* ' XHr.v' ■ ^HE .power; of judging ^ught not ta . X.J.'berrnrefted^ m a; permanent fenate>j or council, confifting always of the fame mem- bers, fbur^^uld be fxercifed by per^ns taken hdm the. body tcJfr the peOpl€:atr certain -appoint-, ed'times of thetiy^^t' in a iQ^rtfler prelcribed by^ the laLws,ofb ziviQ\iotxj\(^nr^o^cafiQnaltrilmttaL iJiat fliall cxift xio longer, tbannthecaufe wlydi^ gives frifcl to it&JCrfcationv aTfefewas the pE^j^tipCt formetfy .aJnAth^eBfiirfraiid is. fo a^ this; day o^^. BnglindibynaieaAS ^ the; excellent tnode of tH&l by '^K» xVjbich.is there eftabliflied. : ^.^^ (WrJ ocb /hiv ao'P' jiffic:; n: >-'%T> ^^.-i -v:--* i XiV. By iheajis of this, ;prec«iution the poWjC^r of^ judging,: ('whieb is in its own naj^ire fq formi- dable^ to mankind,) not being annexed either to perlbnaofiany particular rank, or order, in the ftate,:. or to the member?, pf .a?^ particular pro- ^0 feflion ti io T.-: AN ACCOUNT OF T»B feffion in it, becomes in a manner invifible and, as it were, non-exiftent : . — the people have not before their eyes the cohftstht smd srlarming view of perfons who are authorized, if they fhould be charged with the commiffion of any crimes^ to fit in judgement .upon them ;. and fo they be- come e:.ompt from all fear of particular men on that account, and retain only a general dread of the magif^racy itfelf in the abflraii, by whicK they tiiay be ^brought to pimiftmient. -* XV. And in £x»e cafes it is proper to ^kd even further meaftit^fes than this " of making tbe!: tribunals of judice occafional/' in order to abato the terrors which naturally follow dieiexercift. bf the judicial power.- It is fit that in'trialfe fbr bfifehces of' the higher claffes, which arife atteridfed with the feverer puniflMlttfents, &ii as to": affed: men's lives or limbs j '**^ it is ifit, I^^ that in thefe ' iak - Ae cdm^triai hknfelf flobuid^ have feme fhare, in conjunction with the law, iftchiifing the judgefe by whom heris toibe filfid ; of,' at leaft, that he (hould be aWowedbdo reje(Sb and fct afide at hi$ pieafure fo naanyjofctihofe perfons who (hall be appointed* by ihe officers of juftice, according to the known dtrcdions -.1'- ENGtisri cbi^ttti'vrio^. It of the law, to be his judges, that he miy be reafonably confidered as having given his cbh-^ fent to t{ie nomination of the remaining perfchs^ wf^Q |iave been appointed for his judges and have riot been rejected by him. And this is the cif^ in England in alt trials fdrtreafon or felony;* the prifoner being altowedirl thefe 'trials 'to re- jedt or challenge, '(as they expreil it,') af n'ls ^dit' cretion aHd without afiigniifglany reafoii, agre'a't. number of the perfdns nomihafed by the therinS' to be members of the jury mat: is to try hirii,— ^^ iri trials for high treafon' nb'lets fhari si.'per- ions.. - ..,,,.' i ' ' " f * * ' iCVI. Yhe bnier two grea^ pofitibal powers, the legiflative and executive, might wiili much thbre'povversdb'nbt'afFe(ft the conditloh^ofpar-- tjcutar memfeers^pf the ftate V th^ ferft of tqem being the declaration of the general will, oi* re- folutions, of ' the community, * arid the laTtef 'me power of carrying fuch geiieial will,' or reloly-' tions, Jnjo execution. . ; , . ^,11. XVII. But, IX AN ACCOUITT OF, THf) , i ' ■ ■ t XVII. But, though the tribjun^ls of juftice ought not to confift of fixed s|nd permanent bodies of men, the decifigns they make upon the pgffpns,^ or matters, brought before them ought to be; as fixed and uniform as pof&ble^ fp, as to conflicute a preciie and clear body of known law. For, if thcy< were to vary from^ each other, or diHerent judges were in fimilar cafes to make diderent determinations, accord- iiig to their feveral different opinions concerning them,, and withojat regard to the decifions of" their predeceflbrs, the people would live in fiich a ibcibty without knowing with certainty the, extent of the obligations and engagements they enteredjnto, and the duties thev were expe^ed to perform, ' \ . r . . i' i»|w, ',. i (;' h Jiv>yt>d 5Vj!v''lJI ^i.-y'/tq Oir '^Mt:h j^r' XVIII. Another thing requiutc to foften the terrors of the judicj|l. power is the rule (which^ is aifp. obferyed in t\ip trials by jurVr in Englanid,) *' th^t the judges, by whom a criminal is to be triedj fhall be of the fame clafs, or order of men, as the criminal himfelf, or (as they ex* prefs it in England,) fhall be bis peers," This riile is necefTary to prevent the criminal^ and at the fame time all other perfons of the fame rank ',';. juftice iianent s upon e them offible^ )ody of f from^ fimilar iccord- :erning ons of* n fqch ty the, ts they" peeked e en tiki which iafidO' to be icr of y ex- This and fame rank ENGLI^k CONSTiTUTION* 13 rank and condition as the criminal, from enter- taining a fufpicion that he is fallen into the hands of J^rfons ,who are inclined, from the difference of their rank and condition in life, to treat him with unjuft feverity. , , - 1 , '. . .■-■''. " . •. . . # ■ ' '■■ ' 'A f-fif-J. /-.J ")•}/, c'rc-f- -.r-v -ii'-fvl * 1 t--* '•''4 ^/ «' .. r ::[ .(vv? r .*; j«4 AN ACCOUNT OF THE 1 ■ < . .1- Of the Security of Perfonal Liberty, XIX. TF the legiflative body in a ftatc was to X entruft with the executive magiflrates a right of imprifoning men at their pleafure upon fufpicion of fome intended mal-pra6l:ices,or even a power of detaining them in prifon upon a charge of a fmall offence, or mifdemeanour, when the parties accufed were able and willing to give rea- fonable bail for their appearance to (land a trial for their offences, there would be an end of all liberty. But this obfervation muft be confined to the lefTer crimes. For, if a man is charged upon oath, and arrefled, for a capital crime; it is no breach of liberty to refufe to admit fuch a perfon to bail, prcvided he be detained in pri- fon only for a fhoit time and then brought to his trial, without any unnecefTary delay, to an- fwer the accufation brought againft him. In fuch ?/•//. was to hates a eupon or even charge lea the ve rea- a trial 1 of all •nfined barged me; it t fuch n pri- jht to ' toan- . In fuch ENGXISJf CONSTITUTION. ,5 fiich a cafe thd prifoner might judly be faid, though detained in prifon, to be ftill a free man ^ finoe his detention in prifon would not be the effefl of the mere will and pleafure c^ another man, but of the directions of the law itfelf, in ia perfcft fubmiflion to which true liberty con- Ms. 7 ;■ -v/ ;: \; .-bi 'V :y"j '..: . :.: . ...--i.: i',.,,- I ' ■■ .- • - ^ , . > XX. But,, if the legiOative body fhould ap- prehend its own exiftence to be in danger, either from fome fecret confpiracy againft the ftate by domeftic traitors, or from tlie intelligence, or other encouragement, given by fuch wieked H^embcrs; of the ftate to its foreign enemies 5 it would bersafonable and prudent, infudiacafe of extraorJinary danger, for theiegijQative bod^ of the nation to veft in the executive magjftratesi for fome very (hort and limited time, a power of caufing fufpedled perfons to be ap- prehended and detained in prifon, without be- ing admitted to bail, at their difcrction. For, though this, it muft be owned, would be an invafion of the publick liberty, it would be only a temporary invafion of it, and would be fuf- ficiently compenfated to all true lovers of their cjutirry by the tendency it would have to pre- vent J^' ' i6 AN ACCOUNT oy THE: vent the fuccefs of thofe' wicked defigns'by which the publick liberty might otherwife be deftroyed for ever. And this is the method taken by the Enghfh Parliament, when they fome- times, in a great crifis of w. •* or rebellion, fuf^ pend, for about fix months, the operation of their famous Habeas Corpus a<3:, which was paiTed in the 3 ifl year of the reign of kicg Charles II. for the more efFedual prefervation of perfonal liberty. » -'^ '.' I- XXI. And this is the only reafonable method by which the government of a ftate can* upon great occafions, fupply tlje want of fuch a ty- rannical magidracy as that of the Ephori at Sparta, or that of the State-Inquifitors at Venice^ which is no lefs arbitrary than the other. > :. ■ .i 1 w I')-'" i.| > I II ii .-,... .'A ENGLISH CONSTITUTION. 17 t - ■■■.ii2fb ^"li^'ri-^^t rmhj^ii ^u^i^^h "I ,^Mttrli>^: '^ Of the Legijlative Power. .,,-t .. , , -. . t , f , • t . XXII. TN the next place it Is neceflary to •■' inquire in what hands the legif^ lative power ought to be placed, that the publick liberty may not be endangered by it. And here it Teems natural to conceive that, in a free ftate, every man who may . be fuppofed to have a free mind, or a will of his own, and not to be dependant upon the will of another (as flaves are upon the will of their mafter,) ought to be governed according to his own will and confent j and confequently that, in order thereunto, the power of making laws ought to be exercifed by the people themfelvcs affembled in a body for that purpofe. But this, it is eafy to fee, is abfolutely impradicable in a large ftate, fuch as England or France, or the other great monarchies of Europe, on ac- C . count 18 AN ACCOUNT OF THE ' count of the prodigious numbers of people they contain, which are much too great to meet to- gether in one place and tranfaft any com- mon bufinefs. And it has been found liable to very great inconveniences in lefler dates, where it has not been impoffible for them fo to alTemble. It feems neceflary therefore that the people {hould give up their claim of exercifing this authority in their own perfons, and (hould content themfelves with doing the fame thing in a fecondary and indiredl manner by means of their chofen delegates or reprefentatives. ^i .,. -"I « i ■ < a ','' .'V,l OJ they :t to- :om- iable ates, fo to t the OJ ENGLISH CONSTITUTION. 19 ;iM '{<: , V..:.;;:- '^ .; ()2 {';, . f,)M'/ ■'■j .t 1 . . ■ ♦« ■ 0/ ^^^ EleSlion of Reprefentatives of . >v. ;i V^1;j?; /^^ People* "' 3CXIII. rlr^HE next thing therefore to be con- -■- fidered, is the manner in which thefe reprefentatives ought to be chofen. ' Upon this fubjed it may be obferved, that men are always better acquainted with the con- ditions and circumftances of the towns or dif- tiids they inhabit, and with the regulations ne- ceflary to be made concerning them for their further improvement or for the removal of any inconveniences they may labour under, than they are with the condition and circumftances of other towns, and diftrids, which are fituated at a diliance liom them. They are alio better able to judge of the character and quaiificafions of the gentlemen, or other perfons of note, who live in their neighbourhood, than of thofe C 2 of so AN ACCOUNT OF THE W^' of pcrfons who live at a diftance irom them. And from hence itfcenis rcalbnable to conclude, that the members of the legillative body of the nation, who arc chofcn to that office b) the people^ ought not to be chofcn at one grand cledion by the people alTembled together in one body for that purpofc, (if fuch an allembly of them were polTiblc,) nor even by the inhabi- tants of large diftrids of the country aflcmbled togedicr for that purpofe, but by the inhabitants of fingle towns, or diftridts of moderate extent, who fiiould meet together and chufe a (ingle reprefcntative."* ' •^' ■..■^ XXIV. The great advantage of vcfting the legillative authority in the hands of a fct of re- prefentatives chofcn by the people, arifes from its being eafily practicable for luch reprefenta- * Upon the principle of this obfervation it would, perhaps, be an improvement in the manner of electing the Britifh parliament, if the members were chofen for the moft part by the freeholders of thofe divifions of the coun- ties of England, called hundreds, each hundred fending one member. Such a regulation would alfobe attended with the further advantages of preventing the tumults that fome- times happen in ele£lions for counties, and the ruinous expences of them when they are contefted. tives, ENGLISH CONSTITUTION. 21 tives, (partly from the fmallnefs of their num- ber, compared with that of their conftituents, the people at large, and partly from their fuperiour abilities and education,) to difcufs and manage publick bufinefs j— which is what the people at large are, (from a variety of caufes,) utterly incapable of doing. This incapacity is very much felt in pure democracies, where the people attempt to exercife the legiflative power in their own perfons j and it is one of the greateft inconveniences that are found to refult from that too fimple mode of government. XXV. It is not necefTary that the people's OMhepowers rcprefentativcb, after they have received from fentatives o( their conftituents a seneral power to adt for Lk.r°?lt' po^ when they them, and general dire.>vtiJr;:-i:ij;;.. y.K ini't^ t,>]..-l ' -^ ; ; ' • . f ■> I vV. ',. - . •• .-■ * t . i * * .. . <-«ii. 0/ • ■ » ,1.1 ,..!.» .J f . . I i |t!r;t ill,; 26 AN ACCOUNT OF THE i- , lAJ !. ,r »- ■• M ft l« V 0/ the Nobility. Expedience of XXX. 'T^HERE are in every ftate fomeper- dy of nohUi -■" fons who are diftinguifhed from the Jlowerrand*'^ reft by afuperiority of birth, or riches, or honours. privileges. Thefe perfons it will be fit and prudent to entruft with a greater (hare of the publick authority of the ftate than is allowed to the reft of the peopio, who are fo much their inferiours. For, if the privileges and pov;ers beftowed on theni do not, in fome meafure, keep pace with the other advantages they enjoy, but they are placed upon a level with the reft of the community in thefe refpeds, and allowed only a common vote in the eledlion of reprefentatives, and a capacity, in common with others, of being themfelves eleded to that office by the people, they will be apt to think themfelves hardly treated, and will confider 4 ENGLISH CONSTITUTION. V confider this plan of general liberty and equality as an unjuft degradation of their dignity and an infringement of thofe rights which they will efteem to be natural appendages to the other ad- vantages they poflefs. And they will not be interefted in the prefervation of fuch a form of government ; becaufe they will, with reafon, apprehend thit many of the publick refolutions that will be adopted under fuch a conftitution will be levelled againft themfelves and the advanta- ges by which they are diftinguifhed. In order therefore that they may be able to preferve thefe advantages, it is proper that they (hould be in- vefted with a greater (hare of the legiflative authority than is allowed to the other members of the community : and, with this view, it will The body of be convenient to permit them to form a diftin(ft to be invefted legiQative body in the ftate, with a power of 2if,eg5i^i°/ reiedins:, and rendering: inefFedual, the refo- authority of iutions or the other legiflative body above-men- tioned, which is compofed of reprefentatives cholen by the people; as the body of the people's reprefentatives ought in like manner to have fuch a negative y or power of rejecftion, with re fped to the refolutions of their body. XXXI. Aid I.;)' ':' 'l! aS- AN ACCOUNT OF THE ;l .'.i :'t .;: t ■»; ¥ • XXXL And thus the lej^iflative power of the ftate will be vefted in two diftindl bodies of men, namely, a body of nobles, and a body of the chofen deputies, or reprefentatives, of the people; which will have feparate places of meeting for the difoatch of the publick bufinefs, and will alfo be influenced by different views and aims, and have, in fome refpedts, different in- terefls from each other,- thoMgh equally con- cerned in the general welfare of the ftate. And fuch bodies are the two houfes of Lords and Commons that compofe the Parliament of Eng- land, . XXXII. Of the three great powers, which we have mentioned above, as neceflarily belong- ing to every civil fociety, the judicial power is, by the arrangement above-defcribed; removed fo far out of fight, and rendered fo incapable ofinfpiringthe perfons in whom it is vefted with ambitious or dangerous defigns, that it may al- moft be faid to be annihilated. For its exiftence is only temporary and occafional in the juries which are fummoned, at ftated times of the year, to try offenders againft the laws, and which are compo- fed, in part at leaft, of different perfons at almoft every ENGLISH CONSTITUTION. 29 every different feflion of the courts of juftice, or occafionon which they are fummoned. Such uncertain and, if I may fo fay, unidentical tri- bunals can never be fuppqfed to afpire to a do- mination over their country-men, and therefore can never become objedts of fufpicion or jeaHouly to the other members of the community. There remain therefore only the two other great pow- ers in the ftate, the legiflative and executive, which may be fuppofed to infpire their poffeflbrs with defigns againft the combion liberty. No\)v the poiTeffors of thefe two powers, (who, we have before obferved, ouglit to be perfedlly dif- tindl from each other,) may naturally be fup- pofed to be fometimes at variance with each other. And therefore it will be convenient that there (hould be fome perfon, or fome body of men, in the ftate, who may be able to mediate between them, and prevent them from making encroachments on the powers they, each re- fpedively, polTefs. Now this is a province which the body of nobles above-mentioned, (to whom we have already afiigned a diftinft (hare of the legiflative authority,) will be Angu- larly well qualified, and alfo naturally inclined, to undertake. And this will be an additional '•' ' •• advantage itr. 1 Of the ntWltj of the body of nobles in pre- ferving the balance of power be- tween the ex- ecutive magif- trates and the bodv of the reprefenta- tives of the people. .3* 30 AN ACCOUNT OF THE hy I:' {t advantage ariiing from the eftablirtunent cf fuch a body of nobles with a diftind fhare^ of | the legiflative power of the ftate, or a negative upon the refolutions of the aflembly of the people's elcdcd reprefentatives. . > _> tary The privile-. XXXIII. This body of nobles ought to be nobles ought, hereditary, or their privileges fhould be tranf- to e heredi. j^jf^jijig ^q thej^ children in the fame manner as their property is. This feems to be a natural • confequence of the eftablifhment of a body of nobility, or of the privileges allotted to them. For, fince the^e privileges are allotted to them on account of their being more diftinguiflied by their birth, and poflefled of greater riches, than the other members of the fociety, there will be the very fame reafon for allowing thofe privileges to their children, whofe birth will be at leaft equally honourable, and to whom their property will of courfe defcend. For I muft always be underftood to be fpeaking of countries in which the hereditary lucceflion oF children to the lands and other property of their parents is, by the ancient and deep-rooted cuftoms of of the people, ur.ivtrfally Lftablifhed. In thele countries therefoir, I lay, the diftindions and privileges of the nobility, as well as the property which i-«^ lent of lare- of\ pegative of the t to be tranf- nner as nataral body of them, o them Mhcdhy 'S, than will be ivileges at Jeaft roperty /ays be which to the :nts is, •ms of 1 theie IS and operty kvhich ENGLISH CONSTITUTION. 31 which is the foundation of them, ought natur rally to be defcendible to thieir children. / ^- 1- • .-' t And there is this further reafon why they (hould be fo. Since it is ufeful (for the reafons already mentioned,) thatfuch a body of nobles, with diftin(St powers and privileges, fhould exift in the ftate, it is, of confequence, to be defired that the faid nobles fhould b^ fo ftrongly attached to thefe privileges as to b^ always ready to ex- ert themfelves with fpirit, and ftruggle hard, for the prefervation of them. For otherwife thefe diftin<5tions and privileges (which are naturally odious in a free ftate, and apt to excite the envy of the other members of the community,) will be in continual danger of being loft -, becaufe the reft of the people, being jealous of them, will be often endeavouring, as opportunities (hall offer, to get them leflbned or abolifhed. To counter-a(ft, therefore, thefe endeavours of the people to deftroy the privile^jjes of the nobles, it will be necelfary that the nobles themfelves fliould be as eager and zealous on the other fide in the defence of them : and this zeal and attachment to the diftindions and pri- vileges they enjoy will evidently be much in- creaf'ed . '•'. ■.•.;'3 * ''t 3a AN ACCOUNT OF THE A: M'f There are fume particu- lar laws, fuch as thofe fur raifing money on the people, which ought not to take their rife in the aiTembly of the nobihcy, but only to be con fen ted to, or rejeded, by them. creafed by making thofe privileges hereditary in their families, ais well as the riches which are the caufe and ground of them. XXXIV. But, as a body of hereditary nobles, that are inverted with a diftindt ihare of the legiflative authority of the ftate in the manner above fuppofed, might be tempted, in the ufe of that authority, ^to attend too much to their own particular iftterefti;, and to negle<5l thofe of the people, it would be neceflary to rcftrain • them in the ufe of this legiflative authority, as to the manner only in which they fhould ufe it, withrefpedl to fome of the more important adls of legiflation, in the procurement of which the executive ma* giftrates would be deeply interefted, and would therefore be likely to endeavour to obtain the confent of the legiflature to their eftablifhment by bribery or fome other kind of corruption. Such, in a more efpecial manner, are the laws which are pafTed for raifing money upon the people. In thefe and, perhaps, fome other very important ads of legiflation, the body of the nobles ought not to be permitted to take the lead, but only to confent to, or reje(5V, i< ENGLISH CONSTITUTION. 33 rejedl, the propofitions that are fent to th^m from the other branch of the legiflature, which confifts of the people's reprefentatives : or, in other words, they ought not to exercife their enaSlive power, but only that which we may call xh€\v right of negation. XXXV. By the words ena^ive power I un- derftand a right of pofitively ordaining, or eftablifhing, any thing by one's own authority and '"f one's own accprd and free motion, or of altering, or amending, that which has been fo ordained, or eftablifhed, by another. And by the right of negation I underftand the right of annulling, or making void, a refolutioii taken by another : which was the right that belonged to the tribunes of antient Rome, And> though it may feem at firft fight that he who has the power of rejedling a refolution made by another muft neceffarily have like^ wife a right of approving it, yet, if we con- iider the matter carefully, we (liall find that an approbation fo given is nothing more than a declaration made by the giver of it that he does not on that occafion chufe to make ufe of his right of rcjc^ion, or negation y with rc- D fpcA ' ! ■ '• if.'*!': 3* AN ACCOUNT OF THE fpc6l to the matter in queftion, from which it is evident that fuch approbation is derived from, and grounded on, the faid ngbt of re-^ jedliotiy or negation, inftead of being the cfFe;5t of an original and pofitive right of approbation. ill '■",,.. rii,|r Of i' 'I' E'NGLISH CONSTITUTION. 35 ■ . ■ ;; ; .'! . ' •If-.., ,;:» •, «f ' r. , 0/* /^^ Executive Power. XXXVI. 'TpHE executive power ought to y],|j pn^vet A be vefted in a kine : becaufe ^^R^' !" '^^ *^ veiled m a this branch of civil authority, which there is kmg. ahnoft always a neceflity of exerting on a fud- den and without deliberation, can be exer- cifed with more convenience, and more effica- cioufly, by one perfon than by feveral. The reverfe of this takes place in matters of legif- lation : for they are of a nature to be managed with more ability and fuccefs by the joint deliberations of feveral perfons than by the will of only one man. XXXVII. And, if, inflead of vefting the Tnconvemencil . of ve«in;- its executive power in a king, the nation were ii a bou> o^ to place it in the hands of an executive council '"'^"' °^ ^ D executive conflftino; council ,;':t: I'l-V-^-i 36 AN ACCOUNT OF THE confifting of perfons taken out of the legiflative body of the ftate, they would thereby deftroy the general liberty ; becaufe the two great powers of government, the executive and the legiflative, would then be united in the fame hands, as the fame individuals would fome- times actually be, and always be capable oT becoming, members of both the legiflative and executive bodies of the fl:ate. •ft ififc. •',1 m The legiHa- XXXVIII. If the legiflative body of the hiTftateouahl ^^^^ ^^^^ *^ continue for any confiderable be frequent- Jcngth of time without aflembling for the pur- poles of Its cftablifliment, there would be an end of the publick liberty. For, if fuch a fufpenfion, or intermiflion, of the exercife of this neceflary authority by the body of men in which it was legally v<^fted, were to take place, the confequence of it would be one of thef? two fatal events : either the legiflative autho- rity would not be extrcifed at all, and no new laws, or regulations, would be made, notwith- /landing the publick exigencies which might require them ; which would be a ft?,5.te of anarchy j or thefe neceflfary laws, or regula- tions, would be made by the executive ma- giftratc : j;nglish constitution. 37 giftrate : and in that cafe the executive magif* trate would become the abfolute fovereignof the flate. The latter of thefe events took place, in a great degree, in England in the former part of the reign of king Charles I. when, after dilTolving his third parliament in the year 1629, he forbore to call another till April, 1640, and governed the nation in the mean while by his royal edidts and proclamations, to which he gave the force of laws, even fo far as to raife money upon his people by virtue of them, which is the highefl and moft diffi- cult exertion of the legillative authority. XXriX. On the other hand it would not ^'' j' "^^ noc to conti- be of advantage to the publick that the aiTem- ""« ^'^^x* blies of the legiflativc body fhould never be without any intermitted. Such a continual attendance i""''"^'^'^"- would be inconvenient to the people's repre- fcntat'ves by taking them too much from the care of their private concerns : and it would alfo too much engrofs the attention o th- executive magiftrate, who would be a n to negleift the important duties of his own de- partment, ill order to watch the motions of the legiflative body, and defend his own pre- D 3 rotative?. 38 AN ACCOUNT OF THE tl: 1| rogatives, and his right of exercifing the ex- ecutive authority, againft its encroachments. .t'TC \;f *"* XL. And fa^rther, if the legiflative body was to continue always affembled, there would be fome danger of its becoming a permanent council, whofe members, when once chofen, would keep their feats- for life, without any further dependance on the people at large, and that there would be no more eledions of new members except upon the vacancies caufed by the death of the old ones. And if this were to be the cafe, and the legiflative body fliould once grow conxpt, fo as to purfue a private \ -intereft of its own diftindt from that of their tronftituents, the mifchief would be abfolutely And it ougiit incurabk. When the whole legiflative body anew by the is elcdcd anew from time to time, and .the people ,om pei-joij of it^ cohtirtuaAce is not' very lonsr, time to time, •» y o' and with only the people, if they difllke the proceedings of moderate in. /- • i i /- i i i r tervaisofcon. onc iucti body, may realonably hope for a tinuvice. different line of condud from the next» and, in that hope, may bear their prefent hardships with patience: but, if the very fame body of men was always to continue in poflTeflion of the legiflative authority, and their temper and '- meafures • .. .V , ( 1' ENGLISH CONSTITUTION. 39 meafurej* were once to became corrupt, ot unfriendly to the interefts of the people*, the people could never entertain any hope that they would change th^nrt; and, in confe- quence of this gloonny fitaation, they would cither break out into violence to procure re- drefs, or link into 9 ftate of indolent fub- miffiofl, and lofe all fenfe of liberty and pub- lick irttereft. ■;::!• (Ji :•.•„:;'! ru'vfr :i XLi. The legiflative body ought not, when '^^^^P^^^"/'' chofety, to meet of its ovvn accord. This is legiflative bo- a confequence of its being a political body> it refted in°the being the nature of fuch bodies to aft only in^^*"£' a joint man^ner when they are legally afTem- bled fbt that piirpofe. They cannot therefore ' exp^eft' their refolutidn to be alTembled before theyaftually^reaffembled. And, if they could befcrppofed :^> have aright to aflemble of thteir' o\Vn accarJ, ;v r> Ight be attended with great inconvenience' m6 coitfufion. For, let as' fuppofe that fome of the members of this* • This Inconvenience was complained of in England H^tn refpecEl to the fecond parliament ot king Charles the II. < called the }: t Ttoner Parliament, which was called in theyeaf j l66it and cQ: tinned In being till the year 1679. D 4 body. 1) 40 AN ACCOUNT OF THE ^^" body, and even a confiderable number of them, but lefs than a majority of the whole body, were to aflemble at any time in this manner, or of their ov/n accord : could this alTembly be conlidered as the whole legiflativc body, or as legally pofTefTed of the powers of the whole body, while the greater part of it chofe to i\:^.j away ^ certainly it could not. And even if the meiL ' fo met were a ma- jority of the whole body, they ought not to be fo conlidered, unlefs there were fome known and eflablifhed, legal, method of in- forming the other members, that fuch a meet- ing was intended to be held, and that they Avere defired tobeprefent at it; that is, unlefs tlierc were fome method appointed by the law^ or by fomething elfc than the prefent inclina- tions of the individual members of the body, to procure fuch an aflembly of it. Without fuch a provilion it muft be perfectly uncertain whether the part of the legiflative body thaf was alTembled, or the- qther that ivas noff ought to be confidered as being legally vefted with the powers of the whole body, or rather it might be juflly concluded that neither of them was fo. This ENGLISH CONSTITUTION. 41 This obfervation, however, relates only to the firft meeting of the members of the le- y gif^-itive body, but does not extend to their fubfequent meetings. For thcfe might well enough be determined by their own refolu- tions at the clofe of their firft and every fol- lowing meeting without either the abfurdity or the inconvenience above-mentioned ; or, in the language ufually employed in fpeaking of the Englifh parliament, the power of proroguing the legiflative body from one time of meeting to another might be exercifed by themfelves. But, if they had this power of Thepowerof proroguing themfelves, it would be attended \l^'^^"^ ^* with another very great and dangerous incon- dy.aiteriiiw* -^ . . . , t 1 been conven- venience. For it might happen that they cd, ought ai- would not chufeto proroeue themfelves at all, ^o^obcvdied . . 1" the kino. but would continue their meetings without, any intermiflion, which would increafe their importance in the eyes of the people, and ; give them an opportunity, if they entertained fuch a dcfign, of encroaching on the prero- . gatives of the executive magiftrate. An example of this danger has been (qqu. in the hirtory of England, when king Charles the i ft confented to make the parliament that had met 'AN ACCOUNT OF THE uu; ,._■.■• , ^ ' {iiiM.-.-.v.:. . • it Jii^'Jn , ." met otf ffie' 3 d' of* November, 1 640, incapable of being diflblved, or prorogued, without their own cOnfent. The^v frOm that momefvt were continually making thofe frefli denf^ands and ehcroachmerits on the ifoy^l authority, which, in little rtiore than a year's time,, brought on the great civil war between the^ king and the parliament. ^ '< > ^ ^ •'And, belrdds this great danger thkt might' arife to the prerogatives of the crown from^ luch a power in the legiflativc 'ai&' My of* ' appointing their own times of meetir; j, there' is another inconvenience that might refult from* " if." '*~ There arc fome times and feafotis which' are touch more convenient than others for the quiet and fober bufinefs of legid^tion ; — when neither domeftlckdifcouteiiti ahd ditfeft- fions have too much ififlamed the toiA'i^ of' the people, nor the neceffaVy ' preparations " againft the attempts of foreignf enemies have too much engaged their attention and concern to leave them at liberty to deliberate concern^ ing the improvement of the laws. And of ' thefe times and fe<1ibns the execiitive magi{^ trate, from the intimate and exa^ft knowledge ' of hht' ENGLISH CONSTITEFTION. 43 of all the circumftances of the ftate with which the exercife of the executive authority muft necefTarily furnifh him, is a better judge than the legiflativc %ody. it 4g*< iwrefofe proper that the executive magidrate, or king, (hould be entruited with the power both of appoint- ing the meetings of the legiflative body, and of deterniining how long theyiSiall coiitinii^ or, in other words, ef hotb Mouvening andpro* rogning it. -1U on'.. ■'"'JJO vMr,\^.^Ml\ 'Jv'ij?.037.*J HH^'^^ .IIJX .-r: -.>iO;: v.! iwv7 Vi.v.':i j:.ii; .0 '(JiJotfjD;^ .uiJ <)Qn .uu^j.I •,i..fi wri) ,,-r.v-.I ;^ni>:,']ni *b i3V/oq ulofiv/ adi ■:adij i,iiJ iiK fflifo^ff: ll;'ili 5£,Hj v/lI i.- o^i^m i ,:• 'jI -a :fl 7 :3V Lii'; <•. li.it Oiii i.; c;iiu;j7fl{^t(n • < » • ii . , »; . » r . ; i; • ;■ J:)u-'r: i' ; ih offj' ,'. d .UIJX . , , * ,- > • ( I T » " ■ .' I • , ' ■ ' : T ■"' 1 ■ - • - ' Of 44 AN ACCOUNT OF THE r» Vil- li. I ;li.; . :•:.) ,'. V Of the Negative of the King $r '- Executive Magiflrate. The king XLII. ^THHE executive maglftrate ought rf.llL'w *I^ -■• to have a negative on the refo- a ntgatfot On ^ the refoiutions lutions of the legillative body. For, if he has ©f the legifla. , ,7 ^ , - , ... , , _ tive boay. not, the authority of that body vs^ill be abio> lute : becaufe, if they are thus inverted vvith the whole power of making laws, they may make a law that (hall abolish all the other magiflracies in the flate, and veil their feveral authorities in themfelves; which, according to what has been already obferved, would be attended with the immediate ruin of publick liberty. XLIII. But, though it is neceflkry that the king, or executive ma^iftrate, ihould have a ;' . negative ,;l -' ENGLISH CONSTITUTION. 45 negative on the refolutions of the legiflativc But the legir- body, it is by no means true on the other hand ought not to that the legiflative body ought in like manner Jjte*otttherer to have a negative on the afts of the executive foiutions tt- magiitrate. For the legmative and executive kingasexecu- powers are eflcntially different from each other Jiate."*^ * in that very circumftance that makes it ne- ce/lary to give the pofleflbrs of the latter a negative upon thofe who are entrufled with the former. For the legiflative power is in its nature abfolute and unlimited, and thofe who poflefs the whole of it may make what changes they think proper in the conflitution of the government, whenever they pleafe, and thence arifes the neceflity of diftributing it into different hands, and particularly of al- lotting one fhare of it to the executive magif- trate. But the executive power is naturally limited in its extent ; as it can only be employed in executing thofe laws which have been enadled by the legiflative authority, and in conducting thofs departments of the govern- ment which the legiflative authority has com- mitted to the care and management of the executive magiftrate. Beyond this it cannot proceed a flep without a manifeil breach of the AN ACCOUNT OF THE II m 1 1^7 I! .'il rr ■ * the} fonftitution. And confeqnently there if ^. ' no n^ceffity that it fhould be further limited -*: '. " and ftackkd, in every particular exertion of .».' I. . it*, by an application to the legiflative body for their concurrence. And further, if it was - : • to be fo limited, it would thereby be rendered incapable of performing the ads of govern- ment which properly belong to it, which are for the moft part ncceffary to be done with fpirit and difpatch upon the fudden emergen- ces that call for them. And therefore it muft be kft free to exert itfelf without any inter- ruption from the legiflative branches of the government. , fj^J'*j"J'^g^^*!JJ And here we may take occafion to obferve power of the that the powers vefted in the tribunes of the tribunes of i • i n the people in people in the Roman commonwealth were aauent omt. jjjgfefQfg jqq extcnfivc, becaufe they not only enabled thofe magiftrates to prevent the palling of new laws which they might think perni- cious, but likewife to controul the ads of executive power attempted by the otlier ma- giftrates and by the fenate ; by doing which they often brought the flate into a very dan- gerous iltuation. ... XLIV. But I^NGLISH CONSTITUTION. 41 XLIV. But, though in a free flate it is not fit that the leg'flative body fliould have a right to impede the executive magiftrate in the exercife of his lawful authority, it is fit they fliould have a right to review and inquire into the manner in which that authority has been exercifed, and whether the laws which they have enaifted have been faithfully put ill execution, and, if they have not, to cen- fure and puniili the perfons who (hall appear to have been deficient in their duty with re- fped to them. This is a right which has often been aficrted and exercifed with good effeiSl by the Englifh parliament; infomuch that the Houfe of Commons has frequently, from the excrcile of it, been fliled the Grand Inqiiejl of the nation. And in this rc'*pedl the Englilh form of government has greatly the advantage of the antient governments of Crete and Lacedacmon, in which the executive ma- giilrates called Cofmi and Ephori were not lia- ble to be called to account for the wrong things they had done in their admlniftration. But the legif. laiive body ought to have a right of in- quiring into, and punilh '' irg, abui'esia the exercirc of the executive power. , /^|. XLV. But, though the legiflative body of the flate ought thus to be invefled with a power 48 AN ACCOUNT OF THE \]b: lit "it i! (1^ Bat with an citception oi Che condud and perfon oi die king htm- fclf, which maft be con. lidered as /a- erei^ or not liable «o cen- fuiecrpuuiib- omt. power of examining the condudl of the executive officers of government, and of punifliing the abnfes of authority which thofe officers (hall be found to have been guilty of, yet this muft be underftood to relate only to the inferiour officers of that branch of the government, and not to extend to the king, or fupream executive magif- trate himfelf. His perfon iiuft be ccnldered as facred and placed above the reach of all pu- niffiment or coercion ; and confequently his con- du£l muft be fo too. This exemption (which at firft fight may appear to be unjuft,) is necefTary to the prefervation of the conftitution. For, as the exiftence of an executive magiftrate, that is not dependant on the legiHative body, has been (hewn to be eflential to the eftablifhment of publick liberty, — that the legiflative body may not become all-powerful in the ftate, and, in confequence, opprelTive, — it is evident that from the moment the king, or fupream executive magiftrate, was either condemned, or called to anfwer for his mifconducfl before the legiflative aflembly, (if fuch a proceeding were allowed,) there would be an end of all check and controul upon the latter, and confequently of all publick liberty. XLVL ENGLISH CONSTITUTION. 49 XLVI. If fuch a proceeding were to be authorized by the laws of any ftate, fuch a , ftate would not really be a monarchy , by what- ever name the fupream executive magiftrate of it might be called : but it would be a re- publick without liberty j fuch as are fome of the modern commonwealths of Italy, as we have already obferved in the former part of this difcourfe. Yet, notwithftanding this neceflary jacrednefs of the royal perfon, it muft fiot be imagined that the people would be abfolutely unable to procure redrefs for the ipju they had fuffered from the abufes of the cAccutive authority. There are other, The minifter§| and fitter, vidims that may be facrificed to other perionsJ their refentment. When a king abufes his fift°d^jhe\d power, he has always fome accomplices in inanybreach- hi . 1 \ •/- esot theluws,!! IS milgovernment, who either advile or exe- or other peri cute the wrong meafures he purfues. Thefe !?' ^^^ ™^,*'^ o r lures, are tlu men are the proper objeds againft whom the ^ > perobicfts| people fliould dire I the perfon who is accufed as a criminal and I i brought to trial. XLVIII. Men of fuperiour rank and fortune the firft .C€, they 11 1 1 • •aid have a iu a ftate are naturally the objects or envy to Sa^ion ^to ^^^^^ inferiours ; in - nfequence of which, pflFences jf Vvhen they are acculeJof crimes, they were mmitted by ' • r i :iui>er8 of to be brought to trial for them before judges own 0- ^^ ^ much inferiour condition, they would be more ♦i- :t- .. .| ENGLISH CONSTITUTION. 53 more in danger of being found guilty of the crimes charged upon them than if their rank had been lefs diftinguiflied ; and they would not enjoy the privilege, which, in a free government, is allowed to the meaneft of the people^ of being tried by their peers. To avoid therefore this injuftice, it is proper that, when a nobleman commits a crime, he Hiould not be tried by the ordinary tribunals of the nation, or by juries of men who are not noble, . but by that part of the legiflative body of the nation which is compofed of nobles. This is the firfl exception to the general maxim above-mentioned, ** that the judicial authority ought not to be united with the legiflative." XLIX. In the fecond place, it will fome- Secos.diy.thcy times happen that the letter of the law, (which court^ 0° ap! may be laid to be at the fame time both clear- P'^^* *" J^^% •' ^ jn Jitters from ^f" lighted and blind,) is too flrict and har(h in the dcdfions I its decifions, fo that every body ^nll wi(h courts of Uw^3 that in thofe particular cafes it could be re- laxed. But this cannot be done by the judges of the nation. For they, being (as we have already obfcrved,) only the mouths that pro- nounce the words, or decifions, of the law, E 3 (Jik« 54 AN ACCOUNT OF THE !' (like mere inanimate inflruments, or conduit'^ pipes, through which it pailes,) have no power to relax or modify it. And hence arifcs a kind of necefTity for veiling this power in other hands. And no body of men in the Aate feems fo ht to he truPicd uyth it as that part of the legiflativc body of inf nation which is compofed of the nobles, and which we have juft now feen to be a neceilary tribunal of juftice for another purpofe. They will be better qualified than any other fet of men in the nation, to exercife this ufeful, but deli- cate, branch of judicial power, of relaxing the law in favour of the law itfelf, or depart- ing with caution from the letter of it in order the more fully to preferve itsfpirk. J fhJHly. they ^* And, in the third place, it may happen f iSughttohave that fome eminent fubied in the flate who i; P I criminal ju- ^ ,, , [ ^ W\t\\oTi to ihall have been employed by the king in the offenders, ^^^ management of publick affliirs, (hall have upon accufati- made breaches on the publick liberty cr other I Diis, or im- . , r 1 . [^ peachments rights 01 the people, and comnntted crimes l#i Drouchtbythe r j j t • i p^ other legifla- ^^ ^ dangerous and uncommon nature, which k^vebodyc(^. the ordinary courts of jufticeedablifhed in th «!■• lifting of the ^ "^ •' e i: peojpie's re- nation ihall not know how, or not dare, to i-v.prefentatives, 'even though take I?; fuch offender? fhould not be members of the body of nobles. ENGLISH CONSTITUTION. 55 take cognizance of. In this cafe therefore, The rcafon as well as in the two former, we muft have jj|,„ '^ ^'^°^^ recourfe to the legitlative body of the nation. And here it will be proper to employ both parts of that body for this important purpofc ; but in diliindt capacities. The body of eleded deputies of the people ought not to be cm- ployed as judges on this ocCalion, becaiife they, are the reprefentatives of the people, who are the parties injured and the plaintifxb in the fiiit ; and juftice will not permit the fuue pcrfons to be both parties and judges. They niufl: therefore a(5l only as accufers. And the other branch of the leo;illature, which is com- pofed of nobles, muft ho the judges on thefe | occafions. This will be necellary for thefe two rcafons. For, in the firfl place, it would be below the dignity of the great legiilstive ; body, which is compofcd of the reprcfencatives ^ of the people, to appear as plain rifFs in the ordinary courts of juflice, and bring their im- portant accufatlons to be hc.:;ed and deter- \ mined by a few jurymen. Av\v\y fecondly, fnch a tribunal, if it were invefted with this power, being composed of perfons who, ai well as the houfe of reprefentaiivcs, .ire chofen E 4 , out 56 AN ACCOUNT OF THE if* 5 I « |i':*J rWJ. out of the body of the people, would be apt to entertain the fame popular prejudices and difgufts againft the accufed pcrfon as the faid reprefentatives do, who are his accufers j and even, if, upon hearing the evidence, they fhould be inclined to think him innocent, they would hardly dare to give a verdi(5l in his favour in oppofition to fo powerful a body of accuf- ers. For both thefe reafons therefore, to pre- ferve the dignity of the people, and to fecure a fair trial to the perfon accufed, it is neceffary that, on thefe occafions of offences committed againft the ftate, the legillative body that is ccmpofed of the reprefentatives of the people fhould bring their accufation before the other legillative body, which is compofed of nobles, who have neither the fame interefts to byafs them, nor the fame palTions to millead them, LI. This is an advantage which the Englifh government has over moft of the antient com- mon-wealths, which were liable to this great abufe, " that the body of the people adled both as accufers and judges." 0/ ENGLISH CONSTITUTION. S7 Of the Manner in which the Kuig^ or Executive MagiJIratej ought to take a Part in the Exercife of thi Le^ giflative Authority > LII. 'TT^HE executive magiftratc ought, as A we have already obferved, to take a part in the framing of new laws by virtue of what we have called above his power of re- jedion or negation, or, as it is called in Englifh writers, his royal negative ; without which prerogative he would be in danger of being foon deprived, by the legiflative body of the nation, of all his other prerogatives. But the legiflative body muft not in like manner take a part in the exercife of the executive power : for, if it did, the independence and free agency of the executive magiftrate would be thereby deftroyed, and, with them, his adi- vitv and utility to the publlck. LIU. If The king ought only to aflent to, or rejeft, the laws propoled to him by the legiflative bo- dy, without making any alterations ia thea^. 59 AN ACCOUNT OF THE i"5;V •^■' 11 if inconvenien- LIII. If the king Were to take a more aiiTc 'from a adive part in the framing of new laws than IT%ZZI ^^'^^ ^^ ""'^'^^y ^^l'e»^i"g to them, when pre- in this matter, pared by the legiflative body, without makmg any aheration in them, there would be an end of publick liberty. For, if he were either to propofe the laws themfelves at iirfl: to the le- giflative body, or to make alterations or amendments in them, when they had been iirfl prepared by that body, his great dignity and authority would over-awe the legiflative body, and induce them to give their aflent to the laws, or alterations, fo recommended, even though they ihould not really approve them : and thus the legiflative authority would come to be united in foci, though not inform, with the executive power, or to be vefl^d, fubllantially, in the crown ; which we ob- ferved in the beginning of this difcourfe to be incompatible with publick liberty. Yet it is r.ecelTary that the king fhould take fome part in the framing of new laws, in order to de- fend his prerogatives againfl the encroach- ments of the legiflative body. And therefore it is proper that he fliould ad in that matter by means of his royal negative, or by Amply, either ENGLISH CONSTITUTION. ^^ citlicr rejecting, or aflfenting to, the laws vvliich are propofed to him. LIV. In antient Rome the executive power of the llate was lodged partly in the fenatc and partly in the coniuls and other magir- trates. But neither the fenate nor thofe ma- niftrates had a neo;ative on the letjiflative refo- lutions of the people, though the people had fuch a negative on the refolutions of the fe- nate. This was a fatal defedt in that govern- ment, and was the caufe of its final ruin. The people's po^ver of legillation, being un- der no controul from the fenate, came at laft. to be fo outrageoufly abufed that it produced, thofe violent commotions which brought on the civil wars, and ended in the eftablifli- nient of a military and abfolute monarchy in the perfon, firfl of Julius Cojfar and afterwards of Ocftavius, or Augullus, andthe fucceeding Roman emperors. The wart of u right in the CMTiilive nia- [;i!li.-it;.r. at Komcto i-iJt a negative *'ii the legiilatuc refolutions of the people was produdtive of great evil*-, in that coai- monwcalth, and, atlall.or it» total ruitu LV. This therefore is the fundamental -^ fuirmarir view ot thj conflitution of the government of which we manner in r 1 • rr-i 1 -n >.• 1 • which the Ic- are Ipeaking. liie Icgillative power being aUh^iyc au- lod;^ed in two feparate bodie^ of men, each V'^'^y "^ 'i'^ of exeiciftd in the lvrp.Ii'h iiyverniiitnt. fe AN ACCOUNT OF THE •'.■tt< ■.. 11' « An objeflion that may, per> liapii, berosde to fucb a dif. tribution of the legillative aiithohtj. ■v'i * The anfwcr ) tothefaidob- : je^uoa. of thefe bodies will be a check upon the other by its right of rejedHng and annulling the other's refolutions ; and both, when they agree with each other, will be controuled by the negative of the executive magiftrate, as the executive magiftrate will, in his legiflative ca- pacity, be controuled by the legillative body. LVI. As thefe three powers will mutually counter-ad and balance each other, it may be thought, perhaps, that they will produce a ftate of rert, or inadlion, in the political /o- ciety that is governed by them ; juft as, in the doflrine of the mechanical powers, it is found that three weights, that draw a body in three different dire(fiions, will, if they are properly proportioned to each other, exadtly defeat each other's operation, and preferve the body in a ftate of reft. And in both inftances this will really happen, fo far as relates to any re- lative motion in the diredtion of any one of the three powers or weights : no motion will be produced in fuch a direction. But it is poflible in both cafes that the whole fyftem may be carried forwards by a motion common to all its parts, occafioned by fome external force. And %fi m m ENGLISH CONSTITUTION. 6i And this will really happen ip fhe cafe of our threefold political fociety from the neGeffity which the natural courfe of tilings will impofe upon its conftituent pans to mwkQ fome mo- tions, or adopt lome publick meafures. Such motions will be made, or fiich publick mea- fures adopted, with the joint content and concurrence of all the three parts, and with- out any change in their mutual relations to, and dependance on, each other. U.^;. LVII. As the executive magiflrate, in this government, takes no part in the bufinefs of making new laws any other way than hy the uie of his negative, or power of rtjefting, or aflenting to, them, he cannot with propriety take any fhare in the debates of the other branches of the legiflature concerning them. And it is not even necelTary that he fliould ever propofe any new law5 to thofe other branches of the legiflature. It is fufficient that he has the power of rejedling, or dif- allowing, the rcfolutions tikcn by thofe other branches, when he difipproves them and wifhes they had not been taken. The king, dt excciiavema- ^iitnitc, ought not to take any (hare in ths debates of eitlicr of ths k'^iHacive bo. died cuiurern. ing any »cuf laws. LVIII. In "m ti w ■ 11 62 AN ACCOUNT OF THE • pifrtronc.- 0^- LVIII. In fomc of the commonweal tlis of u>tl rdpijit antiquity, in which the people did not chufe Irom Ionic of . , ^ ,. . -i- 1 1 •/• «he common- ^ oody OF rcprclcntativcs toexerclic the legif- wcaithsofan. ]ative Dovvcr lor them, but exercifed that power themfelves in a hody, it was neceiTary that the executive magi Urates ll^.ould have a right of propofmg the matters that were to be the fubjeds of their difcuffion, and of debat- ing them with the people; as, from the great numbers of men that were alTembled on thofe occafions, and the extreme uniitnefs of much the greater part of them for the dilcuflion of . publick affairs, there would otherwife have arifen a dreadful degree of confuii^n in their proceedings every time they had met. But this neceflity can have no place in a govern- ment, like that of England, in which ihe people have delegated their power of legifla- tion to a body of reprefentativcs. ■ ); ■r;i I.- Of ■ *;. t KNGLISH CONSTITUTION. 63 Of the Laws made for hnpofing Taxes on the People^ LIX. TF the executive magiftrate were to take \i is more -■• an adti ve par t i n the impofition of taxes poper"^ th 'it on the people, or to do any thine more in ''^"^ ^ "S. «r * ^ . . executive that bufinefs than (imply to give his aflent to majiiiratc. fuch laws as are made for that purpofe by the adtivc pat m Fople's reprclentativcs, there would be an ^^'^'^^'^'j^'^sp* 1^ r » ^ any laws that end of publick liberty; becaufe the executive remade (or magiftrate would thereby become poflefled of ofuxcb. the legiflatlve authority of the flate in that which is the moft important branch of that authority. The encroachments therefore of the executive magifirate in this particular ought to be guarded againft by all lovers of publick liberty with a fingular degree of jcalouly. , . . , * 1 LX. If vf: i um -"«•( I; fi -f 64 AN ACCOUNT OF THE ^nd the taxes LX. If the kgiflative body of the flate was raifed by the - t 1 n- r ^ r legiiiativc bo- to provide the necellaiy taxes for the lupport %n^l^f^^ll'. ^^ government once tor all by a perpetual vcrnnient. law, inflead of doin(. i; 66 AN ACCOUNT OF THE ■A quantity of property in the country as may place them above the temptation of fetting up a feparate intereft of their own, diftinfl from that of their fellow-fubjeds, and may make them zealous for the prefervation of the laws and liberties of their country, by which alone their property can be effe^ually fecured j and to eftablifli even fuch an army only from year to year, fo that they may never be induced to confider themfelves as a permanent body, inde- pendant of the civil authority of the ftate ; which was a precaution long obferved at Rome, where the foldiers were inlifted only for a year : — or, in the fecond place, if the foldiers are inlifted for an indefinite time of fervice, and arc men of little or no property, taken from the loweft clafs of the people, it will be necef- lary to rcferve to the legiflative body of the ftate a power of dilbanding the army whenever it thinks fit ; and it will likewife be neceiTary to take care that the foldiers (hall always, except in time of adual fervice, be quartered among the other fubjedts of the ftate, fo as to live in the fame man- ner as they do, and to form alliances and other conncdions with them, and to contra<5t, as far as poflible, the fam? habits and ways of think- ing. ENGLISH CONSTITUTION. 67 ing as they are governed by : in order to which they ought never to be encamped in time of |>eacc, nor ftationed in barracks or in fortified towns. LXIil. Thefe precautions are neceflary to prevent, or leflen, the prodigious dangers to publick liberty which a rife from the eftablifli- nient of an army ; which are indeed fo great that one would be tempted to wi/li that an army fliould never be eftabliflied. But it will fome- times happen that the publick exigencies make it neceflary to run this rifle, and venture upon the eftablifhment of an army. Now, when thisun- "^'^^n " ar» happy neccuity ariies, and the army is once railed, it muii be 00- it mufl: not be governed by ihe orders oF the by "tiic khi^, lei^iflative body of the ftate, but by the execu- ^"^ e^i-ciitive "^ . . . .' nugUlratc; tive magiftrate. This ariles from die very na- ture of an army, as its ufe and excellence de- pend chiefly on the vigour of the counfels by which it is governed, which requires fpced more than deliberation, and therefore can bet- ter be exerted by the executive magiflrate dian by a numerous aflembly of men, fuch as die; legiflative body of the ftate. LXIV. But there is another and a Wronger rcafon to be given for this mann'cr of difpofing; F 2 oli M JiRr, f< r F J* V^^i I 68 AN ACCOUNT OF THE Othcrwife of the Command of the a- uiy > which is, that there will be . • , , ,- ■ ^ rcafon to fear ^^ ^'^ ^^^^ Onlv mC;ins oi preventing the govern- that the army ij-jcnt from bccominiT whollv niiiitmv, or the will ufiirp the '-^ whole power armv from ?.(]liinin'.^ to themfelves tlie whole of the Il.itc. ' ., , . ':."., . . . , power cl: the ilatc. i ni;^ is a cotiiequcnce that, without Inch a precaution, would ntceflarily fol- low from away of thinking that is natural to the generality of mankind. They have commonly Riorerefped for qualities of an a^fiive kii)d,luch as courage, a fpiritot enterprize, and bodily ftrength, thai! for thofe of a contrary nature, fuch as cau- tion, prudence, and vvifdom in deliberation. The foldiers of the army, therefore, under the in- fluence of this general way of thinking, will refped their own otiicers, <.vho may be fuppofed, for the mcft part, to polTeis the former qualities, more than they will a fenate, or affembly of civil magiftrates, who excel only in the latter. Nay, they will probably defpiie fuch an aiTembly, as being compoled of a parcel of helplefs, timc- rous, old men, unworthy to command them, and will confequently negled: and difobey any orders they fliall receive from them, and re- gard only thofe they fliall receive from their own officers. Aiid thus by vefling the command of the army immediately and folely in the legif- lative W-- ENGLISH CONSTITUTION. 69 h(we body of the (late, the very contrary effc<5t to that which would have been intended by fuch a regulation, would be produced ; the liberties , of the nation, inftead of being preferved, would, be inflantly loft, and the arrny would bcco^ie the abfolute mafters of the ftate. .. ' , - LXV. It is true indeed that there have been fome common-wealths in the world in which this event has not taken place in confequence of the caiifc above-mentioned, but the army of the ftate has continued to pay obf^dience to the orders of its legiilativc ailembly. But where- ever this has been the cafe, it has been the effect of fome very extraordinary and peculiar circum- ftances which have prevented the other and more natural event. In fome of thefe inftar^es tlic governing fenate, or council of the common- wealth, has taken care to keep the different bo- dies of which the army has been compofed, quite feparate from each other, widiout any conveni- ent opportunities of conferring or communi- cating with each other ; by which means it has become difficult for them to unite in a common caufe againft their employers : and, further, the feveral bodies of which it has been compofed, have been Somcc.\-ccptl- ons may be found to the lart obfervati- on concerning the danper of the army '5 uCurping the whole power of the Hate. Peculiar ck. cumllances, by which fucH exceptions may be ac- cjunted ior. m PS 7© AN ACCOUNT OF THE lit mi I"' -If *^ If ^11 hi I been raifed in different provinces, and have been liiadc dependant on, or fubjed to, the civil powers of the leveral different provinces to which they refpedively belonged ; by which means the men who have compofed ihefe different bodies have had as little original acquaintance with each other as poflible, and have been under Icfs temptation to aifociate together and engage in any common defign than if they had been connected together by a long and familiar intercourfe and a fubjec- tion to the fame governing body : and, laftiy, thefe commonwealths have been pofTeficd of ca- pital cities whofe fituations have been fo advan- tageous and flrong by nature that there has been no danger of their being furprized by a fudden attempt of an enemy, and confequently no nc- ceffity to admit garrifons into them for their defence in time of peace. The republicks of A'cnice and Holland are inflances of common- wealths that have pofleiTed thefe advantages j and particularly that of Holland. For there the fituation of the places in which the troops are quartered is fuch that, if the troops were to re- bel againft the (late, the government would have it in their power to drown them by laying thofe places under water, or to flarve them by r. ■■ cutting The pnuci-l pics ofthe En^ gli/h coaifUto. tion are dc\ ri\red from die manners of the ancieat Gcrnuas. ENGLISH CONSTITUTION. 71 cutting off the means of fupplying them with provifions, they being never quartered in any towns which, by their fituation in fertile diftrids of land, command « fufficient quantity of provi- fions for the fupport of their inhabitants. So that thofe garrifons depend intirely upon the govern- ing powers of the country for their fubfiftence. LXVI. I have now finifhed the fketch I pro- pofed to give of the conflitution of the Englifh government ; the leading principles of which have been borrowed from the pradice of the ancient inhabitants of Germany, as any one will be eafily convinced who fhall read with attention the excellent account, given by Tacitus, of the manners of the ancient Germans. This noble l)'ftem was, therefore, difcovered in the woods.* LXVIL' As all the productions of human wiA. Of the fatwe I , , . ..Ill- r tleliruetifm of 1 dom and contrivance are liable to decay in courlc the fuc oio- of time, this admirable c^overnment, of which we S'^"!*"", ^ have been treating, will, one day or other, come to an end, and the liberty of England will be loft. This has been the fate of all the other * De 7n'inor':bus rebus y fays this judicious author, prlii' clpes cotifultanty de 7najorihui cmna j ita tamcn lit ea qiioque quorum penes phbem arbitr!U?n cj}^ upiul pr'intipei pratrac- ttntur, . : ■ govern- t« AN ACCOUNT OF THE Pi. ' i'ii' i:ii|v governments that have hitherto ap^6ared in the world, the wifeft and mofi; powerful not excepted. Thofe of Rome, Laceda^mon, and Carthage, are no more. How then can it be fuppofed that the government of England will not, in fome future period, experience Of the cir- the fame catfiflrophe ? But at what rime, cumftances - . _ - , . . , that are likely and in conlequence of wnat previous accidents, this^^°fatal ^^^^ melancholy event will take place, cannot event. be determined with certainty. I am, how- '. ever, inclined to be of opinion that it will hap- pen whenever the legiflative ailembly of the nation fhall become more corrupt, or rcgardlefs of the publick welfare, than the king, or ex- ecutive maglftrate, and the perfons whom he employs as his delegates and afiiftants in the adminiflration of publick bufinefs. Whenever • . this Avail be the cafe, the people at large will lofe their refpedt for, and confidence in, their own eleded reprefentatives, and repofe them- felves, for the protedion of their perfons and property, on the honour, and wifdom, and moderation, of thdr fovereign. fc t or no, the Englifh do LXVIII. Whethe at this time enjoy this high degree of liberty which I have defcribed, may, perhaps with fome ENGLISH CONSTITUTION. 73 fome people, be matter of doubt. Nor will I undertake to determine whether they do, or do not, enjoy it. It is fufficient for my purpofe that this degree of liberty is eftablifhed among them by their laws, and confequently that, fofar as their laws ?ire put in force, fo Jar they muft enjoy it. How far that is, or in what degree their laws are put in execution, and in what inftances they are violated or negleded, I fhall not inquire. *. f LXIX. I do not mean, by this defcription of the advantages of the Englifh government, to throw any contempt upon the other govern- ments which we fee eftablifhed in Europe, ' nor to inlinuate that the view of this very high degree of political liberty ought to mor- tify the fubjedts of other ftates who enjoy but a moderate (hare of that liberty. Such an intention would be very inconfiftent with my principles, who have always been of opinion that exceflive advantages of any kind are not calculated to make men happy, infomuch that even a very uncommon fhare of understanding and mental ability is not defirable, but that mankind always find their account bed in the poflefTion of moderate advantages of all kinds, whether Ill "MP 74 vaAN ACCOUNT, &c. ^r- whcther th^y be perfonal endowraents, or the gifts of fortune, or the bleflings arifing from fociety or civil government. ^ • „ » , ■ - )'$(' v.>K':i ill 11 k' I'- ri! ill lllf A rcmari: on LXX. Mr. Harrington in his famous trca- Mr. Harnng. . ^ n i >^ i ton's Oceana, tile on government, cahed Oceana, has exami- ned, with great attention and at great length, the fubje6t that has been cpnfidered in the foregging pages, or the nature and limita- tions of that form of government which is befl calculated for the prefervation of political li- berty ; and, in particular, he has endeavoured to find out, what is thchigheft degree of po- litical liberty which it is poflible to edablifh in a civil fociety, and by what means it may be eftablilhed. But we may truly fay of him, that he has fought for this high degree of li- berty in a vifionary common- wealth of his own creating, after having (atn it, without knowing it, in the limited monarchy of Eng- land, of which he was a fubjed. His con- dud.1 in this refpe6t may be compared to that of a founder of a new city, who, having the delightful and moft convenient fituation of Byzantium before his eyes, Hiould neverthelefs chufe to build his new city in the neighbour- ing, but much lefs advantageous, fituation of Chalcedoa, FINIS.