UC-NRL-F $c ni 23S 3 zx: "— — - ■? *-— p^T^V o^4^%^A-- PRINCIPLES OP THE CONSTITUTION OF GOVERNMENTS. PRINCIPLES OP THE CONSTITUTION OF GOVERNMENTS. BY WILLIAM CUNINGHAME, ESQ. OF ENTERKINE, NORTH BRITAIN. " THE DISCORDANCE of the opinions entertained by the ablest men on the subject of NATIONAL POLITY, proves that the PRINCIPLES of NATIONAL ORDER, are involved in great obscurity. At any time, then, he, who should elicit those PRINCIPLES, from the darkness which surrounds them, and exhibit them with truth, and perspicuity to the Public, would deserve to be ranked among the benefactors of mankind : but, at a time like the present, when Europe and the World lie panting and exhausted in a war marked by characters of peculiar horror, and induced by differences of opinion, respecting these very PRINCIPLES, the benefits of such an inquiry, if attended even with partial success, would be incalculable." Monthly Review, May 1800. Vol. 113, p. 34. Am 3e tov ayaDov xpmv ouh sk twv <7rapcttei7ro{ji,emv dbxi/ja&jv toui ypu$ma$y «M' eh rtiv Uyc^mr POLYB. LONDON : PRINTED FOR JAMES RIDGWAY, 170, PICCADILLY, OPPOSITE BOND-STREET. 1811. W, Flint, Printer, Old Bailey, London, bak *ntm, if-1- 111 'till llll. llfcT I 8C0HMH3B 7*C" DEDICATION TO THE RIGHT HONOURABLE THE LORD GRENVILLE, fyc. Syc. fyc. MY DEAR LORD, Permit me to dedicate this Work to you, as a tribute of friendship — I certain- ly do not trespass upon the bounds of sincerity, when I say, that I offer it to the person in the Three Kingdoms, whom I hold the best qualified to judge of it. Nor IV DEDICATION. is the interest of this circumstance dimi- nished by the remembrance of our connec- tion at the University, when I had an op- portunity of beholding those Virtues and Talents, which have since, been so power- fully developed — I am, my dear Lord, with sentiments of the highest regard, and esteem, Your Lordship's Most faithful and most devoted humble Servant, THE AUTHOR. PREFACE. IN the year 1789, a Revolution took place, which among all the extraordinary consequences it occasioned, was in none more remarkable, than in the discussions it gave rise to, on the subject of POLITICS — It did happen, that the very first PRINCIPLES of GOVERN- MENT, were brought into agitation — But it also happened along with this, that they were treated in such a manner, as shewed the infancy of men's knowledge on these subjects — We talk not of the irritation that was produced by the heat of Party — We talk not of the extravagances into which each was betrayed by the in- temperance of the other— These consequences will vanish, Vlll PREFACE. and have vanished with the cause that produced them— We speak of the sober conclusions of men who were disposed to reason coolly, and the difficulty they found in arriving at truth on the subject. It then evidently appeared, that POLITICS had never been studied as a SCIENCE — For how did the World stand ? As far as any thing went in antient times, in HOLY WRIT, Government was not connected with Politics at all, it was the immediate Appointment of GOD — In the Pagan World, in the rude ages, it was in- terwoven with their Mythology — It rewarded Patriotic services, for which their Authors w r ere deified afterwards, or recompensed Military valour — In more advanced periods, something like Constitutions were formed, but they had rather the rude elements of Government in them, than Government itself, and so they shewed by their Revolutions, and Convulsions. And if their Constitutions shewed those shades of dis- tinction, so did the Opinions of their Writers — It was PREFACE. IX rather taking up ideas by fits, and starts, than any com- plete, and comprehensive System — Even Aristotle, with that wonderful mind he possessed, amidst the multitude of subjects he embraced, seems rather to have given hints at POLITICS than a System of POLITICS— One time, it is restraining a NOBILITY — Another time, a KING. Another time a PEOPLE, but no where does it seem THAT COMPLETE STRUCTURE, which is formed to give man happiness in Government — And the universal testimony of their Authors, at least the most remarkable among them, pronounces it a Desideratum. Then came the Middle Ages — These were the Reign of Arms— The ideas of GOVERNMENT were enclosed in steel — A King was a General — A Nation an Army — This was the Feodal System — A Crown was literally fought for as a Military Prize, and States became the Meed of the most Fortunate Valour. Upon this Stock, various Constitutions were grafted — All, inclining differently as the Nation either turned to b X PREFACE. arms, or, resigned to the gentler occupations of Com- merce — It was this that softened down the Feodal System. As the arts of Peace flowed in, those of War declined, and then it was, that there was something else seen in Europe, than Soldiers. But still amongst all these changes, the real ideas of GOVERNMENT, never appeared—The NATION, far from being considered as the basis of it, was never thought of at all — Public happiness was never seen — The general Weal never entered into calculation — Men might court their firesides, more than the camp, they might live at home, more than in the field — But still they were not Citizens. They were the Servants of an Absolute Prince, and they obeyed him as a Master, if they did not follow as Soldiers. It was strange to see the curious shades that these ideas took, according to the Countries they prevailed in. — In England, where Commerce had a little advanced, the ideas of Government developed along with it — Till at last, a PREFACE. XI Revolution gave them an opportunity of appearing in some degree, towards the end of the 17th Century — The Country divided. — One half of the Kingdom, maintained that Power was a Trust given for a Nation's Happiness, and the other, that it was a Property that could never be recalled. But still this was only one point in GOVERNMENT — This only respected the Power in the Rulers, but did not say who those Rulers should be — It spoke of the man- ner of recalling Power, but not of so distributing, as to secure the Public Weal. At last the French Revolution took place — That gave men's ideas an opportunity of completely shewing them- selves — Here, the great oppression in France, led to the overturning every thing. And here again, men took different sides — And if one was wrong before, so were they both now — One set maintained, that there was an Uni- versal Innate Right in every Individual in every Country to Power, so that he must be consulted about making a Government, and might overturn those which he had not b2 V Xll PREFACE. made, or joined in making — The other, that the Nation had no right to enquire how Power was exercised. And what was curious, when each side was refuting the others' absurdities, they thought they were esta- blishing their own — They regarded each other with the most implacable hostility — Condemned as the worst of madmen, and fools, and this because, as they said, it was on a subject the most important of all other's, to man's human happiness, that they committed these mistakes — With all, shewing in the manner in which they discussed it, that the FIRST PRINCIPLES in POLITICS, " FAIRLY UNDERSTOOD, UNIVERSALLY AC- KNOWLEDGED, and PROPERLY BOUNDED, were yet a DESIDERATUM.'' And the proof was this — Are there not in every SCI- ENCE, ESSENTIAL, properly called, PRINCIPLES, which every man allows, which he would be thought almost mad, if he were to controvert, and which in truth, are beyond controversy? Are there not SUCH ? And if there PREFACE. Xlll be, were there THESE in POLITICS ? So far from it, that we found men disputing about THESE VERY PRINCIPLES every day— Nothing fixed— Nothing firm — Nothing settled, or acknowledged — " Then POLI- TICS were not a SCIENCE." Now, if this was the case, was it not to be desired, that some attempt should be made at constituting them such ? Not, we will say, to make a Complete, by any means, Universal, or Perfect System, but some hints towards a Structure ? Somewhat that should redeem them from the state of uncertainty under which they laboured, and give them a species of consistency, and firmness ? And that was the intention of the Present Work. To take them up from the FIRST, and most PRIMITIVE PRINCIPLES, not of THEM, but of ALL THINGS — To proceed step by step, so that it might be fairly seen, where any Error was introduced — In a word, either to force FALSEHOOD to fall, or TRUTH to be established. And so it has been pursued step by step — Let not then XIV PREFACE. any one be surprised, at the apparent homeliness with which the Work sets out — We believe, without vindicating any merit on this ground, but merely en- countering as an objection, that the same murmur lies against all SCIENCE — It must be plain at the beginning — The symmetry of the Building is not to be looked for under ground — The beauty of the Architecture, if any, must appear afterwards. ■ So much as to aught apparently obsolete, in the first Chapters — As to the Plan of the Work, it was originally intended, to consist, of CONSTITUTION, and LEGISLATION— To DEVELOPE the FIRST PRINCIPLES, upon which Government is founded, and then the RULES for carrying it on — Whether this plan will ever be executed in its full extent, or more of it, than is now offered to the Public, the Author cannot say — It depends upon Circumstances not under his controul. But one thing he will say — The Original Idea, the first Incentive to it, was to DISCOVER TRUTH— If any PREFACE. XV have been found, the Author will rejoice, that he has in any degree contributed to what is profitable for man, in any way conduced to the advantage of his Species — If on the contrary, it should be a System of FALSE- HOOD, and ERROR (for good, or bad, System it is) let it fall, the Author will be contented. Only, « LET TRUTH BE ESTABLISHED IN ITS ROOM" — Then indeed he will rejoice — As his first Motive was to attain that Object, so will he be better satisfied that another's should be fixed, than that his Falsehood should live, even if it were possible — Under a more san- guine view of the subject, if some part should be sound, but all imperfect, he will still congratulate, if it only be the means of inducing another to finish — Too happy even then, to have accomplished even this good, to have elicited another to the attempt, and whoever he be, may he conclude under happier Auspices ! ! ! ERRATA. Page 7 dele w in second Greek quotation 28 line 7, from top, for { prescribe ' read { proscribe ' 40 line 4, for ' here ' read * there * 56 second paragraph, line 1, for < privileges they are* read ' privileges then are* 69 Greek note, line 2, for w xvroi read o/ uvroi 78 line 5, read them instead of hem 79 for iXacvt read t\x& 87 line 4, for ORDER read ORDERS 102 first Greek quotation in notes read emxpxrrxrat for mxpxmveui • 120 line 6, reference to note * at < one way *.' 123 reference to note J, end of first paragraph { equal manner J' ■ 127 line 7, second paragraph, for ' deserve 1 read ' desire' ■ 129 reference in note * must be to note Ch. XXI. ■ 151 in margin, line 4, for Executive read Execution 152 end of second paragraph, read taking up at Law, Civil rights were the subject of Go. vemment 165 end of second paragraph, read < on LA W or DICTATION' Ibid, line 6, from bottom, read * hozo far it is superior' 167 margin, line 4, read CIRCUMSTANCES used as proofs 171 line 5, from top, read * must be done directly* 174 line 5, from bottom, read * correspondingly in Contestations' 178 line 4, for * the Minor application' read ' the Minor applications' Ibid, line 8, from bottom, for ' to among men' read * among men to* 181 line 8, from bottom, for * preserved' read ' perceived' 182 in note, for ETM0EPON read ZYM0EPON . 186 third paragraph, last line but one, dele l to be judged' 189 1st line, 2nd paragraph, read ' qualification on its limits — In ally' with capital I CONTENTS. BOOK I. OF REAL RIGHTS. pace CHAP. I. That there is an Original RIGHT ... . 1 CHAP. II. That there is an Original JUSTICE ..... 7 CHAP. III. That Original JUSTICE entitles to Life, Property, and Free-agency . . 8 CHAP. IV. That Life, Property, and Free-agency, are paramount to Government '. . 10 BOOK II. OF PRETENDED RIGHTS. CHAP. I. If Original JUSTICE entitle to aught else, besides Life, Property, and Free-agency it CONTENTS. CHAP. II. FACE That Original JUSTICE does not entitle to Equality . . ., 12 CHAP. III. That Original JUSTICE does not entitle to Power ... .16 CHAP. IV. That Original JUSTICE does not entitle to Independence of Government . 19 CHAP. V. ' That Equality, Power, and Independence of Government are pretended Rights, with all Systems founded upon them . . 24 BOOK III. OF CIVIL RIGHTS. CHAP. I. Of the Evils to which Men were exposed in a State of Nature . . 29 CHAP. II. That Government or Power, was the Remedy for the Evils to which Men were exposed in a State of Nature . . . . .30 CHAP. III. That the End of Government or Power, is to preserve Civil Rights . . 31 CHAP. IV. That Civil Rights are only Real or Natural ones in another Shape . ib. CHAP. V. That the End of Government or Power is to preserve Civil or Real, or Natural Rights, and that the whole is a business of Practical Utility. . . 32 CONTENTS. BOOK IV; OF POLITICAL RIGHTS. CHAP. I. PAG I Of the Difference between Civil and Political RIGHTS . . . 33 CHAP. II. That the first great Political Right is to Establish Power . . . . 34 CHAP. III. That all Political Rights,' or Rights to Power, are founded in the Preservation of Civil Privileges . . ...... 34 CHAP. IV. That a Nation has a Right to Establish Power ... 40 CHAP. V. That a Nation has a right to Abolish Power . . 41 CHAP. VI. Of the Difference betweena Right to ESTABLISH Power,and aRightto POSSESS Power ib. CHAP. VII. That at the Moment of Establishing Power, or Government, none can be excluded -17 chap: viii. That at the Moment of forming Governments, all Questions must be determined by a Majority ...... ..53 CHAP. IX. That it does not follow from men being " Politically Equal," or " Equal in Power," before Government, that they should be so after . . . 5b CONTENTS. CHAP. X. PACE. That if Men are possessed of their Civil Privileges, viz. their Lives, Properties, and Free-agencies, they are not entitled ultimately to Power. . . 56 CHAP. XL That all Government is either Legal or Arbitrary ... 58 CHAP. XII. That Legal Government is a Government of Fixed and settled Rule . . ' 59 CHAP. XIII. That Arbitrary Government is a Government of Will or Caprice . . 63 CHAP. XIV. That Legal Government is the better for Civil Privileges . • ' • 65 CHAP. XV. That Arbitrary Government is the worse for Civil Privileges, and the worst possible 69 CHAP. XVI. That Arbitrary Government is to be thrown out of the Question . . 70 CHAP. XVII. That Legal Government depends upon a Balance . . . 71 CHAP. XVIII. That a Balance depends upon a Division of Power ... ib. CHAP. XIX. That a Division of Power depends upon Power and Persons . . .72 CHAP. XX. That all Power is to be divided by LEGISLATIVE, JUDICIAL, and EXECUTIVE ib. CHAP. XXI. That there are in every State, three Interests or ORDERS, MONARCHY, ARISTO- CRACY, and DEMOCRACY ... ... 76 CONTENTS. CHAP. XXII. . m... •That the Spirit of MONARCHY, is Power . , . 78 CHAP. XXIII. That the Spirit of ARISTOCRACY, is Pride .... ib. CHAP. XXIV. That the Spirit of DEMOCRACY, is Violence . 79 CHAP. XXV. That the three POWERS united in MONARCHY, goto DESPOTISM . 79 CHAP. XXVI. That the three POWERS united in ARISTOCRACY, go to OLIGARCHY . 80 CHAP. XXVII. That the three POWERS united in DEMOCRACY, goto OCHLOCRACY ib. CHAP. XXVIII. That Power must be given equally to make a Balance . . • ib. CHAP. XXIX. That the Persons or ORDERS, who are to receive Power must be rendered equal to make a Balance ... .81 CHAP. XXX. That to make the Persons or ORDERS ,who are to reeeive Power, equal, they must be divided by ORDERS, and not by Bodies ... 82 CHAP. XXXI. That the THREE POWERS cannot be vested in ONE ORDER, to make a Balance 87 CHAP. XXXII. That the THREE POWERS cannot be vested in TWO ORDERS to make a Balance 92 CHAP. XXXIII. That in Proportion as the THREE POWERS have been vested in TWO ORDERS, they have been defective in Balance. • • 99 CONTENTS. CHAP. XXXIV. That the THRE E POWERS must be vested in THREE ORDERS to make a Balance 119 CHAP. XXXV. That the THREE POWERS must be vested in THREE ORDERS, so as to make a Balance ..... . 128 CHAP. XXXVI. That to give Power equally, the ORDERS, who are to receive it, must be made permanent . . • . 12S CHAP. XXXVII. That to make the persons or ORDERS who are to receive Power, equal, they must be made, so as not to overwhelm each other . , . 129 CHAP. .XXXVIII. That the ORDER of KING must be strengthened , . 130 CHAP. XXXIX. That the ORDER of NOBILITY must be reduced , . . .131 CHAP. XL. That the ORDER of PEOPLE must be reduced further . . ib. CHAP. XLI. That the ORDER of KING must be strengthened by Inheritance . . 133 CHAP. XLII. That the ORDER of NOBILITY must be reduced by Primogeniture . 13S CHAP. XLIII. That the ORI^ER of PEOPLE must be reduced by Representation 137 CHAP. XLIV. What POWERS ought to be exercised by each of the ORDERS . . 139 CHAP. XLV. That to conceive a clear Idea of the POWERS, we must conceive them abstracted from the Bodies that exercise them .... 140 CHAP. XLVI. That the LEGISLATIVE is the POWER of making the LAW, or DICTATION of the State ...... ib. CONTENTS. CHAP. XLVII. That the JUDICIAL is the POWER of making the JUDGMENT, or DISCERN- MENT of the State .... . .141 CHAP. XLVni. That the EXECUTIVE is the POWER of making the EXECUTION or ACCOM- PLISHMENT of the State. ...... ib. CHAP. XLIX. That the LEGISLATIVE goes through FOUR DEPARTMENTS of the State, INSTITUTES, MEASURES, REVIEW of POWERS, and ALTERATIONS of the CONSTITUTION ..... 142 CHAP. L. That the JUDICIAL goes through FOUR DEPARTMENTS of the State, INSTL TUTES, MEASURES, REVIEW of POWERS, and ALTERATIONS of the CONSTITUTION . . .... 147 CHAP. LI. That the EXECUTIVE goes through FOUR DEPARTMENTS of the State, IN- STITUTES, MEASURES, REVIEW of POWERS, and ALTERATIONS of the CONSTITUTION . .... 151 CHAP. LII. What if involved by the LEGISLATIVE . . » . is* CHAP. LIII. What is involved by the JUDICIAL . . . . . 1 * voluntarily, without the information of any law, and without the sentence of any judge? When we read the story of Lucretia do we enquire about the laws against rapes at Rome, or do we boil at once with indignation against Tarquin ? When we read of Virginia in the same history, do we not experience similar sensations against Appius Claudius? When we hear of the fate of Socrates, do we enquire about the institutes of Athens, or do we condemn at once the injustice of the Athenians ? From whence can this arise, but a secret monitor in our own breasts, a private adviser in our own bosoms ? \v e approve Another thing is, that in the common occurrences of life, we in provl-Tf the hke manner approve or disapprove of the actions of men, in cases acuo-.i, r wn ere the laws are totally silent. Where we have no public rule to mi' , in cases ^ ■ „ , m win-re the direct us, no acknowledged institute to guide us. From what again laws arc si- . . • . • <• i ., i t „t. can this arise, but the private operation ot the same cause, the secret effect of the same PRINC I PLE ? Told per. We shall be told, perhaps, that we sot this sentiment from edu- haps that we 7 r r ° got this sen. cation. But where did education get it itself? From what spring timent from . . * , . . . education, did it draw it, from what source did it deduce it r d!dJduc»- Education was either instituted by man, or ordained by GOD. tion petit jf ordained by GOD, GOD must have ordained it from the be- •tselt f . . Either i.isti. ginning. It instituted by man, man must have instituted it accord- tuted by ■ t() J^ s f ee ]j n cr S . man, or or- © ° daii.eiby And what were these feelings? An original feeling of RIGHT. GOD . But an original feeling of RIGHT is the same as an original RIGHT In either o o <=> •ose.RiGHT according to all human ideas. In either case, then, RIGHT must have original. THAT THERE IS AN ORIGINAL RIGHT. <$ been original, if ordained by GOD as above stated, it must have been from the beginning ; if instituted by man, it must have been from the beginning: also. But it is not only from this.that we can shew the original existence of Absurdity or. , supposing, RIGHT, butfrom the absurdity of supposing the contrary, and that in the contrary the whole system of RELIGION, the VIRTUES and MORALS.* ^j; e To begin with RELIGION, what is that? It is paying the duty to J^gf*" GOD which we owe to him. But if RIG HT be not original, what made rals. that duty? It must have been man. Man made RELIGION ! Can Ul rell there be a more impious or blasphemous absurdity ? GION. Again, as to the VIRTUES, what becomes of them ? What is pa- 1„ the vir. triotism, for instance? It is the feeling: and doing; what we owe to our !. ° ° . , ratnotism. country, for the many benefits conferred upon us. For the land it gives to nourish us, the parents to cherish us, and the friends to support us. It is our first, and alma mater. For the force it affords to defend and protect us. For the opportunities it gives to enjoy all the blessings and comforts of life. Are all these nothing ? Yet for all these, accord- ing to this system, we owe nothing; at least, we must first go and ask some professor of moral duties. Again as to filial piety, what becomes of that ? Our parents, to be Filial piety. sure, begat us.f They brought us up from our tender years, watched over our infancy, and bore all the perverse humours of our childhood. J rearing us up to maturity, and manhood. But all this is nothing, we owe nothing for all this till we inquire into the nature and extent of our obligation. Again, as to conjugal affection. The tie is tender, the union Conjugal close, the call for mutual support and comfort, pressing, and urgent. allitllon ' * RELIGION is what is RIGHT as to GOD, MORALS what Is RlGH T as to men, includ- ing of course the VIRTUES as bring exemplified in different situations of men. + E£fer«y. J Av Another thing is, that if RIGHT be not original, all must be re- All must be e> ' ° referred to ferred to the dictates of men, since there is nothing else to approve, 4 fig Illptlfps of men.' or condemn any thing. Nothing could be WRONG, till a system of ethics was found to reprobate it. Nothing guilty till a code of laws was framed to condemn it. Before the institution of such laws murther, and house-breaking must have been good, or at least, indif- ferent things. JUSTICE must have been founded upon laws, not laws upon JUSTICE. How far this is consistent with reason, we shall leave others to determine. Opinion of But what plainly shews that RIGHT is original, is, that the opi- men have not • ons f me n have not varied upon RELIGION, the VIRTUES, and varied upon * . REM- MORALS, as they have done upon other subjects, I hey have va- vfiU'UES 6 , ried, it is true, but they have not varied in»the same manner. U RAUk' different nations have entertained different notions of the Deity, THAT THERE IS AN ORIGINAL RIGHT. 5 they have all agreed in thinking that some worship was due. 11" dif- upon other ferent philosophers have cherished different opinions of certain vir- sujec tues, they have all agreed in thinking that some were the same, — if the Stoics and Epicureans differed in their ideas of the manner of pur- suing happiness, still their notions in GREAT MORALS were uniform and one. Neither would have held it honourable to steal, neither to betray one's parents, one's friends, or one's country. So that it was not a difference as to a PRINCIPLE, but the application of a PRINCIPLE: not a difference as to the point of its being RIGHT to please the gods, but as to the manner of pleasing the gods. But it will be said, perhaps, that this was the same thing. — By no means. The manner of doing a thing, must always remain a subordinate consi- deration, while whether to do it or not is the real and essential point. In this, then, in the PRINCIPLE, they always agreed. Now was this the case in matters of science? Certainly not. At one time, one half of mankind believed the world to be a flattened round (if we may use the expression), and the other of an elliptical figure, and it was not till after repeated demonstrations on the sub- ject, that they coincided in the former point. And this very natu- rally, because knowledge is matter of instruction, and men will only learn it as they are instructed. But feeling is a totally different thing, they get that from PROVIDENCE,and they have no occasion for any other adviser.* We are aware, that it may be objected here, that whole nations If nations have differed in their ideas of RIG HT, and that therefore it cannot intheir ° * In this appears the difference between matters of science, and matters of feelin*. — Matteri of feeling depend upon nature, that is, our formation by PROVIDENCE, which is tver true ; mat- ters of science upon the conclusions of men, which are ever fallacious. It may be added here, that bare coincidence is neither a proof of truth, nor want of it of falsehood. At one time all men believed that the sun went round the earth, and at another, one half of them denied that it wa» a flattened round, but neither of these beliefs established positively, or negatively. Natural or necessary coincidence is a proof of truth, and the want of it of falsehood. THAT THERE IS AN ORIGINAL RIGHT. ideas of be uniform, as we would have it. But we will undertake to say, that proceed.^ wherever these differences have taken place, the variations have pro- fromiucaicir- ceec j ec i from some particular fact, or local circumstance, some pre- cumstances. ( .... judice, or partial institution, and not from the application of general PRINCIPLES. At Sparta, for instance, if theft was encouraged and promoted in the youth, as an exercise of skill and ingenuity, it was esteemed part of their military education. If in Turkey it was no un- common circumstance to submit with alacrity to be put to death by the Grand Signor,it was because a death at his hands was considered as a passport into Paradise. But is it to be supposed, that in these coun- tries, other things would not have remained on the same footing? That at Sparta, it would not have been held dishonourable to cheat a man of his estate, or that in Turkey, murther would not have been Always condemned, and punished ? These things then, are always doubly re- futed/ re fated ; first by the great majority of the rest of the world, in every given case, and then by the practice of the nation itself in other in- stances. Wc are con- There is still one remaining proof upon the subject. We are con- of the unity, scious of the unity, and consequently the originality, of truth, in mat- j° ,1 f soq ( J' en . u ners of common reasoning, and perception. No man believes, nay n'aiity, of can conceive that a thing can be, and not be, can be round and truth in mat- , . . . . „ r , , ters of rea- square, long and short, at the same instant. Why then any more, n°oMn mo- that it: can be RIGHT and WRONG, proper and improper, honour- iials ? able and base? We have the same strength of repulsion, the same shock of revolting, the same consciousness of incongruity in the one case as the other. Therefore, It is then clear as dav, that, under GOD, there is an original and an original unvarying RIGHT, complete, perfect, and independent, self-suffi- cient,* antecedent, and paramount, not controuled, but under HIM, conirouling all things. It is of this RIGHT that Aristotle speaks * Ai/T*pxw. THAT THERE IS AN ORIGINAL JUSTICE. «J when he says that men learn it from no compact or convention, but have it by a kind of natural itnuition ;* also Cicero.t It existed always, Ou yatp Ti *uv a' ap^Oef «AA AEI 7tot« Zn t8to Soph. It could be ascribed to no origin with the antients,with us proceed- ing from GOD. — xat *&rf oiitv t% ora tv Qxvn. Ibid. And it is universal, AxXa to jt*£> TTxvrw yopipov hot, t'ETPYMEAONTOS AEPOZ fiviKiut T£T«Ta», hot. r'AnAETOT ATrH2. Vet. Poet. And this original RIGHT is the fountain of every excellence, and Fountain of virtue. It is the main PRINCIPLE from which they proceed, the J^e a.uT chief source, from which they spring and issue. It is then highly er- VIRTUE, roneous to distinguish them, as if they were essentially and materially different. They are all branches of the same stock, all applications of the same PRINCIPLE. CHAP. II. THAT THERE IS AN ORIGINAL JUSTICE. THIS is a consequence of the former. For what is our idea of JUS- JtKHCE TICE ? To give every man his own—Suumcuique tribiato. And 'l\ l v Q f "*" RIGHT. * .Eo-n yap «' ixctvrtvttrai ri •nxirti; W)X«o-», nvdt ZYN0HKH. TlifiPvr. p. 60. Oxf. Ed. + Est tnim haec non scnpta, sed NATA lex ; quam non DEDICJMUS. arrepimus, legimtis ; Terum ex natura i^?a, arripuimus, t ausimus, eipressimus ; ad quam non DOCTI, sed FACTI ; non iustituti, sed imbuti sumus.-Cicer. proMiloae. 8 THAT ORIGINAL JUSTICE ENTITLES what is his own? What it is RIGHT and fitting that he should have. JUSTICE is then an application of RIGHT. It is then ori- CHAP. III. THAT ORIGINAL JUSTICE ENTITLES TO LIFE, PROPERTY, AND FREE AGENCY. JUSTICE is JUSTICE is the idea of giving every man his own. If this gMng^every ^e our idea of JUSTICE, what can be more a man's own, what can Dianhisown.be more RIGHT and fitting that he should have than the Life, Life the first thing to that he gets from GOD,* which he is indebted to no man en titled maD f° r > an d which he must consequently hold independent of him. justice 1 ^ otn * n g can k e more his own, more peculiarly and exclusively at- tached to him. Life then is the first thing to which a man is entitled by original JUSTICE. N?i- tively, and directly hostile to, most decidedly, and diametrically ciplew against it. justice. j 5 ORIGINAL JUSTICE DOES NOT ENTITLE TO POWER. CHAP. III. THAT ORIGINAL JUSTICE DOES NOT ENTITLE TO POWER. idea o? thC POWER is the idea of having command or authority over other authority men,* of directing and regulating their actions, so as to render them over other . .... subservient to our inclinations. men. How then And if this be our idea of power, it may well be asked, what ori- justice ginal claim any man can have to it ? How original JUSTICE fur- eutitie to . ^jghgg an y right, how it affords any title or pretension to it ? Enquire if And here we may observe, that a short way of knowing, whether GOD.™ y original JUSTICE entitle us to a thing, is, to enquire, whether it be conferred upon us by GOD, and therefore, originally unjust, that it should be taken from us ; for wherever a thing is so conferred upon us by GOD, original JUSTICE entitles to it, and wherever original JUSTICE entitles to it, we may be sure that it is so conferred. For it ap- peared plainly in our third chapter of first book, that these were con- vertible terms. For how can it do otherwise than inevitably follow, if a thing be conferred by God, that original JUSTICE does entitle to it, GOD doing inevitably RIGHT; and if there be such a title, from what source can it spring but from GOD, GOD being the only Being that can give such a title ? So that the cause proves the consequence, and How sofon. the consequence the cause. The tree proves the fruit, and the fruit the tree. Taking then the subject in this way, how is power one of the things conferred upon us by GOD ? Has GOD given a right to any one man to govern the rest of his species ? Has HE given a title to any one to command another, anymore than to another to com- mand him ? Or is power, Life, or is it Property, or is it Free-agency ? Is it either the holding of our existence, or the use of it, or the relish * In a human sense. ORIGINAL JUSTICE DOES NOT ENTITLE TO POWER, 17 of it? A man may say, indeed, that he believes by having power he should be happier, but would he really be so ? Is i t any proper (proprium) en- joyment of his existence ? Is it any enjoyment properly confined to him- self, separated and detached from others. On the contrary, it depends ^ ot so COfU upon the command of others.and therefore cannot be proper or peculiar ferred > " ot a r > . . personality. to the person so wanting the command. Power then, is neither the holding, nor the use, nor the relish of our existence, and consequently not one of those personalities, which are originally attached to us. But though not one of those personalities which are originally at- But may be tached to us, it may perhaps be connected with them; Though not ^ith them, Life, it may make us hold it more firmly; Tkough not Property, it may make us preserve it more surely ; Though not Freetagency, it may make us relish it more highly. But it has not the least possible ef- fect in this way. As to Life, a man may hold it as firmly, and se- curely, without power over other men, (providing they have no impro- per controul over him) as with it, and preserve his Property as surely and relish his Free-agency as highly, Free-agency being the privilege of directing our own actions, not regulating other men's. So that it Not so con- has not the least possible effect in this way. It is not then in any " ec wise connected with those personalities which are originally attached to our existence. But though not one of our personalities, nor connected with our But may be personalities, it may be originally fitting and RIGHT, that men should JS 8 ]^, have it. Now this is impossible; for if it were originally fitting RrGHT that and RIGHT that men should have it, if original RIGHT have it. did entitle to it, then it must necessarily be one of these person- alities, i. e. things so conferred by GOD, or connected with This is im- them, GOD being the only source from which such an original P 08Slble - title can flow. But setting aside this idea of original JUSTICE (GOD forgive us) for a moment, that GOD is the image of it,* which is the only one we can conceive or ever could conceive, as long * See first note, Chap. III. Book I, D IS ORIGINAL JUSTICE DOES NOT ENTITLE TO POWER. Nocking as HE is a sole moral Being governing the universe, and taking kiodofab- tne thing in a kind of abstract, how is the idea of power (without stract. a gi ven cause,) originally just and right? How is it more fitting and right, that one man should govern another, than that another houl dgovern him ? How can we discover this in any source of fit- ness or rectitude ? Might not all men pretend the same fitness ? and then it would be a perpetual clashing of claims, a mutual an- nihilation of pretensions, which would extinguish the right in the very beginning?* It appears, then, that power is neither a personality, nor connected with a personality, nor founded in original JUSTICE. And indeed they are all the same propositions, for it is only because a thing is a person- ality, i.e. conferred by God, or connected with it, that original JUS- TICE does entitle to it. Compared Now let us compare power with those things which are really con- th^fwhich ferred by God, or are personalities, and see what resemblance it bears ^fTred b to tnem * Take it with Life, Property, and Free-agency, has it any simi- god. larity, any reference or relation to them ? None in the world. It is very No simiia. na t ura ] ? that Life, Property and Free-agency should belong to a man, because they relate to him, to him himself, to no others, and are within his own person. But it is very unnatural that power should belong to * But, say some men, power (the establishment of) is expedient, and expedience is the preservation of original rights (Life,Property, and Free-agency); therefore power is an original right. But there is a great difference here. There is a great difference between a "right given for preserving original rights," and an u original right in itself." The one is a right founded upon the preservation of the original i rights of all, and which is to be regulated by the preservation of the original rights of all ; the other is a right founded upon itself exclusively. The one is conditional, the other absolute. The one relative, the other positive. Supposing the expedience of establishing power, which has not yet been proved, but which is very likely to be the case, it would not make power one whit more ori- ginal, it would only shew the call for erecting it. And if it did make it original, the certain conse- quence would be, that all would have it. And so they would, say you, because it would be for the general benefit. "Because?" the moment you mention " Because," you give up the question. This is the difference between power and original rights (how far it would be for the general benefit that all should have it, we shall see afterwards) ; there is no " Because" about them, they depend upon themselves, original JUSTICE entitles to them. i ORIGINAL JUSTICE DOES NOT ENTITLE, &c. 1§ him, because that Joes not relate to him, but solely and exclusively to others, and is out of his person. But let us appeal to our feelings on the subject. Does any man Appealing t© our feelincs. fee], that he has a right to power, as he has to Life, Property, and Free- Condemned. agency ? Does he feel that he is entitled to power, or would like to governor be governed, as he likes to enjoy Life, Property and Free-agency, or would like to let another enjoy them? He does not. That answers the question. Whether then, we consider power as a personality, i. e. a thing con- Whether ferred by GOD, or connected with a personality, or founded in original sider power RIGHT, which are all the same things, or resembling a personality, or a * n *^" &e> appeal to our own feelings, it is equally destitute of any foundation in equally de. . . . TTicmTnr stituteofany original RIGHT, equally free of any bottoming in original JUSTICE.* claim in on. . ginal JUS- TICE. CHAP. IV. THAT ORIGINAL JUSTICE DOES NOT ENTITLE TO INDEPENDENCE OF GOVERNMENT. INDEPENDENCE of government is a new species of right. The Jfkp?"* i • • i . . . rr,, -it dence of go- others were positive, this is negative, lhe others were rignts to have vemment. something. This is a right to be exempted from something. This is a right, if a government, or mass of power (to be explained if a go- afterwards) be erected in a country for preserving the rights of b/erected in all, a right of living out of it. That it is so for preserving the a r c t s "" v t [ l f for rights of all, must be previously proved ; i.e. it must be the fact, before this the r 'g ,,ts right can come into question. Eor if it be a government of tyranny, right of iiv- i.e. against the rights of all, to resist it is only contending for the rights in s outofiu * It is very remarkable that from no one having a claim to power, or preferably, that is, all wanting it equally, it should have been concluded, that all had it equally. us 20 ORIGINAL JUSTICE DOES NOT ENTITLE How original of alk The question then is, what foundation there is for this title, in ™mK. ? original JUSTICE. Enquire if And here in trying whether this title be founded in originalj USTI CE, gavelt - we may resort to the same criterion, as with equality, and power, that is, to enquire whether GOD have given it, whether GOD have con- ferred it ? For if God have given such a title, if GOD have con- ferred it, then it is inevitably right, and we may be very sure that it is founded in original JUSTICE, and if GOD have not given such a title then we may be very sure of the contrary. How? Now how has God given such a title? How has he conferred on any one the " right of living out of government?" But here it may perhaps be objected : " The onus probandi lies on " you. It is not for us to shew the right of living out of govern- " ment," but for } r ou to prove the " right of submitting us to it." That we are just going to do ; and we are to do it, by supposing government in the first place, and then seeing the consequences of not being submitted to it. if gave such If a government, or mass of power be erected in a country, it must have giVea* be erected for preventing disorders and crimes. (We must anticipate MaSatHUfe so f ar > though we have not described government yet, for as we are Property, talking of this right, we cannot discuss it without considering; what and Free- , r , agency, at it opposes.) Now if government be erected for this purpose, and we cannot conceive it otherwise, unless it be for the purposes of the devil, what is the right of standing out against it ? What are its con- sequences ? It is the right of perpetuating crimes, for such would be its conse- quence. If the government be erected for "repressing crimes/' what can the resisting it be, but " standing out for crimes?" " No," says some one, " AVe do not want that ; when we commit crimes, put us to " death, for we then place ourselves in a state of war.*" At the best, then, this right sacrifices all comfort, and security for Life, Property, and Free-agency, and at the worst, these things di- * See Locke. same time. TO INDEPENDENCE OF GOVERNMENT. 21 rcctly. What title, then, has GOD given to it in original JUS- TICE? To begin with, the worst state, perpetuating crimes. If he have given such a title, he must have given it against Life, Property, and Free-agency, since their direct ruin would be the consequence. For what are crimes and disorders but destroying these? But GOD has given a right to Life, Property, and Free-agency, (see B. I. Ch. III.) Then he must have given a right for, and against these things at the same time. But to take the best state, i. e. losing all comfort and security for them. Here they have provided a notable remedy, " If we attack your " Lives, Properties, and Free-agencies we put ourselves into a state of " war, kill us, and then your Lives, Properties and Free-agencies are safe." " That is not clear, we may not be able to kill you." Besides, we have as good aright to enjoy these things in security, as to enjoy them at all. If not GOD has given us a right to enjoy them, and not to enjoy them. He meant us to possess them as much as possible, and yet not to possess them as much as possible at the same time. This is as great an absurdity as the other. Independence of government, then, is not a personality, i.e. thing Indepeo- r ii /^ ought * PRIVILEGES," still these are so precious, and valuable to mankind, that the right of government OUGHT to come out of them, that is, though there were no original title to them from reason and JUSTICE, or (if it were not irreverent to state it, or impossible to believe it) from the SUPREME BEING, as the fountain of reason and JUS-' TICEf, still these things are so much for the good of mankind, so profitable, so advantageous and expedient in themselves, that the af- ter and subsequent title to government or power, ought to be made " * See Book II. Ch. III. + See Book II. Ch. III. p. 17, ,-53 THAT POLITICAL RIGHTS ARE FOUNDED to stand upon, attach to, and come out of, them. Take Life, Proper- ty, and Free-agency. Take them in all their relations, as afterwards developed in government. The security that a man has for his Life, the comfort and happiness derived from it, the eertainty of acquiring Property, the safety of holding, the prospect of succeeding to, of con- veying to whom he will, of receiving from those who acquired it, and this through all the multiplied situations that can take place in a civilized, a commercial, and a happy and populous country, and the more, the more so. Add to this, the comfort of doing what he pleases, of not being interrupted in the performance of any lawful, any naturally, and originally, legitimate action ; of disposing of his being as he lists, without being accountable to any one. When we count these things, when we calculate these advan- tages, multiplied, and modified, and diffused, and developed, and ex- tended as above, we must acknowledge that without going up to the essence of the right, without ascending to the first laws of reason and JUSTICE, we should constitute the right of government upon these privileges, and upon these privileges only. •Whole bies. For it must be confessed that Life, Property, and Free-agency, are in D ?his fmaD not on ty tne paramount blessings, which man can enjoy in this world, world. k u t- j n fact all of them. For they either are themselves, those bles- sings director include the after use, relish,or enjoyment of them. Whe- ther a man devote himself to the pursuits of science, the occupations of business, orthe amusements of pleasure, lawful pleasure, still these things are comprehended in the circuit of the privileges we talk of. Nay, even the gratifications of vanity and ambition proceed from them, that is, cannot be attained without them. In a word, whatever re- lates to the use or enjoyment of our existence in any shape, whether good, bad, or indifferent, whatever concerns our being, whether well or ill, is included and implied in them. Right of go- Thus then it appears,that,take itwhich way we will, whether werefer to the IN THE PRESERVATION OF CIVIL. m PRINCIPLES of JUSTICE, or to what is advantageous and profitable vomment to formankind,power,orgovernment,and the right of poweror government * e ' 2 >Mtl " IS, and OUGHT TO BE, constituted upon these privileges. But this tfeem. has not ahvaysbeen the way in which men have begun. They have some- times set outwith planting Political rights,(or rights to power)in the first place, and then insisted on never deviating from them. They have given every man a personal right to a share of power in the first instance, and then required that it should not be taken from him.* Perhaps they M>n be i n i obvious on as the former. It a nation have a right to establish power, for the the same preservation of Civil rights, it has undoubtedly to abolish it for the fh^ former, same purpose, that is, when this power " goes contrary to, or destroys the end for which it was established/' All disputes then, upon the point, whether a Nation have a right to alter their government when prejudicial to Civil rights, are absurd. — First, because they have this right upon the government itself, which is, or ought to bo, consti- tuted upon these rights, and then, upon the PRINCIPLES of JUS- TICE, if a government had never existed. CHAP. VI. OP THE DIFFERENCE BETWEEN A RIGHT TO ESTABLISH POWER, AND A RIGHT TO POSSESS POWER. THAT a nation should have a right to establish power, may Right to seem in some measure at variance with our former PRINCI- poJcr^not PLES, as we contended so strenuously in our second book, that at variance , * ' with the there neither was, nor could be, any right to power.* But this ap- denial of the right to pos- * See Book II. Ch.III. 8essit * - G 4? DIFFERENCE BETWEEN A RIGHT TO ESTABLISH, parent discordance will soon vanish, when we consider the subje ct more closely, and especially, when we examine the difference be- tween a right to establish power, and a right to possess it. Constituted It will be found that the grounds, upon which the former of these upon i . Rights, is constituted, by no means interfere with the PRINCIPLES, which exclude the latter, nay, that they confirm them. For what were these PRINCIPLES ? That power not being an original pri- vilege, but only a means,f there could be no right to possess it (ab- solutely). And what do we say now ? That being a means, there must be a right to establish it, and that upon the very ground, that it is a means, and that there can be no right to possess it.* Righttopos. But the difference between these two rights, will be much better suss power, ■ ' ' _ ' Ai-iz-1 primary to seen, by a more close comparison of them — And, in the first place, a secondary.' r 'g nt to possess power, would be primary,a right to establish it, is only se- condary— A right to possess it, would be primary, because it would be a right to possess it on account of itself— Would it not be on account of it- self ? On account of what other thing, would it be? If it be a right to possess it (absolutely) it must be a right to possess it under all circum- stances,since there is no right to possess a thing absolutely, which is not to possess it under all circumstances. If it be only aright to possess it under certain circumstances, it is " sometimes a right to possess it, and sometimes not a right to possess it." If we would know the difference between these things, we have only to look to Life, Property, and Free-agency, which are full possessions. . Have not men a right to possess them, under all circumstances ? Is there any + See Book II. Ch. Ill, * The same reasons that secure it as a means, exclude it as an ewe?-— Why have men a right to establish ? Because it is a means, a means for Life, Property, and Free-agency, which they have an irrefragable right to.— And why have not men a right to possess it ? -Becaus.Mtis only a means for preserving this very Life, Property, and Free-agency, and to be regulated by them. — If tyrants could plead their right to possess it, there would be no establishing, or re- establishing f«r the sake of Civil privileges. AND A RIGHT TO POSSESS POWER. 43 ■time when they have not a right to possess them ? As to forfeiting them by crimes, that is another thing — That is no invalidation of the right, that is only securing it to other men. — It is no addition to my rightof Life, that I take away another's. f A right to possess power, then, would be a right to possess it, under all circumstances, and being a right to possess it, under all circumstances, it would be on account of itself, and being on acount of itself, it would be primary. Now is this the case with a right to establish power ? Is that pri- mary ? Isthat on account of itself, or " on account of Life, Pro- perty, and Free-agency, which it is meant to preserve ?" Ask any philosopher, or politician, ask any one — Ask them, if it was not erected to preserve men from the attaint of crimes, and to enable them to live comfortably and happily in society. They will all agree in this — A right to establish power, then, is not on account of itself, it is not primary. Here then, is one great,and essential difference between these rights, Right to that a right to possess power, would be primary, a right to establish it possess pow " . ^y, ®^*> constant, is secondary, — Another difference is, that a right to establish it, is to establish occasional,a right to possess it, (absolutely always, let it be remembered) sicmai?* would be constant. If there were, as there is, only a right to establish power,shoulda man come after a government was erected,and claim his share in instituting, he might, as he may be, told, " You are come too " late, the government, or frame of power, which is to protect CIVIL " PRIVILEGES, THE FOUNDATION OF ALL,* and which " does protect them, is established, you must not disturb the public " tranquillity, &c. &c." But suppose a right to possess power, and he might answer, as he certainly cannot answer, " I don't care for that, " your Civil privileges, are nothing to me, give me my share of power, + See Book I. Ch. HI. p. 0. * See this Book, Third Chapter. G3 44 DIFFERENCE BETWEEN A RIGHT TO ESTABLISH, " I don't like your government, you cannot deprive me of my birth* *' right/' Such would the language be, and so would the right be inde- pendent—It would be independent, as much as Life, Property, and Free-agency, and " constantly, like them, reclaimable, as the gift of PROVIDENCE/' Is there any time, when men could be told, " This is not a time for your Lives, Properties and Free-agencies, yoa are to be murthered, robbed, and oppressed ?** Right to A third difference between these rights is, that a right to possess ?r S or7 toaT" P ower would be original, a right, to establish it, is subsequent— A to esta- right to possess power, would be original, because, being on account of subsequent, itself, which it would then be, as has been proved, it would be from the beginning. Are not the privileges of Life, Property, and Free-agency, which are on account of themselves, from the beginning ? It is no- thing to say, that they are on account of man's happiness, they are man's happiness, or if not, the same would apply to man's happiness, it would be on account of itself, and then from the beginning. Must not everything, rationally speaking, that is on account ofitself,thatisitsown means, and end, its cause and consequence, be from the beginning?* — What other thing ought to precede it in reasons since it is for the sake of nothing else ? Now a right to possess power, would be on account of itself ; it would be for the sake of nothing else — It would then be from the beginning, it would be original. Now is this the case with a right to establish power ? Is that ori- ginal ? No — " Life, Property, and Free-agency existed first, and then this right to protect them/' Right to A fourth difference between these rights, is, that a right to possess possess pow- * If a thing belts own means, and end, it must be, from the beginning — What is to precede, there is no means to it ? If it be from the beginning, again, it must be its own means and end ; for if any other thing was a means to it, it would not be from the beginning. AND A RIGHT TO POSSESS POWER. 45 power, would be absolute, a right to establish it, is conditional. — Aer, absolute, right to establish it, is conditional, because being for the preservation u, con- * of Civil privileges, it must be regulated by these privileges, and can ditlonaL never recalit, nor establish anew, till they are violated. — But would this be the case with a right to possess power ? Would that be condi- tional ? No, it would be most absolute, it would exist like the privileges of Life, Property, and Free-agency, which, as we said, can never be precluded. A fifth, and last difference between these rights, is, that a right to Right to possess power, would be individual, aright to establish, it, is collective. 5°"°" — A right to possess it, would be individual, because it would be held individual, to by individuals, and for individual purposes solely, like Life, Property, collective/ and Free-agency. — A right to establish it is collective, because it is held by the public, and for public purposes entirely. Here, then, are five cardinal, and essential differences between these Five cardi- rights, that the" one is primary, the other secondary, the one original, ™Lnm dif. the other subsequent, the one constant, the other occasional, the one ferences be - absolute, the other conditional, the one individual, the other collective, rights. Need more be shewn to prove all the radical causes of difference among men, all the possible sources of distinction, and discrimi- nation ? And it is from these causes, radical, and essential as they are, that Cause of an have arisen all the great disputes among politicians — If one set of p£tL among men maintained at one time, that let a nation be ever so miserable, P oilt,cians ' they had no right to change their government, from what could this pro- ceed, but denying a right to establish power as a MEANS, since they overlooked the ENDS, for which it was established ? And if another set of men upheld at another time, that let a nation be ever so happy, they had a right to depose their rulers, what could this arise from, but assert- ing a right to possess power as an EN D, (since they took it not as a means connected with Ciyil PRIVILEGES),but an independent, and absolute 46 DIFFERENCE BETWEEN A RIGHT TO ESTABLISH, &c. possession in itself? If men meant only by asserting a sovereign right in the nation, that power was made for their happiness, that is," for the protection of Civil privileges," and that when it was abused it ought to be recalled, then it was veryintelligible and only amounted to a denial of the doctrines of passive obedience and non-resistance, or in other words, blind, and unlimited submission to government — But if they meant, on the other hand, that let a nation be ever so happy, ever so much in possession of their Civil privileges, they might with any reason, or no reason, on any pretence, and any pretext, at all times, and in all circumstances, overturn a government, merely because power was their property, then it was a right to possess power, and as wicked., and damnable a doctrine, (humanly speaking) as ever was pro- pagated — This was taking the nation as composed of individuals, with every one of them as complete a right to power, as to Life, Pro- perty, and' Free-agency, the very notion we have been reprobating. — But those again w r ere as wrong on the other hand, who maintained, thatw hen once a government was erected, it was by that very circum- stance rendered permanent, as if it could consecrate itself. That the very point of its being government, made it intangible, however fatal to Civil privileges, that there was no enquiring into it, a doc- trine which would justify the government of Turkey — Is there any government, that it would not defend ? If then men thought in this way, (unless indeed the}' gave into divine right, jus divinum* and did not think at all) from what could it arise, but missing the ends of government, and overlooking the distinction between establishing if had ob- and possessing power ? If they had observed that, they would have served these l •• ' ', • A , ■, • * distinctions, been able to have placeu government upon its proper basis, witn- piacedgol 6 out running into the excesses of extravagance — They would have vcrnme " t on secured all the purposes of freedom, without exposing themselves to its true basis. * L jo * Upon this and passive obedience, and non-resistance above, see note, p. 27. AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. 47 the consequences of anarchy — In short, they would have done every Upon dis- thing, that was necessary for the happiness of mankind, without tween°arigit incurring any of the evils of licentiousnessf — Since such then, is the *° establish ° . . - ant * to possess importance of this distinction, let us rigidly adhere to it — Let us power, to be i « i /* . t it* .1 built every never lose sight or it — Let us constantly keep our eyes upon the rational no- broad distinction between a right to ESTABLISH power, and a Hgbt^jJ^S* to POSSESS power, since it is upon this difference, that is to be eTCr y proper , ., 1 • ! ^ 1 1 idf>a 0f fret > built, every sober idea of regular government, every rational notion estabiish- offree establishment. Inent ' CHAP. VII. THAT AT THE MOMENT OF ESTABLISHING POWER, OR GOVERNMENT, NONE CAN BE EXCLUDED. THAT CIVIL PRIVILEGES are the FOUNTAIN ofPOLITI-Cirii pri. CAL, is a maxim, which cannot be disputed.* From this axiom, there leturf poii- is no departing,there is no deviating in any shape— We must then ever tica1, look upon Civil rights as the criterion of political, the grand rule, and test by which we are to try them. And if this rule shall be, as we trust, it will undoubtedly be found Only ques- to be, of service to us upon many occasions, so will it especially upon exclusion"" the present— For the only question we shall have to ask here, is, how "^T y fo * far this right, if it be a right, of non-exclusion at the moment of form- ing governments, be necessary for preserving Civil rights ? And here we have to observe, that there are only two kinds of Only two governments, existing, or that can exist, in the world, and these are an ^nment/ul the world, . an open, and + See again French Revolution. * See Chapter III. of this Book. a close. 48 AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. an open, persons influenced by a general spirit, to have a close, per- sons in fluenced by a parti- cular. a a open, and a close one. — " An open, which has in view the interests of all, and protects the interests of all, that is, the Civil privileges of all, equally"— And " a close,which has in view the interests of some, and protects the interests of some, that is, more than the Civil privileges of some, particularly." Way to have And the way to have an open government, is, to" have the persons who constitute it, influenced by a general spirit, that they may make it for the general benefit, and the way to have a close one, is to have the persons who constitute it, influenced by a particular spirit, that they may constitute it accordingly." For it will always be found, that " exactly as you ante constitute the " persons who are to frame your government, so will your government " be formed"— A complete proof of this appeared in the antient states, where all those, which were constituted by Heroes or Demigods, is they were called, were tyrannical,f and all those which were made by free countries,or colonies, sent from free countries, were free, that is, open, or something like it. J And this very naturally — For the con- stant consequence of some citizens being considered more than others at the moment of forming governments, is, that favourable distinc- tions will be heaped upon them, and burthens laid upon the rest. The only question then, is, which of the two governments, an open or a close, be the better for Civil privileges, and here we think,there cannot be much difficulty — That undoubtedly of a general nature — That, which is made for protecting the interests of all, that is, the Civil privileges of all, equally, must unquestionably be better for the Civil privileges of all, than that which is made for protecting the interests of some, that is, more than the Civil privileges of some, particularly. How to £Ct -wr it? The sole point, then, is, how to get at this government? How to Question, open or close bet- ter for Civil rights ? Open. + See Athens as founded by Theseus, Thebes as founded by Cadmus, &c.&c. &c. J None were either completely open, or completely close, as we shall see after, but we talk of their tendency. AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. 49 attain this system, which is better forthe Civil rights of all ? The By not ex. answer is, " by ante-constituting the persons generally who are to ^"formingf frame it, and not excluding any one from his voice, or suffrage. For this is the only way in which you can constitute a Government Only way. of that sort, which is necessary for preserving your Civil privileges. The moment you exclude any one, you give it a close cast, you make it a particular interest, and the more you exclude, the closer. Not that it is necessary, nor do we at all mean, " that you are to Notneces- " poll every man at forming a Government, or that the Government is sary t0 po * " illegitimate or spurious, if not so formed." We mean no such thing — We mean only, that you cannot exclude any one of positive authority, at such a time — That if any man offer his vote, you are bound to acceptit — That the PRINCIPLE of exclusion, if once admitted" as " fixing down the right of forming with particular persons," would go any length, even that of attaching the closest government — What is to hinder it ? If once you exclude, may you not go on from exclusion, to exclusion, till you bring it to a Despotism ? What rule would exclude one, that would not exclude twenty, or a thousand, or a million, or any number, if so needed ? If twenty tell the multi- Exclusion go tude, that they are wiser, or worthier, or any thing else than they, tism. may not one tell twenty the same thing, and then it comes to a Des- potism ? But it may be said, perhaps, that if you were not to exclude any at Said would rt ii k ii end in a broad the moment of forming Governments, the thing would end, in abroad Democracy, Democracy, and that would be as bad for Civil rights, as the closest e/dude! Government— And here might be enumerated all the anarchies, op- £ vilsofa L Democracy pressions, and tumults which take place in Republics, and which so fre- temporary, quently extinguish for the moment all freedom—But it ought to be remembered, that it is but for the moment. These evils are only tem- porary, for let Republics be as bad as they will, as tumultuous under a xnob, or as tyrannical under a demagogue, (till lost by corruption, and H 50 AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. that is not more a consequence of Republics, than Monarchies) there is always an energy in them, which enables them to recover them- selves — There is a general sense that government is made for all, and if the nation are not free, they feel at least, that they ought to be so. Is there nothing in this ? Is there any comparison between this state, and that of men's minds, where they think their oppression matter of course, and that it calls for no exertion to emancipate themselves ? Almost all depends upon this, for which reason, it was very well said at one time, that Rome was incapable of freedom. Not so heavy Neither are the evils of a Democracy, setting; aside the temporariness as those of a i • • T i Despotism, of their nature, so heavy, and oppressive in themselves, as those of a Despotism — We shall take them even with universal suffrage, and that in these Governments, this is as bad a thing as possible, will be readily granted us — Well then, taking them with that, what will be the con- sequence ? Why, at the worst, (we suppose it for the sake of the full argument) confusions without end, seditions, expulsions, a succes- sion of demagogues, some of them tyrannical ones too, for such we have certainly seen Republics in their worst tendencies. f But is this as bad as the situation of things in Africa, where all believe them- selves instruments, absolute tools, and play -things in one man's hand, for his mere sport and pleasure. ? Is the state of Democracy equal to this, either in misery or degradation, for this last too is something? No- body can say it, nobody can think it— Nobody can compare two states, in the one of which at least, men are treated as human crea- tures, and not as brutes, and savages.* But it will be said, perhaps, that it would not be a Despotism, if you introduced the rule of exclusion, at forming — What would it be then ? An Aristocracy, or an Oligarchy ? Not to men- tion that it is not clear how far these Governments are preferable + See France under Roberspierre. * See histories of Africa, and page 27, where these very Governments are pointed out as the worst of all, not being so much the eleration of the soiereigo, as the depression of the humaa race. Said would not be a Despotism. AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. 51 to Democracies, for if they are quieter on the one hand, they are more constantly oppressive on the other, as witness the State of Venice,* how are you sure that the few would stop at that? How do vou know that they would not go on to a Despotism ? Might we not Might not . we as well as well say, that the multitude with no exclusion at all, would stop say would at a good general government, and then you would have both order, ^cncy ?* and liberty ? The only fair way of reasoning then, is to take PRINCIPLES in their Oaiyfair extremes, and taking them in their extremes, we say that Democracy, princi ° the broadest you can suppose, is preferable to Despotism— For if once f^^ you exclude a single person at the moment of forming Governments (at treme » the moment of forming, be it remembered we speak) there is no stopping afterwards, you must go the full length of the PRINCIPLE— That men will not do a thing, is no way of reasoning, when we are talking of PRINCIPLES— It is not what they will do, but what they can do, that forms the whole of the consideration — There, "what may be, must be," if we mean to speak with any certainty — But we can take it either way Can take it If you say that they are to stop, we say that a good general Govern- both ***"• ment is better than an Aristocracy, or Oligarchy — If you chuse them to go on, we say, that a Democracy, the widest you can suppose, is pre- ferable to a Despotism. But there is indeed little chance, taking the world as it is, that at the j^e chanM moment of forming Governments,the multitude(even with no exclusion) Jf^f e mul " will proceed to any very dangerous extremity — Though it is a conse- to the widest quence of a general spirit prevailing at such a time, that there will be l a general Government, yet it is by no means so, that that spirit being broadly extended, will produce the widest possible institution. There the reasoning stops. At such a moment, men are apt to be led by the wise, and prudent, and if you examine history you will find, that • Written in the year 1798, then the oldest in the world. Ha Not so clear that some 52 AT THE ESTABLISHMENT OF POWER NONE EXCLUDED. it is not, when a Lycurgus, or Solon are constituting, (as far as they did constitute*) that the multitude are troublesome, but when a Cleon, or Alcibiades are agitating — It is afterwards in the confusion and conflict of parties — And this very naturally, for the multitude never consider themselves as interested in any thing but Civil rights, till led on by others, f* and if aught, are too easy about power, as legitimately bearing upon the purposes of Government — Now take the other side of the question. If once you begin to contract, one win not ft is not quite so clear, that some one, or other will not chuse to be a chuse to be a tyrant. tyrant. With surmis- But with this we have nothing to do — It is not with probabilities, wnot in s to an( j surm ises, that we converse, but with " strict conclusions drawn u from accurate PRINCIPLES" — Taking then these as our ground , we say, that CIVIL PRIVILEGES are the criterion of every thing — That they are the STANDARD of everything— That they must deter- Exclusion mine every thing — Beginning then from these, we find, that no exclu- stroy Civil sion at such a moment is compatible with Civil privileges, for any r,ghts ' exclusion would totally destroy them. How then "We think then, that there can be no doubt upon the subject now — We think, that there can be no question, or difficulty further. You acknowledge Civil privileges, as all must do, to be the great rule, the grand test, the determining standard and criterion of every thing — Acknowledging them then as such, how can you talk of exclusion, Would intro- at the moment of forming Governments — Exclusion at such a mo- government, nient, would destroy Civil rights, for exclusion would introduce a close Government. * See Lycurgus, Solon, and others* + See Book II. Last Chapter* ON FORMING GOVERNMENTS, QUESTIONS, &c. 55 CHAP. VIII. THAT AT THE MOMENT OP FORMING GOVERNMENTS, ALL QUESTIONS MUST BE DETERMINED BY A MAJORITY. THIS is a consequence of the last chapter — For we agreed to ex- Consequence elude none — What their does it signify, whether we exclude them °f th f last P J chapter. nominally, or really, whether by giving no voice at all, or a superiority, or superexcellence of voices, tothe same person ? All then must be equal (at the moment of forming be it remembered we speak) and if all be equal, what superiority can we have but a majority, what predo- minance, but that of numbers, where all are of equal value ? And that all must be of equal value, at such a moment, would ap- Would ap- pear from other circumstances, even if it did not from the last chapter, Pf* rtr . om * . . " othercircum. that is, from it's being necessary for preserving Civil rights — For at stances. the moment of forming Governments, what can make one man's voice of greater value than another's ? Is he richer, or better born, or has he any authority ?* There is no Government as yet to attach these No artificial things, or any merit to them, therefore in that way, and in an artifi- then." "'*" cial point of view, they cannot enter into consideration. Nor if we revert to the PRINCIPLES of nature, that is, our for- No natural, mation by PROVIDENCE, are we one whit better — If a man be stronger, or cleverer, or handsomer, than another, what consideration ought he to have on account of these things? PROVIDENCE has not said whether he should avail himself of them at all, or how far he should be allowed, if he were so authorized. PIE has only said that Civil rights must be preserved (see Book I.) and it has appeared that * See the inequalities of men, proceeding from riches, from rank, or from power. Book II. Chap. II. 54 ON FORMING GOVERNMENTS, QUESTIONS, &c. the only way of preserving them at such a moment, is avoiding any preference — Thus then it appears that there can be no natural su- periority at such a time, nor if there were, that we should know how to appreciate it. No other Neither then upon a natural, nor an artificial, ground, can there way of de- , . . terminiog be any pretence to superiority, at the moment of forming governments — joVit/ * ma " ^ty consequence, all must be determined by a majority, for when all are equal, there is no other way of establishing any predominance, or prevalence. Notneces- Not that we mean to say, as we observed before (see last chapter pou. ° * parallelly) that it is necessary to come to a poll for this majority, or that a government is bad, if not so formed — We mean no such thing — We mean not to talk of a question, nor the probability of a question only of what would take place, if it were to happen — That if then any prevalence, or preference of persons were to be established, it would be fatal to Civil privileges. Majority But to this it may be objected, that a majority may be wrong— best way. ^^ . g a m i nor ity never so ? The former have equal abilities, and a better chance to be right from being the greater number— It is not an infallible way but it is the best — It should then be taken.* All this however is nothing to the purpose, it is only probable reason- with PiUN-i nff _The real ground is, that we converse with PRINCIPLES— ly way. " Conversing then with PRINCIPLES, in the only way we can converse with them, that is, preserving Civil privileges, we say, that there is no other way of preserving them, at the moment of forming Governments (of forming Governments be it remembered we speak) than " excluding no person frorri bis vote," if it should come to a vote, and " determining ail questions by a majority/' * Wboever rejects PRINCIPLE because it cannot always be followed, declares, that be- cause be cannot be as right as he would, he will be as wrong as he can. POLITICALLY EQUAL BEFORE GOVERNMENT, NOT SO AFTER. 5$ CHAP. IX. THAT IT DOES NOT FOLLOW PROM MEN BEING " POLITICALLY EQUAL," OR " EQUAL IN POWER/* BEFORE GOVERNMENT, THAT THEY SHOULD DE SO, AFTER. THAT this is a sound proposition, appears from the following Depends up, consideration — Why are men " politically equal/' or " equal in J > e I1 g S l " lpmu power," before Government ? " Because any political inequality, or difference of power then, would lead to a Civil one, or a dif- ference in Civil privileges, afterwards" — But would that be the case in any subsequent stage of the business ? Wouldany political in- equality, or difference of power, then, produce a Civil one? That is a point to be enquired into — It is not then a consequence in itself — It depends upon circumstances. * * There cannot be a stronger proof that Political rights, or rights to power, are not li on account '* of themselves," for if they were M on account of themselves," it would be a consequence of men being"politically equal,"or "equal in power" before Go?ernment,that they should be so after it, and always — It is a consequence of men, being Civilly equal, i. e. equal in Civil privileges which are " on account of themselves," before Government, that they should be so after it, and always. Ii there any time when men can be mnrthered, robbed and oppressed ? 56 MEN HAVING CIVIL PRIVILEGES NOT ENTITLED TO POWER. CHAP. X. THAT IF MEN ARE POSSESSED OP THEIR CIVIL PRIVILEGES, VIZ. THEIR LIVES* PROPERTIES, AND FREE-AGENCIES, THEY ARE NOT ENTITLED ULTI- MATELY TO POWER. Consequence THIS is a consequence of the foregoing — If Government originate IfSt-biyin CIVIL PRIVILEGES, if CIVIL PRIVILEGES be the whole refuted. END> and CAUSE of itj if « all title t0 Government, or power, must come out of them/' as, we hope, has been fully proved,* then there can be no POLITICAL right, or right to power, independantof them — That is perfectly clear — But even if there could be such a right, contrary to what has been proved, if it could come from any other source than Civil privileges, then it must come from a right to power, as power in itself, Political and Civil being the whole in the worldf — But it has been proved, that there is no such title. J The question then is determined — The idea thus doubly refuted. Civil privi- Civil privileges they are every thing — They are as it were the alpha * aw > anc * the prophets, the ALPHA, and OMEGA of Government, and ome- After them, nothing is to be demanded. vemment. At the same time,however,that nothing is to be demanded after them, tiwiprivu 1 " they go a great way in conferring political privileges, or rights to leges * power themselves. For it is certain that a considerable degree of power, of what is called political right, (and what really is so, on ac- count of Civil privileges) is necessary to preserve them. Because can- ]? or ft j s verv dear, that, in no country, Civil privileges can be pre- not be pre- * See Chapter III. of this Book. + See Chapter I. of this Book. J See Book II. Chap. III. NOT ENTITLED TO POWER. 57 served long, unless there be a certain degree of power, which then served with, becomes political right, to preserve them.* Such is the corruption out# of human nature, that power is necessary to counteract power. But we shall suppose the contrary for a moment — We shall suppose a very small minority, or even a single individual sitting in the heart of a country, and possessing the whole power of it, yet preserving, neces- If majority sarily, and inevitably by the Constitution of it its Civil privileges, the serve, no* question will then arise, how far the majority, the great majority, have ^jjj 1 ^^ a right to claim power ? We answer, that they have no such title, (the case never occurred, but we suppose it for the sake of argument) and we answer, upon the ground, that it would be supposing a right to power. But it may seem hard perhaps, that the great majority of the country should be deprived of power, while the small minority have it — But where is the hardship of this, if their Civil privileges be preserved ? It is only for Civil privileges, that there is power at all, and it is from our sense of the value of these privileges, and of the'neces- sity of power to preserve them, that we ever think it any hardship, and we cannot get rid of the idea — What makes it clear that it is no hard- ship, is, that this supposed country has got the ends of Government al- ready, those ends, * for which it was, and without which it would " never have been" — Another thing is if they have a right, they may prosecute it, and so in struggling for power, get a worse Govern- ment, or lose the end for the means, which is impossible— But- what ^'s ht to 1 t claim, na- ends the question at once, is, that if there be such a right, it must turai, or IT 1 1 fl PI A 1 be either natural or artificial. If natural, i. e. original, it has been * a Not in any individual, particularly, or separately, or as a property, or as power," (like Civil privileges) but " generally and aggregately, in the community, as a means of preserving Civil " privileges." See on this Chap, III. of this Book, on the Origin of Political right. I 5S None. ALL GOVERNMENT EITHER LEGAL OR ARBITRARY. proved that there is no such right to power.* If artificial, the ends of Government are secured already .f CHAP. XI. THAT ALL GOVERNMENT IS BITHER LEGAL OR ARBITRARY. J .„ ~ WE are now come to the formation of Government, and now that AH Govern- ment either we are come to it, we say, that all is either Legal, or Arbitrary — Arbitrary. Legal, which proceeds by fixed and settled rule (lex, as the nameim- * See Book II. Ch. III. + By men not being entitled to power, if they possess Civil rights, wc do not mean, that by the possession of Civil rights, they are disqualified from possessing power, or have not a fair pretea. sion to it along with others. We only mean, that they suffer " no injury, no injustice, stricto jure* and ultimately, in being deprived of it." — In legal language, there is no right without a remedy — If a single individual were positively, and directly, absolutely, and unqualifiedly de. prived of a Civil right, told he mast be murtheredy for the public good, he would be entitled, stricto jure , and ultimately, to overturn a Government, if he could, and take any chance to help himself, and this upon the PRINCIPLE of » Fiat JUSTITIA ruat coelum"— But would this be the case with power? No, — If many, many were deprived of that, they must be content to put up without it, except as necessary for Civil privileges-— This then ends the question— This, if possible, shews it more clearly. + It may be a question here, whether there be not some Governments of a mixed kind, or rather, whether all have not been so mixed, inasmuch, as we have never yet seen any of a per- fectly Legal, or perhaps perfectly Arbitrary, nature — That is, we have never yet seen, any, where no will, absolutely no will, entered on the one hand, or no law, absolutely no law on the other — But if we go to this, we may go to endless distinctions — The next question may be how far mixed, and so on in infinitum. — The only way then to take them, is, like all these subjects, per- fect in their kind, so to define them, and then to characterize other things as more or less ap- proaching them—This is the only way— Then we know what we are about— Then we have clear ideas. , GOVERNMENT IS OF FIXED AND SETTLED RULE. plies) and Arbitrary, by the dictates of its own will, and pleasure, (arbitriiwi)— And there can be but these two kinds of Government in the world, for power must either proceed with rule, or without it. CHAP. XII. THAT LEGAL GOVERNMENT IS A GOVERNMENT OF FIXED AND SETTLED RULE. BUT the foregoing is not enough — It is not enough to state that Foregoiug all Governments are either Legal or Arbitrary — We ought also toen- n ° e "° US quire a little into what constitutes them such, seeing, that they are the principal hinge upon which the comforts of a man's life depend, as far at least as he can have any external guard or assurance for them. And seeing that Government is this principal hinge, this pivot, upon Legal and which man's human happiness turns, we have to observe in the first gaui e ™ T place, that the distinction between a Legal, and Arbitrary Govern- °. pen » ami ment, corresponds exactly to that which we made in our seventh chap- ter of this book, between an open, and a close one. \ An open, which has in view the interests of all, and protects the interests of all, that is, the Civil privileges of all, equally ; and a close, which has in view the interests of some, and protects the interests of some, that is, more than the Civil privileges of some, particularly. For if a Government be Arbitrary, or of will, that is, of the will of any Because men one man, or set of men, or description of men, it will consult the in- ! c * n to , theur r interests. terests of that one man, or set of men, or description — That is human 12 60 GOV ERNMENT IS OF FIXED AND SETTLED RULE. nature — We need not go about to prove this — We might as well at- tempt to prove, that a bowl has a bias, or any other the propensity of nature — The fact is so — And seeing that it is so, the bowl will always follow it's bias, and so will self, or what is connected with self, or the like of one's self, personal, particular, or appropriate, invariably lean to its interests. That being the case then, a Government of will, or an Arbitrary one, regulated by one man, or set of men, or description of men, will always be a Government of closeness — Of closeness strictly, and pro- perly so called, that is, devoted to the interests of some sort of men particularly, and a Legal, being conducted by general will, the contrary. What con. Seeino- then, that this is one, and the same distinction, one, and the titutcs them. " same description of Governments, a Legal, and Arbitrary, an open, and a close, let us pursue it — Let us take up Legal, and Arbitrary, open, and close Governments, and examine them strictly — Let us see into their natures, their constitution, and their essence, and endeavour to find out what really makes up, and composes them. Vain distinc- But nere we ought to observe, first, that if Legal, and Arbitrary turn tion# out what we imagine them to be, there never ought to have been this distinction— All ought equally to have contributed to the preservation of Civil privileges, all ought equally to have been exempted from plea- sure, and discretion — This however has not been the case. — We must therefore take it, as the fact has happened. Legal per- Taking it then as the fact has happened, we say, that Legal *°ho make Government is a Government of settled rule, and Arbitrary, of laws'aitefed varying WB> and inclination— But how is this rule to be settled, and mature!/, what makes the varying of this will, and inclination ? Law may be settled two ways, either as to the persons who make it, or as to the manner of making, and altering it — How these persons are to be con- stituted and fixed in Government, so that they cannot be changed GOVERNMENT IS OF FIXED AND SETTLED RULE. 61 at all (if well fixed at first) and how the laws which they make, must be altered, so as to be altered as deliberately, and maturely as pos- sible, when they call for alteration, is another thing, but this in the mean time — And the less liable the former are to be changed at all> and the latter without due, and mature deliberation, the more of a Legal Government it will be. But it will appear perhaps, that if the fixture of customs and laws Persian and make a legal Government, the Persian Monarchy was such, because ntrcMes. °" it had fixed laws, so much so that those of the Medes, and Persians were proverbial— That these however were considered [as Arbitrary Governments — But there is no contradiction in this — The laws and customs which were so unchangeable might relate to matters of re- ligion, or even giving power to the Prince himself. For it is the fixture of laws, and customs, that distinguishes Legal, Fixture of or lawful Government, from that which is absolute, and Arbitrary — It g anty of" is the fixture, the firm establishment of these laws, that excluding Govern - & ments. the will, the occasional, sudden will, of any one man, or set of men, or description of men, which has no law, but its own motive, no rule, but its own wantonness, and desiring, that constitutes the Legality of Governments. For if you ask any one, what a Legal Government is, the idea that Excludes presents itself immediately to his mind is something that's fixed, and prlce * settled, not wilful — Tied down by law, not abandoned to caprice — Fix- ed, settled, and established by rule, establishment or custom, so as to exclude caprice, or inclination. But this you will say, supposes always, that these laws are found- Legality ed on JUSTICE— -Not at all— JUSTICE does not constitute the Le- tToWith gality of laws — It i9 only because laws are generally consentane- JUST,CE - ous to JUSTICE, and that men act very unjustly without them, that we couple the ideas, there is no natural connexion between them. C»" 62 GOVERNMENT IS OF FIXED AND SETTLED RULE. Depends upon fix- ture. Even if a law for arbitrary power, legal Fixed rule, whether good or bad Arbitrary unfixed. Legal not change by caprice or inclination. Negative of sic volo, sic For the laws of a country may be as bad as they will, that will not shew that the Government is illegal, (without law) only, that the laws are bad — Let them be good, or bad, pernicious, or salutary, will is equally excluded.* Then, says some one if there were a law, for a Monarchy, an Aris- tocracy, or a Democracy, with power in .their hands, to do what they pleased, would you call this a Legal Government ? Certainly as far as that goes — It would be a play upon words, because law is a rule of conduct, and this would be none, but taking the word against itself it would be a Legal Government. Law then is a fixed rule of conduct, whether good, or bad, bene- ficent, or pernicious. By consequence, a Government of law, is a Government of fixed rule, without any relation to it's nature, and tendency. A Legal Government then is a Government of law, or settled rule of conduct, an Arbitral^, a Government of caprice and inclination — A Legal Government is a fixed thing — An Arbitrary, an unfixed — A Legaj Government is an immutable thing (properly immutable) — An Arbi- trary, a mutable. What then says some one, if laws ever change, you say, it is not a Legal Government— No, we don't say that — We only say, it must not change by caprice or inclination — It must either not change at all, or change in such a way, that caprice, or inclination shall have no hand in it. We have then got one step further— A Legal Government is either a Government of fixed rule, or so far fixed, that it must not change by caprice or inclination— It is the negative of Arbitrary will, or inclina- * A Legal Government, or rather an attempt at Legal Government, may be bad, bar- ring the certainty of it , and an Arbitrary, good, under a good Administrator. ARBITRARY GOVERNMENT, OR OF WILL AND CAPRICE. (53 tion, " Sic volo sicjubeo, stet pro ratione voluntas." Mere will must have nothing to do with it. And we may add here, that if we want an illustration of Legal, and Wea of Le- Arbitrary Government, we shall find it in the history of an tien t trary infer- " nations —Those of Assyria, Persia, Babylonia, most of Asia, Africa, Jf s d to f " m with the earlier periods of Greece, give a picture of the latter, those of Carthage, Sparta, Athens, Rome, and most of the Grecian Repub- lics, of (attempts at the) the former.* This then is the idea of a Legal Government, a Government of law, and of Arbitrary, a Government of will and inclination. ■ CHAP. XIII. THAT ARBITRARY GOVERNMENT IS A GOVERNMENT OF WILL OR CAPRICE. AND if Legal Government be a Government of rule (as the name Arbitrary of we said, implies) so is Arbitrary, a Government of \v ill—Of mere wil .' or ca ' will and caprice, not subject to the direction of any precept — As Legal is the exclusion of will, so is Arbitrary, the exclusion of law. And here it may be observed, that it has been usual, to take the Extends all distinction between Arbitrary, and Legal Governments, as resting up- throu § h Go - on the relation between the Governing, and the Governed — As if it touched upon the connection between Prince and Subject, and no- thing elsef — But it does no such thing — There is another surely, and much truer way of taking it, and that is, all through Government, * We cannot too often notice, that there never have been, we believe, any perfectly Legal, or perfectly Arbitrary, Governments in the world — But the best way, we also think, is to define them perfect, and then leave them to explain themselves. + Prince is taken in the sense of Sovereign, or the person, or persons possessing the Supreme power, whether King, Nobility, or People. 64 ARBITRARY GOVERNMENT ONE OF WILL AND CAPRICE. considering it, as not only implying the relation between the Govern- ing, and the Governed, or Prince, and Subject, but also between the Governed among themselves, and that through all their situations and connections. Prince may For this relation between the Governed among themselves, as ap- betweenSub- pty* n g to Arbitrary Governments, does most certainly as much exist in jects. these, and constitute as clear a ground of distinction, as between the Governing and the Governed — For what is Arbitrary ? Acting as the person pleases— If then, the Prince or Sovereign, no matter whether King, Nobility, or People, act as they please, cannot they suspend any laws there may be, between Subject, and Subject, as much as between themselves and the Governed ? Inferred from But indeed from the very meaning of the word Arbitrary, we might infer as much, without going to the power of the Prince — For what does Arbitrary, as we said, mean? Will — If there be will then, if the Government be properly Arbitrary, taking it in the extreme, will must extend all through, it must reach from one end of the Go- vernment to the other.* Nothin fix- But there is no occasion for this. We may barely content ourselves with observing, that in an Arbitrary Government, if it be Arbitrary at all, the Prince or Sovereign, be he who he will, King, Nobility, or People, must have the power of suspending the laws, and then in- stantly all is Arbitrary — Nothing can be Legal that is not fixed, and where there's a suspending power, suspending, of Civil, Criminal, and Constitutional, or rather all Civil, relating to the citizen, as we said, there's nothing fixed. f * Could there be a plainer proof of this, than inantient Persia, where the Satraps, or Govern- ors of Provinces, notwithstanding they had the most Supreme, and Absolute power within their own Territories, were no more than slaves of the Supreme Lord or Master over all ? And were so called, as witness Xenophon, who when talking of Cjtus, the Younger, who waged war against his brother Artaxerxes, terms him A0YA02. — See Xenophon Kv f a Ava&er. t All these remarks must be taken generally — There may not, as we said, have ever been LEGAL GOVERNMENT BETTER FOR CIVIL PRIVILEGES. &5 Here then an Arbitrary power goes from one end of the Government to the other, and is not more to be considered between Prince and Subject, than between the Subjects among themselves — It is no- wise confined — It extends all through — Extending then all through, . what is it? It is an absolute power in the Prince, be he King, Nobility, or An absolute People, of doing what he pleases — Of not being confined by any law, £££«.* of not consulting any rule, but his own inclination. As Le^al Government then is a Government of fixed institute, so is Legal Go- Arbitrary, of will, and inclination — As Legal Government is a Govern- Government ment of rule, so is Arbitrary, a privation, and exclusion of it. trary, 0> ex- l " elusion of it. CHAP. XIV. THAT LEGAL GOVERNMENT IS THE BETTER FOR CIVIL PRIVILEGES. AND this I think, cannot well be doubted by any one, who looks Cannot be to the difference between Legal,and Arbitrary Government — For what anywhoeL is Legal ? Is it not a Government of rule ? Of rule then it must be amiae * for preserving Civil Privileges — For (barring that such are the end of Government, and it will appear that Arbitrary is none at all) can we expect that men would ever make rules against their Lives, Proper- ties and Free-agencies ? That is not to be looked for — They would certainly make rules to preserve them — They would make rules to render themselves as happy as possible, and it appears that all hap- Gorernments of a perfectly Legal, or perfectly Arbitrary description, that is, where absolute!/ no will entered, or absolutely no law, nothing fixed (except perhaps in Africa) — But these re- marks, as we say, are to be taken generally, the Governments defined perfect, and then others distinguished more or less, as approaching them. I 66 LEGAL GOVERNMENT BETTER FOR CIVIL PRIVILEGES. piness is contained in these privileges — We must then think them very bungling indeed, and such as we see them in nothing else, if attempt- ing to preserve these privileges, what they made for the purpose came no nearer it, than that which was nowise so intended, or de- signed, nay calculated for a contrary purpose, viz. Arbitrary Govern- ment. If did not But if it did not appear from the intention of man, that Legal Go- appear from vernme nt must be the better for Civil privileges, it would from what intention ot r © > man, would lie has actually accomplished — For what has been his constant en- from what he .. . .. . . . .. , . „ , has accom- deavour in establishing, or abolishing Governments, but to preserve hshed. these privileges (these sacred privileges in Government, as we may call them, humanly speaking) of Life, Property, and Free-agency ? They are the only ones, as we have observed, that he has uniformly, and univeisally felt, constantly struggled and rebelled for, having in this way almost the divine impression upon them* — And if men have endeavoured to preserve them, they have succeeded in some degree — They have always made something when in any way left to them- selves, that was better for Civil rights, though falling far short of the real thing, so incalculably better that it is foolish almost to state it, than Arbitrary Government. Examine Examine the attempts at Legal Government, though, far ^ em 1 p ^ o at as we observe, from being strictly so, and see whether they w r ere irernment. not all of this description — Though certainly not genuine, or pre- serving Civil privileges in a full degree, as will be explained here- after, whether they did not better do so, than those of a Monar- _ . D chical, or Despotic nature — Whether the Democracies of Greece, Grecian, Ro- * l man, Cartha. the Republic of Rome, even the Republic of Carthage, which was g101 ' Aristocratic, did not better preserve Civil rights than their own, that is, the Grecian Monarchies. They were it is true, more, or less^ * See Book II- Chap. V. LEGAL GOVERNMENT BETTER FOR CIVIL PRIVILEGES. 67 inclined to different spirits, as will also be explained, but they all pre- served Civil rights in some measure. If different ORDERS had their will, they had it in the shape of law, which is something — Perfectly different from the Sic volo, sicjubeo, of Arbitrary Governments, they were obliged to maintain some respect for public opinion, some de- cency and decorum in it — Would any one ever thing of comparing Persian and the Governments of Greece, let them be Democracies, or Aristo- m^™^ cracies, or what they would, with the Babylonian, or Persian Monar- chies ? But indeed that Legal Governments are the better for Civil privileges, Might ap- might appear from the nature of the subject itself, without needing Jatur/o? further illustration, when we consider the corruption of mankind — If subject, we were all Angels, then indeed, there would be no occasion/br go- vernment — There would be no need for any fetter, and restriction — But as long as we are imperfect beings, as long as we are infirm, and incomplete, as long as we are not as the Greeks call it, otvrxptiq, the very name of a rule is a recommendation, the very idea of a re- striction is a merit. And the more so, when we consider the tendency of power to cor- Poisonous rupt, and what a poisonous tendency, and influence it has on the ,nfluence of mind — Prosperity itself is apt to pervert, and breed an insensibility and want of compassion to the woes of others — The instance of Hazael in scripture,* is by no means singular. But besides this, the very idea of power, breeds a notion of right, for when a man is able, of lias been, to do a thing for a certain time, he believes he has a *See 2 Kings, Chap. viii. ver. 12 and 13 — i{ And Hazael said, why weepeth my Lord ? And i* he answered, " Because 1 know the evil that thou wilt do unto the children of Israel— Their '* strong holds wilt thou set on fire, and their young men wilt thou slay with the sword, and wilt " dash their children, and rip up their women with child"— And Hazael said, il But what is thy 11 servant a dog, that he should do this great thing ?" And Elisha answered/ 4 The Lord hath shew- " ed me that thou shalt be king oyer Syria." K2 (58 LEGAL GOVERNMENT BETTER FOR CIVIL PRIVILEGES. right to do it. When we consider the joint effect of these upon the mind, we cannot wonder if their influence should be astonish- ing. Nothing else And nothing else than this, can account for the amazing excess we than this have seen man commit, when he has got into power, as if he had abso- account for 7 ° l the excesses lutely changed his nature — For the enormities he has perpetrated when he has been so placed, and all (except a few) more or less, according to their different dispositions, and circumstances— In Monarchy, it was more intense, fin Aristocracy, more diffused, J in a Populace, or Peo- ple, more malignant and violent § — But all somehow — This is Polybius* cxvaxuxAwo-i? ?roXiT»«i/— Monarchy by its excesses, says he, turns into Despotism, Despotism into Aristocracy from the resistance of the Nobles, Aristocracy into Oligarchy from the same corruption, Oligarchy into Democracy from the impatience of the People, Demo- cracy into Ochlocracy, from a similar abuse, and Ochlocracy back into Monarchy, and Despotism again, from the intole- rance of the nation for these disorders, and their desire of a master, no matter who, to con troul them * — All gave into excesses when they got into power, and all in their own fashion, perpetrated in another way, the very things that had brought their predeces- sors to ruin. Appears From all then that can be seen, from the intention of Govern- tcntion of ment, from the way of executing that intention, from the corruption + See Roman Ernpcrors. % See Venice. § See France, under Robespierre. •The last part of this picture was exactly exhibited in Frauce, for it was precisely becawse the nation were so tired of Revolutions, that they relapsed into the hands of Buonaparte— And it re- mains yet to see how far the remaining part of the paiuting, may be filled up — Certainly they have been completed in other nations — Meantime, see the whole of the passage alluded lOf in Po- lybius, from p. 11. Vol. II. Ed. Lips, to p. 13. "Aurij woXtrvw uvxKvxXutriSj avrri $wius Wilv>»[m&) kxQ x %i lAtraGa?&.ti } kxi ptQiarxTxi) x«< Ttxkii EI2 ATT A KxrxnXy rx xxrx r«f nOAITEIAS. ARBITRARY GOVERNMENT WORST FOR CIVIL PRIVILEGES. 69 of human nature, from the tendency of power to pervert further, Govern, and above all, from the examples, which reinforce, and strengthen ^Letai this theory, it most prominently, and most evidently, appears, that the j^^J*- restriction of Legal Government, its rule, and essence, is better, how for Civil Drivi lC£TCS incalculably better for Civil privileges, than Arbitrary ! ! ! tha n Arbi- trary. CHAP. XV. THAT ARBITRARY GOVERNMENT IS THE WORSE FOR CIVIL PRIVILEGES, AND THE WORST POSSIBLE. THIS is a consequence of the former — If a Government of law, Conse- of fixed rule, be the better for Civil privileges, then of course, a Go- foregoing vernment of will, of wanton, and pure will, must be the worse, and the worst possible — And it is evident that it must be so, when we con* sider all the injuries, to which men must be exposed in these Govern- ments — It may perhaps happen to be sure, that Civil privileges are tolerably preserved, but this is the very mischief, that all is uncertain — All lies at the whim of the Prince, be he King, Kobility or People, Civil, Criminal, and Constitutional, or rather all Civil, (regarding the Citizen), as we have so often said, and may be sus- pended at his pleasure — Can it be called protection, when he, or they, or their favourites (and this applies equally to King, Nobility, and People) * hoping to be screened by their masters, may interrupt, or embarrass, or overturn at discretion ?f It would be better almost, that all were abolished at once, or even that the worst things prac- * To H©02 to at/To, kxi xpfyu hairorutx ruv Qthriowv, kxi rx r'H'MlMATA, vtnftp tnu rx EniTArMATA* Kxi AHMArnrOS, xxi KOAA3, »u cvroi xzi uvx^oyoi' y.xt f*x/\t siLle. , CHAP. XVI. THAT ARBITRARY GOVERNMENT IS TO BE THROWN OUT OF THE QUESTION. WHEN the antient Megarenses came to consult the Oracle, in what rank of nations, they stood, the answer was * The ideas of LEGAL and ARBITRARY Government correspond to those of TNEZIOZ and N0©02 among the Greeks, LEGITIMATE and SPURIOUS. A BALANCE DEPENDS UPON THE DIVISION OF POWER. 71 CHAP. XVII. THAT LEGAL GOVERNMENT DEPENDS UPON A BALANCE. IF Arbitrary Government be a Government of will, Legal Go- *^ al Go. J , , vernnuntde- vernment must be an exclusion of it — And how is this to be accom- perfds upoa- plislied ? By making such an opposition of wills, as shall prevent any a aance "~ one will from leading, or predominating. It is thus we obtain that joint will, that complicated and com- pounded one, which is not the will of any one man, or set of men, or description of men, but of several jointly. Thus it is, that we correct the imperfections of our nature, and obtain an artificial virtue — Thus it is, that we avoid that swing, which is the mischief of Arbitrary Governments,and makes absolute power,no human portion* — Thus it is that we get a moderation, and measure, a Only middle and medium, by the clash of extremes, by the dash of wills, xion for" which is the only BASIS of true law, the only FOUNDATION ^ U vern for SOUND GOVERNMENT. meints. " CHAP. XVIII. THAT A BALANCE DEPENDS UPON A DIVISION OF POWER. HOW can the wills be balanced, unless there be power to for- Balance de- tify them ? aDfvisio P n°of power. * It was for this reason once very well said, that on the same ground, that the DEITY should have, as HE has, Supreme power, no human being should be invested with the like authority. 72 POWER EITHER LEGISLATIVE, JUDICIAL, OR EXECUTIVE. CHAP. XIX. THAT A DIVISION OP POWER, DEPENDS UPON POWER, AND PERSONS. Division of ^ Division of Power depends upon two things, viz. Power, and power de- jt i o pends upon Persons — It depends upon Power, as more maybe given to one Per- Persons. son than another — It depends upon Persons, as one Person may be natural \y stronger than another— First then, as to Power. CHAP. XX. THAT ALL POWER IS TO BE DIVIDED BY LEGISLATIVE, JUDICIAL, and EXECUTIVE.* All political ALL political power is, properly speaking, Legislative, as it relates legis either to the making of Jaws, or the executing them, which widely LATIVE. speaking, includes their application — For whatever is done in any country, is, or ought to be done according to law, and then it is only following out 9 and realizing the law. Intention of And what plainly shews that all political power is properly speak- a*ppUed°aud in g> Legislative, is, that when a law is framed, it is the intention of executed, that law, that it should be applied, and executed, that is judged upon, • It must be seen, that by Power, is meant LEGAL power,as A'bifrary is now thrown out of the question, and taking the thing in that way, there is nothing but LEGISLATIVE, JUDICIAL, and EXECUTIVE — Every thing that is done" in Government, must be done by one or other of these THKEE — It must be perceived, that issuing an edict like the Roman Emperors, or suspending a law, or superseding the execution of a law, is all Arbitrary, it cannot therefore come into consideration — • All then must return to the LEGISLATIVE, JUDICIAL, and EXECUTIVE^as far, as that goes, the above being spurious. POWER EITHER LEGISLATIVE, JUDICIAL, OR EXECUTIVE. 73 and enforced— That follows of course — Indeed, it is no more than realizing the law — Till it is so judged on, and enforced, it is no law, it is only an airy institute, (that is, if there be occasion for executing it) without body, or substance — It had as well not be, and in some cases, much better — For if the law be ill applied, that is, not properly judged on, so that the innocent are confounded with the guilty, it had better not be — And if, after the guilty are convicted, they are allowed to escape, it had as well at least, not be — So also of Civil cases corres- pondingly — So that it is evident, that the Judicial and Executive powers are parts of theLegislative,andthattoo,in their first essence,and origin. At the same time, as these powers have been usually considered legisla. • TTVF ITT as distinct, and have certainly a distinct weight in the Constitution of])j C i^ Lam i a State, they shall be treated, as they necessarily must be, separately — tive U ~ And treating them in this way, we say, that they comprehend the comprehend whole force of Government — That they together make up that mass of every ing * power, which we call Government, and contain in them, whatever can be either desired, or could exist, or does exist in it. For if we refer to the motives, which first induced men to Govern- Refer to mo. ment, what could they be ? What, but to preserve their Lives, Pro- foment. " perties, and Free-agencies, those natural PRIVILEGES Avhich have been denominated, Civil, and without which, as we have seen, there is no happiness in society* — And if this was their motive, and their sole motive, what more effectual way could they take, indeed what way could they take at all, but forbidding men to invade, enquiring if they did invade, and punishing them for invading them ? They could do nothing else than this— It was the sole protection they could afford them. Aye, but says some one, what do you say of Civil matters ? What do you say of the protection, that is afforded men, by adjusting the rights, and questions of property between one * See Book III. Chap. I. II. III. L 74 POWER EITHER LEGISLATIVE, JUDICIAL, OR EXECUTIVE. another ? We say, that it is a more enlarged protection — The same protection extended in another shape, arising from a more ad- vanced state of society, but still within the LEGISLATIVE, JU- DICIAL, and EXECUTIVE. But still say they, this is not all — There is still something else want- ing to protect Civil privileges — There is something wanting to render this system of law, of which you talk, and which does protect them, permanent — To take care, that it does not fall to decay, that it is not destroyed either by foreigner internal enemies — In a word, to support it. You mean the State — That we should have a force to defend, and protect it — Fleets to cover it, troops to inarch out against its enemies, treaties made, alliances confirmed, and strengthened, internal affairs administered — Granted— All this is very necessary, and all this is within the LEGISLATIVE, JUDICIAL, and EXECUTIVE-As it was well said by Hume, " armies, forces, and fleets, treaties, alliances, and ambassadors, are all to support the TWELVE JUDGES, it is only doing the same thing in a different way.* It appears then, that whatever is done, either for preserving Civil privileges, or preserving the system, that is to preserve them, is to be found in the circle of the LEGISLATIVE, JUDICIAL, and EXE- CUTIVE. ex^^nts ^ Ut settm g as ^ e tne motives to Government, that is, the ends men powers. h ac i i n view, it might appear methinks from the speculative extent of its powers that there could be no other, than these. — For what can we conceive, beyond the LEGISLATIVE, JUDICIAL, and EXECU- * We are, therefore, to look upon all the vast apparatus of our Government, as having ulti- mately, no OTHER OBJECT or PURPOSE, but the DISTRIBUTION of JUSTICE, or in other wonls,the SUPPORT of the TWELVE JUDGES— Kings,and Parliaments, ileets,aud armies, officers of the court, and revenue, ambassadors, ministers, and privy counsellors, are all subor- dinate in their END to this PART of administration — Even the Clergy, as their duty leads them to inculcate morality, may justly be thought, so far as regards this world, to have no other useful object of their institution. See Essays, Vol.1, p. 35. Oct. Ed» POWER EITHER LEGISLATIVE, JUDICIAL, OR EXECUTIVE. jj TIVE? What is our idea of governing ? Is it not directing men's actions by fixed rules, let them be made by whom they will (for we talk not of Arbitrary sway, of which there is no reason and account, and which cannot therefore enter into any reasoning, and account,)* and if this be our idea of governing, how can we direct them other- wise, than by telling them what they are to do, enquiring if they do, and punishing them for not doing it, and correspondingly in the Civil ? There is no other way than this, nothing else in the whole circle of regulation. But setting aside the motives to Government, or the speculative ex- Actual prac. tent of its powers, what do we see in actual practice ? What do we ce * see, but either framing laws, or applying, or executing them ? What, but either regulating the internal concerns of a State, or providing for its defence against foreign enemies ? What, but either restrain- ing the crimes, that perpetually arise, or confirming its strength, by treaties and alliances ? What, but either public, or private* foreign, or domestic, general, or particular? Either raising an army, or punishing a crime, imposing a tax, or sending an ambassa- dor? We see nothing else than this, nothing except in the deserts of Asia, Africa, or America. Taking the thing then, in every way, whether we refer to the mo- tives that prompted men to Government, or to the speculative extent and compass of its powers— Whether to the ends they had in view, or to any mode or manner of accomplishing them — Whether to its origin, and PRINCIPLE, or to its actual exemplification in fact, it all comes to the same thing, it ever returns to the LEGISLATIVE, JUDICIAL, and EXECUTIVE— So much for the powers—Now for the persons that they are to be divided among. * See Ch. X VI. " OvS' » Xoy*,, »3' *y *ji^»." L2 76 IN" EVERY STATE THREE ORDERS. CHAR XXI. THAT THERE ARE IN EVERY STATE, THREE INTERESTS OR ORDERS, MO- NARCHY, ARISTOCRACY and DEMOCRACY.^ Three In- THIS is one of the most important points, that can come under terests in ... . every State, consideration in the whole subject of Government — To everyone, who chy, " examines ever so little the theory of States, it must be obvious, cract*" a ^ at * n everv countr y» tnat can be called a State, there are three In- itio-' terests constantly contending, or ready to contend, when they have the CRACY ' opportunity, and these are MONARCHY, ARISTOCRACY, and DEMOCRACY. It is nothing to say here, that every State, is not a Monarchy, an Aristocracy, or Democracy — That every State is not either govern- ed by One, which is a Monarchy,* or the Nobles, which is an Aris- tocracy,f or the Many, which is a Democracy.^ That every State is not, even a mixture of these elements — But there are these Interests in every State — There is a One, who would be greatest of all, a Few, who would be greater than the rest, and a Many, who would wish to have things their own way^[ — It may appear, that this \ It may be observed here, that it may appear perhaps, that as Monarchy, &c. imply a degree of power, admixed, it is improper to apply these terms, when we are talking of the naked ORDERS — To this we have only to answer, that there is more colour in these words, and that if any object to them, they have only to read KING, NOBILITY and PEOPLE, instead, and then every purpose is answered. * BA2IAEY2, or MONAPX02. t O* APIXTQI. t Oi nOAAOI, or AHM02. 1 The whole of the above extends even to a village. See Gray's elegy in a church yard, on dif- ferent spirits there " Some village-Hampden, that with dauntless breast, The little Tyrant of his fields withstood ; Some mute inglorious Milton here may rest, Some Cromwell guiltless of his country's blood." IN EVERY STATE THREE ORDERS. 77 view of the subject is theoretic, but we appeal to al!, whether there be not these three Interests constantly ready to operate in a State — And if there be these Interests, if there be this ambition, this pride, and these desires, then,it signifies little by what names they are distinguished, whether MONARCHY, ARISTOCRACY, and DEMOCRACY, or any other. If there were not indeed these Spirits in a State — If we did not see Lying like them ready to come forth, and contend, when they had an opportu- ^onwaufd. nity — If we did not perceive them lying like seeds half concealed, yet inherent in human nature, and ever ready to break forth, then in- deed, the system might be deemed visionary — But to say, that be- cause they are not always exemplified, that therefore they do not al- ways exist, is to say, that if the circle had never been traced, its rays would not have been equal — " Truth is not the exemplification of things '* in fact, but their rational relation, and possible exemplification, when " the fact happens.*" There are then these three Interests, constantly contending, or ready A,wa ys three to contend in a State, MONARCHY, ARISTOCRACY, and DE- ntefCS(S ' MOCRACY — There are these three Interests, constantly affecting, or ready to influence them — Either actually exemplified in bodily shape, or ready to come forth whenever they have an opportunity — And when they do come forth in such shape, they are called MONARCHY, ARISTOCRACY, and DEMOCRACY-But whether they come forth, or not, they are equally Spirits or Interests — And when they do come forth, and are exemplified, they are termed the ORDERS of a * Besides Gray's Elegy already quoted, see passage in Montesquieu, p.29. note for,POSSIBLE MO- N ARCH Y, POSSIBLE ARISTOCRACY and POSSIBLE DEMOCRACY— It may be added here, that these Spirits are as distinct as possibIe,from their POLITICAL POWER— Every one of them here named, has, or may have, his consideration, and following, independent of such power — The King, or who wants to be, King, has,or may have,his station, and consequence; the Nobility, or who want to be great, have, or may have, their rank and adhereuts, and the Many who would have things their own way, have the strength of their numbers— This may be tailed their natural situation, the other arising from political power, their artificial. See Chap. XXXVII. afterwards on this. 78 SPIRIT OF ARISTOCRACY, PRIDE. Like Orders State — And as it happens in Architecture, that a building may consist turc. " either of all the Orders together, or of One, or more separately, soitis of the fabrics of Government — They may either consist of MONAR- CHY, ARISTOCRACY, or DEMOCRACY SINGLY, or of two of hem, or of all together*. Such is the nature of these ORDERS, and such their reality, and existence. Spirit of MONAR. CHY, Power. CHAP. XXII. THAT THE SPIRIT OF MONARCHY, IS POWER.f THAT is, its tendency, and bias, and it is obvious that it must be so, from the situation of the holder— When all is concentred in ONE, there will desires concentre also— That person will naturally draw every thing to himself. Spirit of ARISTO- CRACY, Pride. CHAP. XXIII. THAT THE SPIRIT OF ARISTOCRACY, IS PRIDE.J ARISTOCRACY" is the rule of the best, so called, from their being the most forward, in birth, fortune, and education— Elevated above the rest, in these points, and holding power on that very ground, they will despise them more and more daily. * There is a building at Rome, into which, all the five Orders of Architecture, are incorpo- rated, ■r MONAPXIA. \ API2T0KPATIA. THREE POWERS UNITED GO TO A DESPOTISM. 79 CHAP. XXIV. THAT THE SPIRIT OF DEMOCRACY IS VIOLENCE.* THE many are unenlightened from ignorance, that is, want of edu- Spirit of DE. J ° ° . MOCRA. cation — Abandoned then to the rule of their leaders, and inflamed by CY.Vio- their own passions, what can they be, but violent? ence * CHAP. XXV. THAT THE THREE POWERS UNITED IN MONARCHY, GO TO DESPOTlSM.f DESPOTISM in its bad sense, is the possession, and abuse of Three powers . • 1 , , inMONAR- power — When power is constantly encreasing, and by a natural conse- chy to quence, abusing, what else can it come to ? tism. " * AHMOKPATIA. + 0-n tt*» tiSos woXiTtixs AnAOYN, xxi KATA MIAN 2TNE2THKOS AYNAMIN, tvicrtpaXts yiynrxt, Six to rxyixs us rw otxeixy, xxi (pveei irxfivo^um, txrpsntaQxi xxxixv xxQjcntp yxp aifopu, /xe> ios, %vXois c)e Opines xxi Tipnoonsi (TV(A.$vtit;twt \v[xxi, Vtuv, xxvirxaxs rxs c^wOtv^ix^vycocri GXxQxs, vn 1 xvrui (pQapovrxi rcui crvyyiwptwv, Toy xvtov Tpovov, xxi TC1~H nOAITEIUNj avyyinrxt xxrxfyvvn txxa-rri, xxi ntxpvniTxi rts xxxisc BA2IAEIA (At* t * M0NAPXIK02 teyotwos rpo%oSj , ■ ,. ^ .> . ,.— , ■ , 80 TO MAKE A BALANCE POWER DIVIDED EQUALLY. CHAP. XXVI. THAT THE THREE POWERS UNITED ?N ARISTOCRACY GO TO OLI-^ GARCHY.;j: Three OLIGARCHY in a similar sense, is the rule, and oppression of powers m L l aristo- the rich, or great — Despising the- poor more and more, and elevated go to OLI- above them already, by the most evident claims at least to respect, GARCHY. ^y must trample upon them at last. CHAP. XXVII. THAT THE THREE POWERS UNITED IN DEMOCRACY, GO TO OCHLOCRACY. § OCHLOCRACY is like Despotism and Oligarchy, in their bad Three powers in demo- senses, the rule and oppression of the rabble — Ignorant from want of to OCHLO- illumination, and eager to be led, the many will submit themselves to the worst leaders, who will expel the best for their own purposes- Then comes OCHLOCRACY.!} 4 CHAP. XXVIII. THAT POWER MUST BE DIVIDED EQUALLY TO MAKE A BALANCE. ^dldequaiiy "W^ nave now snewn wnat Legal Government is— That it depends to make a upon a Balance — That a Balance depends upon a Division of Power, and a Division of Power again, upon Power, and Persons — We have 4* + API2TOKPATIA, Si o r»c OAIIAPXIAI, . » § AHMOKPATIA, i, o ©HPinAHX,xaATAOY2, mrimlinvoiMim rm EniElKfiN, ibidem, speaking of Athens. See States of Greece. # Jfr PERSONS RECEIVING POWER MUST BE EQUAL, &c. 81 farther given a general description of power, and persons*— It now remains to say, how power should be divided,and the persons it should be divided among. And - first we may observe, that power must be divided equally — In Not equal in ,..,.. , , i v • i 1 measure, but vain do we divide it iora balance, unless we so divide, as to make some p , ira ii t .| m kind of parallel footing, and equality— And here again, it must be also ^un- observed, that this is not a precise, and mathematical one, such as depends upon strict accuracy, and dimension, but a general and substantial— It is not the " <*p»fyxw to i«V equal in number, but the " Myu to kxt a£r/i/"+ parallel in dignity — It is this, that will preserve the correlative parts of Government^oth in their Legislative and Con- stitutional relations — That will enable them, at once to proceed equal- ly in their functions of making laws, and also which is the foundation of it, to maintain their place in the Constitution, or form of Government. # % CHAP. XXIX. THAT THE PERSONS WHO ARE TO RECEIVE POWER MUST BE RENDERED EQUAL TO MAKE A BALANCE. AND if power must be given equally to make a balance, so must Persons who the persons who are to receive it, be rendered equal — For as power) ren- we saw in our nineteenth Chapter that a division of power, depended ? ( f ^akeli upon power, and persons, so in endeavouring to obtain this balance, balance. ..^ we must look to both — If power then must be given equally, so must the persons who are to receive it, be rendered equal— But this equality Nor a again, it must be observed, must (like that of power in the last chap- Epical, ter) not be a precise, and mathematical, but a general, and sub- but s« t,erii, > and substan- • jl stantial. * See for above in order, Chap. XX, XXI, et sequentia. t Plut. Symph, . " . M - HL I *#♦ #* W & *s* • * ■i 1fc *t & ■■ '*■-
.# m & w « S4 * TO MAKE PERSONS WHO RECEIVE POWER EQUAL, the Great, give them an opportunity, and you will always find them a separate Interest — In a city, a town, or a district, where they have an object to contend for, and can contend with the rich, you will always see them come forward with the most active hostility — Then you will see, whether they are an ORDER, or not, an ORDER with distinct predilections, and interests. They will then shew you that they consider themselves as such, and that in all con- tentions where they can contend, they are incapable of assimilating with the others. No coose- Nor is it of any consequence, where these spirits appear, whether spiritsl^pear! "1 a town, or a village, an empire, or a district — They are equally feel- ings grafted in human nature, whatever their exemplifications* — Does anyone suppose that there cannot be a MONARCH in a vil- lage, or an ARISTOCRACY, or a DEMOCRACY ?f Can't be These feelings then, being in human nature, how can we ever hope eradicated. { eradicate them ? How can we ever hope to undo what Provi- dence has done, to make man lay -aside his feelings, and to become, as it were, a new creature ? And yet we evidently indulge this hope, if we expect, a balance, by separating men from their ORDERS — By cutting and carving these ORDERS into parts, and then hoping that they will oppose each other. monar- L^ us just suppose ARISTOCRACY, or DEMOCRACY i; ii Y can't (MONARCHY is out of the question, as we said, being in- capable of division) split into parts, and that each of these parts, or bodies, had an equal degree of power, assigned them — We shall ARISTO- take ARISTOCRACY for instance — We shall suppose that di- cracy ? vided into bodies, and that each of these bodies, was intended Would make, judge, aod to oppose the other — The question is, would they do it ? AVould forTwuoT-they exercise the LEGISLATIVE, JUDICIAL, and EXECUTIVE DER. * See the grand passage of Montesquieu quoted in our 13th and 29th pages. + See again Grey's Elegy in a church-yard. -£ i *&; • ~Jn J* ** -Jm Hi :* ■ SB?" r. *m+*'* Jfc ' mw ^^j* W% . ■ ft « l <&*4 MUST BE DIVIDED BY ORDERS. 35 powers against their own ORDER ? Can any one suppose it ? Would not they make laws in favour of their own Order to-day, expecting a the same favour to-morrow ? Would not they determine causes for their fellows at one time, expecting a return at another? Would not they execute, carry on, and administer the daily government of the country, in the same way, expecting allthis, and tenfold more in retribution ? Would not the\', and the other Order in the same manner ? Every one DEMO- feels it, every one thinks it — Every one must be convinced, that there is CRACi % ^ _ . same. in human nature, a common sensation of sympathy, and interest — It is upon this principle as ajrule of mercy, that the juries in England, are always chosen out of a man's fellows, it being understood, that in that way, he has a better chance for his life. ut still the delusion may return, that some separation, some division For every may be effected— But it is but a delusion— What division can be art , i ? cial re ' pulsion, a accomplished, when for every repulsion you create, PROVIDENCE thousand na- has implanted a thousand attractions? tions. The plainest proof of this appeared in antient Rome, where the Go- Proof ia vernment, as we all know, consisted of Consuls, Senate, and People. — . - £ W r ell then, there were three bodies, certainly separate, and so separate xhreebodies. that Pofybius mistakes them (with all deference to so great an Author) for ORDERS, boasting moreover of the balance arising from them* — ^ Was there then this balance, or did it arise ? It so little arose, & ■£ that we hear of nothing in the whole Roman history, but disputes between the Plebeians,and Patricians,conducting too often to convul- sions — Though there were three bodies, there were but TWO disputes, «l or sides of a dispute, that is PLEBEIANS, and PATRICIANS— Herethen is the strongest proof,the disputes corresponding to the num- ber of the ORDERS— That there were but TWO ORDERS,is plain/or But two Cicero pronounces, that a Government of THREE, " would be the 0RDJiRS ' best," that is, talks of it as a desideratum, which he could never have r > | * v Ot< upi voXiriia. j ix nANTflN TflN EIAflN cvnarSeec, mi on j t$» 'Vupaim iVri TOIATTH, Pol, Vol. III. p. 3. Ed. Lips. 1764., * •jv '•«• * Hi *W>^ «*f' ^% m ■ Ik m : % 'fHTHl ; ~J-1 strongest kiud. m> # -» ^ ^t # '■ *£ 86 TO MAKE PERSONS WHO RECEIVE POWER, &c 3tlM done,if it had existed already-}- —Besides the thing was evident from the very nature of these bodies — The Consuls were the same as, the Senate, \ fr for they had neither standing (being only annual) nor authority (be- ing under the Senate to a great degree) nor distinet Interest sufficient, which is more than all the rest put together (being Aristocratic,) ■■'■ Proof of to constitute them a different ORDERS— And it is to be ob- served, that the very nature of this proof is of the strongest kind, for it at once shews that bodies are nothing, and that those given as an example, were as distinct as possible, from their being mistaken for ORDERS. * It is then clear as day, that no balance, or opposition, can be ef- No balance - i j- t» i expected fected, by placing power, in different bodies — Regulate, and model t at way. ftipm, as you will, you always leave that spirit, which will predomi- nate and influence them— If then, you split, and divide them in in- finitum, what do you do ? The tyvx*> (or soul) still remains— It is"totura fr in toto,et totum in qualibet parte"— You can never extinguish it — You - # might as well limit the effect of those figures in Arithmetic, which ever give the same results— You might as well controul the erup- tions of Mount Vesuvius, which always, throws out Hexagons — You might as well turn the bowl from its bias, or the Magnet from- the jkf Pole, nay alter the principles of Causation itself, as change, these incli- nations from their leanings, alter these biases from their propensities, fc Ileal o>posi- ^ ie rca ^ opposition then, is opposing the ORDERS to each othei — ■ ^ ^ 9t t tion b tiveeu They have a real antipathy, and hostility — They will never join,you may ▼ tlio Oil- • DERS - I ^ ^0 ^ + a £ sse optime constitutam rempublicam, quae ex tribus generibus illis,REGALI, OPTIMO et W'A '4^ m POPULAR! sit modice confusa." Fragm. do rep. lib. ii. ... m i .^^ i ^ T^f * .+ yRwf % An ORDER is a class or raDk of men, with different interests from other ranks, and classes. * ^ '. ' If we want more proof that a Government of three such, did not exist at Rome, we have also Tacitus' authority on the subject, who not only thought it did not exist, but that if it could exist, it could not long continue— " Cunctas nationes, et urbes, POPULUS, aut PRIMORES, aut I 4J^& 0^ 5INGULI, regunt: delecta ex his, et constituta reipublicse forma; laudari, facilius quea eveuire, vel, ci cvenit, haud diuturna esse potest." An. 1. iv. • *•< JF^**±M':<~*-^»u 07. «*<* ■m . ^ * » E *■ % ** * m. Mr '* • .?*, "♦ *, •>■* -^ ^9p THE THREE POWERS CANNOT BE VESTED IN ONE ORDER. P^ ^ gg fejS. 4ft. ■ • ** be assured, except for the purposes of opposition, that is counteracting some predominating force, or Order— Any other is totally accidental, or >2^*w^* 4j rather out of the question,and therefore you are not to reckon on it— This opposition then, of the ORDER, is the rcal,the natural,the secure, the only to be depended upon — Any other is perfectly Utopian — Perfectly Utopian,because founded upon false hopes,upon the idea that man will change his notions, and from a social, become an insulated, an inde- ♦r^fc ..<* pendent, and chimerical animal CHAP. XXXI. f* dT * * THAT THE THREE POWERS CANNOT BE TESTED IN ONE ORDER TO MAKE A BALANCE. W- THAT the three powers cannot be vested in ONE ORDER, Three would follow from the nature of the thing itself, if it did not no7be\csted % * from the argument of the preceding chapters — Power must be order to balanced — To be balanced, it must be divided — But how can it betake a divided, if it be all vested, all its constituent parts LEGISLATIVE, JUDICIAL, and EXECUTIVE in the same Order ? * But to be proved is hardly enough— We ought also to See ex- see the exemplifications of these powers in ONE ORDER, that we ™j£ fica " may be able to judge of their effects in practice. And first we say, as to MONARCHY, where do we find an ex- in MO- ample of that ? We find it in the tyrants of Greece, we find it in the L A C ' ^ Monarchs of Persia, we find it in the Despots of Africa, we find it in the history, and this last chiefly to be remarked, of the Roman - *» ^ Emperors — There we see the abuse of power, marching exactly hand in hand with the possession of it, till its wantonness rose to a puerile extravagance — And this is the characteristic of DESPOTISM, * * * m % 1 ■ **** *;# :"■■■ "" ^l*. # . • '** . * ... * / 83 * THE THREE POWERS CANNOT BE VESTED IN ONE ORDER. ARISTO. CUACY. DEMO- CRACY. * i that passion, and power, being concentred in one focus, produce the hottest tyranny. fl The next is ARISTOCRACY—This, as we said before, degene- rates into OLIGARCH Y— Here we have a tyranny of another nature, it is pride grown into insolence, outrage, and oppression — It is not, cannot be, so hot a tyranny as the other, but it is nevertheless fulL of much severity, and grinding — If we wish to see an example of this, we have only to recur to the Aristocracies of Greece, which, as soon as they became OLIGARCHIES, were suspended.* The last is OCHLOCRACY, for in DEMOCRACIES, as we know, the three powers come to this termination — And this is a tyranny of a new kind, shewing different characteristics from either of the two former — It is either a Demagogue got possession of power, and committing crimes for his own safety, or it is a Few lording it over the rest, or it is a Mob, in the agitation of its frenzy, pulling down, and destroying every thing-)- — In all these different shapes, it takes on the resemblance of the rest, but in all it preserves its own character- istic, of envy, and malevolence against the rich, and better born, and original iHiberaUty arising from want of education J — There is, if we may so say an additional irixponw, or bitterness in its excesses, from the remembrance that the former were greater. § Thus then, it appears that whatever Order receives entire power, entire pow- ^ rd ^ q vc ] cy 1S sure ^ a b use it — That these excesses moreover take er, sure 10 abuse it. the colour of their Order— In MONARCHY, it is caprice and wan- t See for puerility, the story of Caligula triumphing over the sea, anil gathering Pebbles by beat of drum, for cruelty, Caracalla driving a chariot along the Mole near Naples, and overturning peo- ple into the waves. * KatTrrravtro. + An eminent example of this appeared in the cities of Greece — There we see the effects of the three powers in the Multitude, taking the different course of DESPOTISM, OLIGARCHY, or OCHLOCRACY, according to their different situations. Sec for this Pisistratus, Draco, and the other exemplifications. ■*%!* X AnXtvQiforr,!, § See if this was not exemplified in France, in the years 1792, 3, 4, et sequcntia. ORDER m .4fk THE THREE POWERS CANNOT BE VESTED IN ONE ORDER. 89 tonness*— In ARISTOCRACY, insolence and out ragef — In DE- MOCRACY, malevolence, and envy.J And hence the absurdity of those, who think they have got liberty, Some by placing power in a particular ORDER — One set of men, the friends people. of DEMOCRACY, would give the whole to the People, as if liberty consisted in a King, and Nobles not having any — Another set, the friends ^Q e >{° Fq of ARISTOCRACY, would give it to the Nobility, in order, as they say, to bridle the multitude, without ever recollecting that the Nobles re- quire to be bridled themsel ves — A third set.the friends of MONARCHY, Some to . ... . . KING. would confer it on a King, as if order, which is their way of it, and which is liberty too, properly taken, consisted in domination. But liberty consists in none of these things — It consists not in the Liber *y . ° none of these rule of a King, or of a Nobility, or of a Rabble, but in the proper things. restraint, and opposition of them — It is the bridle, and curb of passion, and prejudice, not their gratification, or indulgence. § And there cannot be a greater mistake in Government, than to Great mh ~ • • i- -m • i'M -nt take to sup- think that liberty does consist in these things — tor what is liberty? Is pose it. it not the proper enjoyment of Life, Property, and Free- agency, those Civil rights, those original privileges, which, as we said in our first Book, could never be taken from man ? || And if it be the proper en- joyment of these things, what does it signify whether they be taken from him, by a Monarch, a Nobility, or a People ? It is all the same thing— It is all equally privation, it is only done in a different man- ner. And that absolute MONARCHY, ARISTOCRACY, and DE- J?°*?ar. * YGgtt, or affront. + nxseve|/«, or overbearing. % Tlixporris, or bitterness. § All these things are best expressed by negatives — It is the idea of the laws being equal to all— - Not, as one of the antients expressed it to a Legislator, that his laws would be like cobwebs, the small flies caught, but the large break through. 11 See Book I, Chap. III. and IV. N 90 THE THREE POWERS CANNOT BE VESTED IN ONE ORDER. aristo- MOCRACY, do all take away these things, is equally clear as we have demo.' been just proving — For what is the simple idea of them ? — That there absolute' * s Supreme power in each, equally unlimited, equally absolute, equally takeaway arbitrary, — And if there be this Supreme power in each, equally unlimit- leges. ed, equally absolute, equally arbitrary, what is to hinder them from do- ing what they please, there is no law to controul them, that is, the ORDER ? Now let us keep a clear idea of this, the ORDER— There is no law to controul the ORDER (because there is Supreme power) therefore tyranny, in it — It can do what it pleases, whether it be MO- NARCHY, ARISTOCRACY, or DEMOCRACY. Government But it may appear perhaps to some, that, because this Supreme dividua^no- P ower * s not m an individual, the idea of tyranny is dissipated, and thiug. removed — But what is the idea of tyranny, or a tyrannous Govern- ment, in its simple and best sense ? Is it not absolute, or uncontrouled Government, the uncontrouled Government of ONE PERSON ? That PERSO N acting upon other persons,according to his own will, without a balance from the will of any other ! — Now take either MONARCHY, ARISTOCRACY,or DEMOCRACY,have not they all been proved to be ONE PERSON in the idea of sympathetic,and congenial ORDERS within themselves, never detaching themselves from the members of their own body ?* And if they never do detach themselves from the members of their own body, are not they all to be considered as ONE PERSON, all in the sense of Government, as a single personage, or individual, contradistinguished and separated from the rest. All tyranny. Another sense there is,of the word tyranny,and that is, not only abso- lute power, but an ill use of that power — Neither in this sense, will abso- lute MONARCHY, absolute ARISTOCRACY, or absolute DEMO- CRACY,be further removed from the word tyranny — Power,always goes to abuse, from the corruption of human nature — Absolute uncontrouled • See Chap. XXX. THE THREE POWERS CANNOT BE VESTED IN ONE ORDER. 91 power then, must be constantly tyranny in its best sense,and every thing but that, in its worst, from its liability to excess, and extravagance — Liberty it cannot be, because that is security for Civil privileges, and positive ill usage it very often will be, from the natural tendency of man to transgress, and wander. Let us take the exemplifications of absolute power in MONAR- Exempiis, CHY, ARISTOCRACY, or DEMOCRACY, arenot they strictly Cat, ° nS ' to be considered, as ONE person ? If it be MONARCHY, will not he lean to himself, if ARISTOCRACY, will not the rich to the rich, if DEMOCRACY, will not the poor to the poor ? Is not that partiality, is not that human nature ? — Will not they always more, or less favour their own set, can they do otherwise than feel a sympathy with, and act for it, and if they do, can they be other than ONE PERSON ? But this is not all that they will do — They will sometimes come win not forth in active hostility against the rest, that is, the other Orders, |L? Tour and not only get the most power they can for themselves, but extend 8et > but at- that power to injuring, or abolishing them.* Whether then we take tyranny in the sense of uncontrouled power, or uncontrouled power exercised to abuse, absolute, unbalanced Go- vernment, in any ORDER, is equally within the sense of it — The true meaningof tyranny ,is,"absolute uncontrouled Government/' whether that Government be, of MONARCHY,ARISTOCRACY, or DEMOCRA- CY — There is no other rational sense of it,no other meaning, that is in- telligible — Tyranny is either the possession, or abuse of power, and in a Legal sense, that is, the sense of Legal Government, the possible, is the actual,abuseofit — It does not signify then, whether a King, a Nobility, or a People, violate man's privileges — Whether his safety be at the plea- sure of a MO NARCHY, an ARISTOCRACY, or a DEMOCRACY— * See History of England when the Long Parliament, or DEMOCRACY abolished the Hou*« of Lords. N2 OB. own 92 THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. Three pow. In whose hands he is — To whose mercy he is abandoned — All isequal- ers can- n • n 1 i not be vested Jy tyranny, all is equally uncontrouled power, all is equally, that order to wn i cn should not be, for the reasons given in this chapter, we may make a therefore conclude in the words with which we begun, " That to balance. » make a balance, the three powers cannot be vested in ONE ORDER/ CHAP. XXXII. THAT THE THREE POWE11S CANNOT BE VESTED IN TWO ORDERS TO MAKE A BALANCE. Two ways of vesting the powers in TWO Or- ders, in in. tegro, and partim. In integro- Whole conv binations in integro, eighteen. THERE are only two ways of vesting the powers in TWO OR- DERS^ and that is, inintegro and partim — In integro, where each OR- DER shall have an entire power, or powers separately, and partim, where they shall have parts of them jointly. The latter of these modes would afford such endless complications, that it is impossible almost to consider it at all — What we may say of it in the meantime, applies equally to both, and that is, that neither of them would afford that balance, which is the basis of true Go- vernment. But it is proper to enter a little further into the subject — It is pro- per to examine the distributions in integro, for they really can be examined — This will let us into the nature of the powers, and enable us to observe their influence upon one another. And here it is to be remarked that the whole combinations of the* powers upon TWO of the ORDERS in integro, are eighteen. Figures will do that for us—In the first place, of the ORDERS themselves, there are three,KING,and NOBILITY,KING,and PEOPLE, and NOBI- THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. 93 LITY, and PEOPLE*— Upon each of these, there are three combi- nations of the powers forwards, that is, giving two powers to the first named, and one to the last, and as many backwards, reversing this order, which makes six combinations of the powers, upon each com- bination of the ORDERS, of which, there are three, in all eighteen. — Of these eighteen, there are only eight, that are at all practicable, Ten impos- the People being totally unfit for the Executive, or Judicial func- SibIe " tions, of which kind, that is, which throws these powers into their hands, there are ten — Indeed Nobility itself is not very well adapted for the Executive, on account of the promptitude it needs, requiring a single person, but even admitting it were, in that way, there would be only eight, in the other, fourf — Taking then these eight as the only practicable, the others are to be thrown out of the question — If any- one wishes to see this, they have an opportunity in the following table. IMPRACTICABLE. PRACTICABLE. Tabic. KING AND NOBILITY. 2 to King King Legisl. Jud. Nob. Exec. King Legisl. Exec. Nob. Jud. King Jud. Exec. Nob. Legisl. 2 to Nobility Nob. Legisl. Jud. King Exec. ♦ Nob. Legisl. Exec. King Jud. Nob. Jud. Exec. King Legisl. KING AND PEOPLE. 2 to King King Legisl. Jud. People Exec. King Legils. Exec. People Jud. * The terms are now necesssarily changed from MONARCHY, ARISTOCRACY, and DEMO- CRACY, to KING, NOBILITY, and PEOPLE, because it is no longer a question of consider- ing the spirit of the ORDERS, but giving power to the ORDERS. + Counting the Practicable — There are six in all, which give the execution to the NOBILITY, but two of these are off already, by the people having Impracticable powers. 94 THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. IMPRACTICABLE. PRACTICABLE. KING AND PEOPLE. King. Jud. Exec. People Legisl. 2 to People People Legisl. Jud. King Exec. People Legisl. Exec. King Jud. People Jud. Exec. King Legisl. NOBILITY AND PEOPLE. 2 to Nobility Nob. Legisl. Jud. People Exec. Nob. Legisl. Exec. People Jud. Nob. Jud. Exec. People Legisl. 2 to People People Legisl. Jud. Nob. Exec. People Legisl. Exec. Nob. Jud. People Jud. Exec, Nob. Legisl. Jlow far From this it appears that there are ten of these combinations purely remain & speculative,because in ten,there are functions given to the People,which expedient-- j t j s no t only unfit for, but absolutely incapable of, exercising — Such are pabie of ex. the Executive andjudicial, one of which, requires a promptitude, and functions. *" the other, a disceptation and decernment of merits, of which the Many are totally incapable — Taking then the eight that remain, the question is, how far they are either good, or expedient — To begin with the first, King, Legislative, Judicial, Nobility, Executive — Here independent of the balance, we shall find that the ORDERS here named, are not pro- perly qualified to exercise their functions — TheKing has the Legislative, andjudicial — One person, not to talk of the Judicial, cannot be sup- posed qualified for Legislation, which has generally been consider- ed as the function of a greater number, from the necessity of a variety of views, and being sure of reaching all parts of the subject — Again, how can Nobility be properly Executive, which, from the promptitude it needs, ought to be the province of a single person — The next is King, Legislative, Executive, Nobility, Judicial — Still the King has a power that does not belong to him, though it is so far better, that Nobility is Judicial instead of Executive, and the King, vice versa — THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. But still there are other reasons, which make Nobility not the best Judicial, from considerations of impartiality, and justice — The next is, King, Judicial, Executive, Nobility, Legislative— Here the Nobility may be composed of such men, as shall make good laws, and it may be a state wisely enough governed, setting the balance out of the question — The King may discharge tolerably well, the Judicial and Executive functions, having no strong interest to bias him, but then the laws must not be complicated, besides that the former of these requires more time, and attention, than Kings are apt to bestow — The next is Nobility Legislative, Judicial, King Executive — Here then are the same reasons in favour of the Legislative, and against it as before, and near- ly the same against the Judicial, leaving the Executive in the middle — This may be a wise, but will be a corrupt, that is, a partial, and se- vere, Government — The fifth is Nobility Legislative, Executive, Kin<* Judicial — This will be less oppressive, but still in a great degree, arising from the partiality of the Nobles to their own ORDER, besides the inconvenience of slowness from the promptitude required in the Executive— The Judicial as remarked on before, that is, a King unfit, or at least, not very fit to exercise it — The sixth is Nobility Judicial, Executive, King Legislative — This will be tyranny in the one, and partiality, and slowness in the other — The seventh is, King Judicial, Executive, People Legislative — This will be the most precipitate of laws, the multitude being incapable of thought, or deliberation, judged on however and executed tolerably — However it might be managed within, and it would be managed very ill, it would be absolutely incapable of standing against foreign enemies, if, as would be the case, the Many had the dictation, or at least the sane • tioning of public measures* — The eighth is Nobility, Judicial, Execu- * See the reasons given by Polybins, why (he Romans succeeded against the Carthaginians, tiz. that the Senate managed all at Rome, the Multitude (at that time) at Carthage. See the pas- sage, Ch. xxxiii. See also many other instances, the reverses of the Athenians in Sicily, owing to the Multitude, &c. &c. &c. 95 96 THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. tive, People Legislative — This would be the same thing over again with a litre more partiality, and slowness— Thus it appears, that all these powers independent of having no balance, being so distribut- ed, would be absolutely ill administered, from the incapacity of the ORDERS to exercise them*. Balance ]3 ut t jj e balance, is the most important consideration— It is there, gre.it con- sideration— as we observed, that the true foundation of Governmentlies, the right basis of all Legislation— And it is in this, that the above distributions ap- pear more deficient if possible,than in the incapacity occasioned to ex- ercise the powersf — King, for instance, Legislative, Judicial, Nobility Executive — In this there is no balance at all, making laws, and judg- ing on, being incomparably greater than executing them, so that the Government would be totally tyrannical — Again, take King, Legislative, Executive, Nobility, Judicial, there would be still sucn a swing in favour of the King, from the powers of making laws, and executing them, that the Judicial would not be able to balance it, even with the most flagrant decisions (always however within the Constitution^) not to mention, that this power might be fettered further still, with Legislative restrictions — King Judicial, Executive, Nobility Legislative, is the next — Here almost the whole power is thrown on the side of Nobility, by allowing them to legislate, which they would do, for their own ORDER. § We may be assured that • * It must be seen that there can be only eight Practicable, the six of King and Nobility, where the People don't enter, and the two Legislatives in the People, joined with King, or Nobility, the only time, that the former, that is, the People, have not either the Judicial, or Exe- cutive, of which, as has been said, they are incapable. + As in case of the Multitude having the Legislative, where their very precipitancy occasions ti swing, and destroys the balance. % That is, not pretending to contradict a law, but pervert it. § It is to be observed here once for all, that when we talk of these Constitutions, and the balance arising from them, we suppose them executed — If not, they are no Constitutions at all, it is impossible to say what they are— It will depend entirely upon the Orders exercising the powers, how the balance will turn out — It maybe said,for instance, that the Judicial, and Executive are strong against the Legislative, because they may refuse to judge and execute, or may judge, and eiecute contrary to, the laws — To this we answer, that they are then not the Judicial, and Executive) THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. 97 the laws would take that direction, and Judging and Executing are but a poor balance, where Legislation as it always must be, and it has already been proved to be, is the soul and essence of the State, for the rest is only following out, and realizing^ — The next is Nobility Legislative, Judicial, King, Executive— This would be oppressive in the highest degree — It would be giving the whole power to the No- bility, for the King would be little more than the minister to execute its commands — Nobility again Legislative,Executive,King, Judicial, makes the King only a Judge* — Nobility Judicial, Executive,KingLegislative, throws the whole power almost to the King, as may be conceived from what has been said before — The remaining two are, King Judi- cial, Executive, with the People Legislative, and Nobility the same, ' either of which, besides making a precipitate Government, throws the power into the hands of the Many, so that all thoughts of a balance may be laid aside. Thus it appears, that whether we consider the ability of the Or- Divisions be- ders to exercise the powers, or the balance occasioned by the dis- orders in tribution of them, the divisions between two Orders in integro, are inte s ro i bad '; equally bad — Ten are absolutely impossible, and eight are such, as no man would wish to see — Such, as are so defective in balance, that they cannot in any way produce that counterpoise, so indispen- sibly necessary in good Government — We must then betake our- Partim, selves to the modifications of the powers between TWO ORDERS, equMy ' partim- — And here we say that they are as ill calculated, and as ill fitted to the full, to obtain this counterpoise, as the other. not being " In the Constitution" — The only way then of taking the thing, is to suppose, the Constitution executed, and then we know what we are about, and say as above — We shall extend this observation further. t See Chap. XX. * The Kings of Persia, administered justice in their own persons. O 93 Innumera- ble. Common PRINCI- PLE. Hostility of ORDERS. Ad inter' necionem. Destroys balance. THE THREE POWERS CANNOT BE VESTED IN TWO ORDERS. For in the first place, as we said, it is clear that these modifica- t\ons,(partim) may be multiplied in infinitum, and in such a manner, as to defy enumeration — But though it may be impossible to enumerate them, yet it may be very practicable, to find a common PRIN- CIPLE, which applies to both, and which will effectually determine the question for us. That common PRINCIPLE is the known, and perfect hostility of the ORDERS to each other — Whatever two they be, which com- pose a State, whether King, and Nobility, King, and People, or No- bility, and People, they will invariably be inimical, and hostile — If it be King, and Nobility, it will be, the King trying to put down the Nobles, and the Nobles the King — The one canvassing with all his power, weight, and influence, the other with patronage, and protec- tiont — If it be King, and People, it will be ambition, and grasping of power, against turbulence, and popular violence^ — If it be Nobility, and People, it will be the same thing in another shape, it will be the Nobles endeavouring to oppress on one hand, and the Many oppos- ing them on the other, and the more so, that their leaders will in- flame them further, by representing the former as tyrants.^ Hence it appears obvious, that wherever there are TWO ORDERS in a State, these Orders will be hostile, and rival spirits, never satis- fied till they accomplish each other's destruction— The testimony of his- tory proves it— They will be for ever on the watch, and they will be so intent to extirpate their enemy, that they will never hesitate to do it, at the expence of ruining the State, as they will infallibly find the opportunity. Whether this situation be a good one for the balance of a State,, cannot admit of much question— It will have the certain + See Scotch History, as quoted here afterwards. £ See the examples of Messene, and Argos, as represented by Plutarch, also of Charles U of England. § See the Tribunes at Rome. THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. 99 effect of keeping it in agitation, by the constant broils, and conten- tions it breeds, besides exposing it to perpetual revolutions. But whether again, all possible modifications of the powers between two ORDERS partim, must of necessity leave this hostility, or whether the Governments we have seen are to be admitted as a proof of it, may yet be doubted— The modifications, as has been said, it is im- possible to number — But we may examine those that have been, lo pro- and if we either find that they were all of TWO producing hostility, or^a* 3 ° that in proportion, as they were of TWO, they did produce it, it will be sufficient to establish our premises. CHAP. XXXIII. THAT IN PROPORTION AS THE THREE POWERS HAVE BEEN VESTED IN TWO ORDERS, THEY HAVE BEEN DEFECTIVE IN BALANCE, IN reviewing the early Governments of the world, we find little to 8 " 1 * 00 - • « •' " ta« ia • it*ii. vernmenti. excite our curiosity, or interest — In Asia s the Assyrian and Babylonian ASIA, empires, afford rather the pictures of tyranny, and Despotism, than any thing else, and the Persian Monarchy, is an instance to the same purpose — There the Sovereign was approached with almost divine honours, and never treated but with the most extravagant demon- strations of respect — In Africa, it was with few, and is now per- AFRICA* haps, with no exceptions, not so much the elevation of the Monarch as the depression of the human race — There the people are not treat- ed as such, but as mere tools, and play things, made for one man's sport s 02 100 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. AMERICA, and pleasure* — In antient times, America was not known, but as far as it is known, in the southern parts, we see nothing in the histories of Montezuma, or Atabaliba, to rescue them from the general charac- ter of Despotism — In the northern, the dependencies of the tribes are so loose, and so particularly appropriate to the purposes of war, as hardly to deserve the name of social union. EUROPE. Europe still remains, and to Europe, attempts at Legal Government were confined in a great degree. But before we begin with this, we shall take notice ofwhat have been esteemed more regular Governments in &sytt- Africa.— iEgypt was the first of these — OveriEgypt a Monarchy extend- ed — It was governed by a King, but subject to the customs of the coun- try, in matters of Religion — If ever there was a country that respect- edits religious institutes, it wasiEgypt, so that the Sovereign was per- fectly regulated by them— In other respects, the Government was ar- bitrary,f indeed society had not then sufficiently advanced to admit of any competition of Orders. Cartilage. The next Government was Carthage — Carthage consisted of the SufFetes,J the Senate, and the People — The Suffetes were a kind of Kings, Consuls, or Dictators, with annual power§ — They were two in number, convoked the Senate, or ZvyxAn-ro?, || presided in it, told the voices, and commanded the armies — The Senate^f was composed of persons the most distinguished for age, experience, birth, riches, and merit — They deliberated on affairs of State, declared peace, and war, * King of Dahomey furnished his palace with human heads. + The erection of the Pyramids was a pretty good proof of this. £ Derived from the word Sophctim, which in the Hebrew and Phenician ?anguages, signifies , Judges. . § Ut Romae, Consules, sic Carthagine, quotannis, annui bini reges creabantur, Corn. Nep. in * "vita, Hannibalis. |] Senatum itaque Suffetes, quod velut Consulare impcrium apud eos erat, vocarerunt. Lir. xxi. n. 7, called XyyxXyjTos by Pclybiu?, as was also the hundred and four, now going to be men- tioned, or TtfHcrix, \ Probably six or seven hundred. \ THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. 101 heard complaints from Provinces', admitted Ambassadors to audience, received letters from Generals, in short determined every thing, e-xj-: cept where they were not unanimous, in which case, there was,an, Ap- peal to the People — From the Senate again, were chosen a Hundred • and Four, the rfp*9-**,t or Council of Old men, intended as a balance to the Suffetes, and Senate,:}: like the Ephori at Sparta, as also a Judicial, for trying their Generals at their return from war§ — Lastly, from these Hundred and four, there were Five chosen, who had more authority than the rest, a Court, of Review, who elected in on va- cancies to the Hundred and four, and to themselves — It may be added that, when the Suffetes went out of office, they became Prae- tors, or Great Judges, || with the power of proposing and enacting new laws, and calling to account the receivers of the public re- venues, which power Hannibal exercised in an extraordinary manner.^" This was the Constitution of Carthage, and it may be known from An Aristo - , , cracy. if, that it was an Aristocracy — The Suffetes, and Senate were the Nobles, so were the Hundred and four, and if more were neces- sary, to these were added the Five, who chose in on vacancies, to, the Hundred and four, and to themselves, without mentioning the Prae- tors or Great Judges, who were the Suffetes expired in Office — 1 Ann. Carfb. 457, the same as the Hundred of Justin, sec the following quotation— Dein. cum familia tanta Imperatorurn (Imilco, HaJ.uv vQtm, rrjv xxi tui BAXiAEflN, mportQiurav twixpuxi xvpioiyv oAHMOZ. Piut. in Lycurg. Ed. Tons. Vol. i. p. 93. § 4>e) ytvtaQxi Tvpxmox y tcv A»j/*ov xvxppuvvvTuv. Plut. in Lycurg. vol. I. p. 91. From which circumstance it avoided the confusions that had taken place at Mcssene and. Argos as we are told by the same author. O xxi (axXicttx t*j» Avxupyu ao^ixv xxi "rrpovotxv vrroiYiai tyxvtpxv as txs Mhtgwiuv kxi Apysiuv, avyytvuv xxi ysiTOvuv An^uv, xxi BxaiKtxi irrxaets xxi xxxoTiokneixs xtyopucrtv' Oi tuv lauv (with the Spart.ms) xii xpyys Ttrvy^xoTts , iv £s tu xKypu xxi wAsov tyj.nxuvuv £e|aym, ux iiri TroAty ypovoi ivoxi(Aotrjpu TujV BxaiXiuv, tix cvvii9ix Ja tuv OyXuv^ tx xxGiptutx avvTxpx^xvTis , i^u^zv oti Qtioi rjv US X~kWUS IVTW/yiKX TOIS "ZltxpTIXTXISjO TV)V TtoXlTtlXV xpiA0jy, us xXiov ((xQxXXuctiv xvTy, tvv Tut H$cpuv ivvaiji.iv. Pint. vol. i p. 93- as before. § TpiTov itxpx Axxwxipoviois oi BA2IAEI2 uioiov lyjiat Tm xpyyv t ot St irpoaxyoptvo^.tvoi rEPO.\TE2 hxCiv- it XV) KXI fU0' UV } IfXVTX XJtipify TXI TX KCtTCt T)JV TfoXlTUX*. Poljb, Vol. ill. 1Q4 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. The authority of the Kings was but limited, besides, whatever they had was included in the Senate, for if they had been opposing one an- other, the Ephori would never have been added to controul them — They were moreover both considered as one, for when the Senate is named, it is said to consist of thirty, whereas it was only of twenty-eight, when the Kings were not counted—The People were totally excluded — Though the Ephori were chosen from among them,. this only diminish- ed the power of the Kings, and Senate, without increasing theirs, for they were kept under by wanting the power of discussion — They might have rejected the decrees, to be sure, but this was but a barren power, and not apt to be exercised, when we consider the superior advantages of modelling, contriving, embarrassing, and re- turning eternally the same upon them, aided by better abilities with more enlightened education — Poly bins therefore), with all defer- ence to so great an author, may be surely said to be wrong when he calls Sparta a Government of THREE ORDERS, which he plainly does, when he boasts of the men of his day having experienced the ad- vantages of such, and gives this very Government as an example of it.* And indeed it was an Aristocracy in the very beginning, at least as far as Lycurgus had to do with it— We are told that when he returned home, being elevated with the Oracles delivered in his favour, he brought the Nobles into his views, and established his Republic by coercion-}— This then, is a pretty good hint, both to those who expect that Governments should be pure in their begin- nings, and that every Republic that bears the name of equality, should he i\ee, that is properly so— Sparta was the very picture of equality, • Atj? >6 » 7 « f , »s apiarw p.w yyvrto* nroXiruxv r»jv sx nANTHN TflN nPOEiPHMHNHN (ElAnN) o-vno-Tuecui, mm yxp m pipus, 8 teyu [*ovov, aXK i^u, iftipav ti^vpx^tv, Avxt'pya avarviMtros vpum JMTU TbTOV TO* Tp°tl01 y TO AuKitxi^OVIUI Wo/UTEl'/X.*. Pol. Vol. \\\. p. 4. Villdob, C(J. f E«*tf6w Se t«twj vgooyyt ms API2TOY2— Pint. Vol. i- p. SI. THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. . 1Q5 and yet it was an Aristocracy* — But freedom in antient times, very often meant only being Ay-wopo*, or independent, that is, not governed by other nations, no matter how much tyranny within — Sparta lasted 700 years.t The next Government is Athens^ and that indeed was of a very Athens, different nature — It consisted of the Archons, the Senates, and the Peo- ple — The Archons, ten in number, came in place of their Kings, and corresponded to those of Sparta, but with far inferior authority to both — They were originally instituted for life, afterwards for ten years, and in Solon's time, for one only — Two or three of them, were judges, and the rest had municipal functions, such as the care of the police, the charge of seeing the laws executed, supplying the city with provi- sions, and others of the like nature — They were chosen by lot, and from the People. — The Senate were all chosen in the same way (an- nually) — It was their business to prepare, and digest matters before they were brought before the People, being instituted for this pur- pose by Solon, that nothing crude or immature, might come to such a precipitate multitude — This was called a TrpoSuXsu^a, or preparatory resolution, and if it was approved, it passed into a law, if not, it had only force for a yearj — In the Assemblies of the People, " all the " great affairs of the Republic were discussed — It was there, that u new laws were proposed, and old amended ; the religion, and " worship of the Gods examined — Magistrates, generals, and officers „ " created, their behaviour, and conduct enquired into, peace, or " war concluded ; deputies and ambassadors appointed ; treaties, and * It is said that Lycurgus returning from a journey, and observing the perfect equality of the reaped corn, as he passed through Laconia, remarked to those that were with him, smiling, Does not Laconia look like the possession of several brothers, who hare just been dividing their inheritance among them ? + It may be remarked, that the very passing of the decree of Theopompus, to dissolve the Peo- ple as often as they attempted discussion, see p. 103, is a proof how little power they had. X It was upon this that Anacharsis observed to Solon, " I wonder you should empower the wise men only to deliberate, and debate upon affairs, and leave the determination, and decision of them wholly to fools." * P 106 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. "alliances ratified ; freedom of the city granted, rewards and " honours decreed for those who had distinguished themselves in war, H and rendered great services to the Republic, and punishments or- " dained for those who had behaved themselves ill, or had violated u the laws of the State, and were banished by ostracism — In fine, "justice was administered, and judgment passed there upon the " most important affairs,* on all, except what related to the Areopagus, "who had a high jurisdiction in criminal cases, and the supreme " superintendence of Religion, Morals, and Manners. t They interfere " edtoo occasionally in affairs of Government/'J Democracy. This was the Constitution of Athens, and from this it may be seen, that it was a strong Democracy^ — Take away the Areopagus, and the People had the whole Legislative, Judicial, and Exe- cutive, in their hands They took measures, made Jaws, and tried causes — It may be said indeed, that if the Senate could not determine without them, they could not originate without the Senate, but this related chiefly to minor laws, and even in these, the rule was not rigidly adhered to — There were for instance, many laws or amendments of laws, proposed of lvhich the Senate heard nothing, as for instance, the famous alteration of Demosthenes to alienate the theatrical Monies given to the People for public en- tertainment, and apply them to the war against Philip — In taking • SeeRollin's Antient History, English translation, Vol. iii. p. 523. Oct. Ed. + They condemned a child to death for making it its pastime to put out the eyes of quails. * Quamvis Themistoclesjure laudetur, et sit ejusnomen, quam Solonis,illustrius, citeturque Sala- mis clarissimae testis Victoria?, quae antcponatur consilio Solonis ei, quo primum constituit Areo- pagitas: non minus prasclarum hoc, quam illud, judicandum est. lllud enim semel profuit, hoc semper proderit Civitati : hoc consilio leges Athenicnsium, hoc majorum instituta servantur — Et Themistocles quidem nihil dixerit, in quo ipse Areopagum juverit : at ille adjuvit Themistoclem — Est enim bcllum gestum consilio Senatus ejus, qui a Solone erat constitus. Oific. I. i. n. 75. $ It is remarkable, that ^characterizing the different nations, who went to the siege of Troy, the Athenians are the only one, whom Homer calls AHMO£, or PEOPLE, no doubt alluding to their popular Government. See Aristotle, also de Rep. lib. ii. c. 12. EmffTosTu^^fMtywywtvtivyctyt^ «v$«y us rni m AHMOKPATUN, THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. iq7 measures, they were supreme, witness the decrees concerning the Mytylenians, whom they condemned, and saved almost in the same day;* and as to law suits, if any. one wishes to know he length,they went in deciding them, both in power and inclination, they may learn it from Aristophanes, who describes a man as making his way through the tiles of a house, to get to the public assembly, and give his vote, he having been confined by his friends on account if his inordinate passion for trying causesf — These things shew what the Assemblies of the Athenians were. But the discussion was the great thing — When we consider how much even the smallest power is reinforced by a numerous Assem- bly, we may conceive what the whole LEGISLATIVE, JUDICIAL, and EXECUTIVE must have been, in the hands of near twenty thousand people, rouzed by the agitation of their Orators— The swell was immense — It was so great, that it became a particular art, to know how to animate them Ha-rponrriv eE^ovr* evnytuxx mv Eaa#&*, as was said of Pericles byAristophanes — And they did rouze and did ani- mate them in such a manner,that nothing could oppose it — It was in vain therefore that Solon flattered himself that having fixed the State as it v were, upon two Anchors, the upper and under Councils,it would be less liable to disturbance, and fluctuation.^ The People would have torn up fifty such Anchors — It is curious too to observe, that as the Ephori were added afterwards to controul the Aristocracy of Sparta " e/*«s Kxparov £T» rnv OAiyapp^av, x«ricrp£upav, 01 pir' #vtoi/ (Avnapyov) cpwi/res GTrK$ywvxv t ««* * See Thucydid. lib. iii. t See Aristophanes, Spwsr. J %v (jTnaa.iJ.zwi h r»?y sv Apvwxxyu BOTAHNsx rut xcer 1 tttxvrov Ap yotrut w hx to Apt-xi (having been ArchonJ x.xt xvros (xsTe«£sy«r/ Vop a t rot AHMON ot^strx xxt Opxa-vto/xstot r-n rut yjjtut apso"£/, Ssvrepxt npotrxx- rivti[At BOTAHN ociro tyvKms iKxarys, nrruput ovaut, txxrot ottSpxs'^ 1711X1 lawyer as tip oQa\ivtit irx%£ raAHMOY, xxi (/.ribet e«y wnpoQttXtvrot its exxXXijcvay usQipiaSxi, T»y S* avu BOYAHN nriawitot irxtruti text QvXxy.x rut yojj,ut ikxQio-iv' oio(/.ivos im Svri BOYAA12 wenrtg xywpxis opi^Htrxv virion it x.iyt/», ev xts o OXA02 X C 'P'&' Tx ^AA xcerac Tn* ioixv ofymv' o y.et o^vTnn x*» ittuff a S/a^tpwyj o ot C«* xzt 9vu.v cvyLitsirxtoivapnQS. Pol. vol. iii p. 63. Oct. Ed. + See Pisistratus, &c. % See Chap. XXI. § It is to be observed before we leave these Governments, that in all 5 the persons who were created to restrain power acquired for themselves — The Ttftatx (at Carthage) were obliged to be reformed by Hannibal,, the Ephori at Sparta imprisoned Pausanias, one of their Kings, without raising the People, and the Senate sided with the Areopagus at Athens, though chosen from the People- But this does not shew that men leave their ORDERS, but only the strength of power ia creating new ORDERS. See on this, note, Ch. XXX. p. 83. ]j Atlt (KofitQiot) lAv^vtxfxivoi <*nv tv ry AHMOK.PATJA, kxi irfos AYNA2TAE xiroGteittiyjtixQoTtf, contra: to Athenians says Pint in vit, Timol. p. 108, For Thebans, see last quotation. 110 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. Govern- ments of TWO OR. DEUS. Rome — Consuls. Senate. People. Consuls re- spected Se- nate and People. TWO or THREE forms in outward and external appearance, but actually of TWO in reality. The first of these was Rome. Rome as we all know consisted -of Consuls, Senate, and People— The Consuls " convoked the Senate, and n People, and while in Rome, had all the Magistracies subject to " them, except the Tribunes — They introduced ambassadors into the " Senate, proposed decrees to them, and to the People, and laid before " the former, the most pressing affairs — They received from the Quaes- " tors what money they wanted, and had supreme authority in the " Camp — They levied troops, and had power of life, and death over " the soldiers — They executed also the decrees of the Senate/' The Senate again were " masters of the Treasury, except in as " far as regarded the demands of the Consuls — They appointed Com- tl missioners from their number, to try great offences, such as trea- " sons, conspiracies, poisonings, and assassinations — They made trea- " ties with cities, called them to account for their conduct, succour- " ed, guarded, and garrisoned them — Had laws proposed in their sit- " tings — Sent embassies to nations, exhorting to alliance, or im- " posing commands on them — Received ambassadors, and answered " them — Declared peace, and war." The People " were the distributors of reward and punishment, " especially in the great offices of the state — .Judged in matters of " life, and death— -Conferred Magistracies — Sanctioned laws— De- *' termined peace, and war — Confirmed treaties, and alliances." Therefore says Polybius,the Government consisted of THREE R- DERS* — Therefore we must beg leave to say, with all deference to so great an author, it did no such thing, at least substantially, and really — The Consuls, says he,respec ted the Senate,on acountofthe supplies for * Sec p. 225. Ot< apum nohwx v tx, nANTflN TfiN EIAflN awwTW*, ruci oryinruv Pw^awv tert VUiiVTK. ■ THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE, Ji their army, which the latter could either give or refuse, so as to promote, or disappoint their enterprizes — They stood in awe of them too, on ac- count oftheir triumphs, which the Senate could either withhold, or grant. The same Consuls regarded the People, because they alone could confirm the treaties which they made, and because they were obliged to account to them on laying down their power— The Senate re- Senate again respected the People, because they could not bring ^ c c0 " any of the trials for great offences to a conclusion without their assistance — Because all laws tending to diminish the authority, esti- mation, or dignity of the Senate, were in their power — Lastly, be- cause the Tribunes, who were obliged to follow the inclinations of the People, could by their opposition, if it was even but of one of them, stop any of the Senate's laws — The People again were ob« People re- liged to respect the Senate, on account of the numerous contracts J,ateand °" for public works, in which they were all engaged, either as prin- Consuls > cipals, partners, securities, or money-lenders, on which Judges were appointed by, and from the Senate, who in unfortunate cases, might either enforce performance, or spare — They were also obliged to fear the Consuls, under whose absolute authority they were forced to be, while in Camp.* But surely, this system may be said to fall to the ground, when we come to examine it a little further — For what was the power of the Consuls ? They introduced ambassadors to the Senate— Con- voked it, we'll say — Proposed decrees to them and to the People — Laid the most urgent affairs before the former — All this was but an empty power— It was neither LEGISLATIVE, JUDICIAL, nor * It is remarkable that among all these respects, it is not mentioned that the Senate respected the Consuls — The Consuls feared the Senate and the People— The People, the Senate, ancHhc Consuls, but the Senate feared only the People — What was the reason that they did not fea.v the Consuls ? They swallowed up the Consuls as we shall soon see» U2 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. EXECUTIVE, or hardly so (for they did execute the decrees of the Senate)— The chief real power they had, was demanding money from the Quaestors, (and even this if they had done it to an immoderate degree, they would have been obliged to account for) with the command of the Magistracies while at Rome (all except the Tribunes too) which were chiefly matters of police— The real LEGISLATIVE, JUDI- CIAL, and EXECUTIVE were in the Senate and People, for as to the command of the armies, that or any tjiing relating to it, was only acting as Generalissimos, and discharging their functions to the State-And that the real LEGISLATIVE, JUDICIAL, and EXE- CUTIVE were in the Senate, and People, we may easily see by the following state, in which we shall take the THREE POWERS, as mentioned by Polybius himself, and carry them down just as he has stated them. k THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE* 113 NOBILITY. SENATE LEGIS- Laws proposed, alliances, and treaties contracted, embassies sent, and answered, succours decreed, censures on nations im- posed, peace, and war declared by. JUDI- Treasons, conspiracies, poisonings, as- sassinations, delinquency in great offices, taken cognizance of by. EXE- CONSULS. Laws executed, levies made, succours carried out, war conducted by. PEOPLE. PEOPLE. LATIVE. Laws sanctioned, alliances and treaties ratified, peace and war determined, re- wards aud punishments decreed by. CIAL. Finally pronounced on, and sentence of life and death passed by. CUTIVE. Consulship, and other commands and offices conferred by.* From this we may see that the THREE POWERS were substantially divided between Senate, and Peoplef,and consequently betweenNobility and People,J as clearly as the division can make them, laid down by * Q';i facit per alium, facit per se, therefore though the magistrates elected to these offices did apparently the Executive duty, yet those who chose them had the power. + The Consuls had nothing — Count the reciprocal holds, that the whole three bodies had upon one another — The People had five, the Senate three, and the Consuls only one — The People held Approbation of treaties, and Judgment over the heads of the Consuls, Conclusion of trials, laws for diminishing the Senate's authority, and all laws, o-ver the Senate — The Senate held the Granting of supplies, and Triumphs over the Consuls, and Judgments in Contracts over the People — The Consuls held only Power over the People while in Camp, which was neither LEGISLATIVE, JUDICIAL nor EXECUTIVE, as it were, it was only the power of a Generalissimo in an army. J We are well aware, that one of the Consuls was a Plebeian, but he was carried away by the spirit of power, wjiich he had not distinct, but reflected from the Senate — Een if he had not been so carried away, he could not have been detached from the Senate — They were both therefore to be considered as ONE ORDER — Or granting that they had split, would not the one have joined the Plebeians, and the other the Patricians, so that still it is the TWO ORDERS, and a proof thar, split them as you will, the spirit stiH remains, u Invents semper disjecti membra Poetat." 114 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. Poly bins* — Now look to the consequences— Were not these ORDERS engaged in constant contention ? Do we hear of any thing else in the is is . " whole Roman history, than the battles between the Patricians and Plebeians? They were constantly employed in opposing one another, with the most implacable, and virulent hostility, and never agreed but in one thing, which was oppressing all mankind. Now does this prove our premises, or not ? Does this shew, that TWO ORDERS must always look upon one another with animosity ,and keep a State in hot water, and contention ? Will any one say, that this was not hostility, or maintain, that the Roman State consisted of more than TWO ORDERS? If ORDER mean any thing, it means a separate interest — A separate set of connexions — How then, could the Consuls be reckoned such, when they were so intimately linked with the Senate, when they had no distinct authority, nor standing, nor what is more than all the rest put together, divided interest from the Senatef — What was the power of demanding money from the Quaestors (liable too to controul) of superintending the police, with that of presiding in, and convoking the assemblies of the People, and Senate, and introducing ambassadors into the latter ? A mere nothing, a mere cypher, compared with the LEGISLATIVE JU- DICIAL, and EXECUTIVE powers. Polybius therefore, with all deference, may surely be said to be wrong, * If we want moro proof on the subject, we may refer to their standards, S. P. Q. R., SE- NATUS, POPULUS QUIR1TES ROMANUS— What did that say ? + It is to be observed once for all, that the idea of ORDER, is a compound one, consisting of authority^ standing and connexion^ making a different Interest, see p. 86. — Men in power how- ever draw to men in power — That was the very thing with the Consuls — But this does not shew that men leave their X)RDER, but only that power creates new ORDERS — To shew it in one point of view — If some of the People were taken into power along with Nobility, they would in a certain time become of the interest of the Nobility, as was shewn by the Ba>.r> (Senate) at Athens, and Ephori at Sparta, who, though chosen from the People, left the People, but this, as remarked on before, not leaving their ORDERS, but changing their ORDERS. If any one doubt still that the Consuls were Patricians why did Coriolanus say, that " beiug a PATRICIAN, he ought only to be judged by the Consuls ? A THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. 115 when he calls the Government of Rome,of THREE ORDERS,andsays, that no one looking at it,could tell, whether it was most Monarchical, Aris- tocratical, or Democratical* — They could tell at least, that it was not of the whole THREE ORDERS, not of the whole THREE sub- stantially, and really, but Two Orders and TWO ORDERS, only.f Such was the State of Rome, and such the exemplification of the contests between Nobility and People — Other examples there may be, but this we will venture to say, was the most prominent, and principal — Others there may be, which present these conflicts according as the circumstances of the times, or the still more varying shades of Government, have given them an opportunity of appearing — But this is that, which exhibits them in the most constant and steady manner, during a period of almost seven hundred years, without in- terruption, or variation. The next exemplification is King and Nobility — This, if new in KING and the appearances it presents, is equally novel in the cause that pro- ty. duced them — That cause was the Feodal system — The Roman Em- pire, that empire of which we have been just speaking, had extended over the civilized part of the world, and swallowed up all other Governments — It was now crumbling to pieces, but still in these pieces, might be discerned the master features of Despotism — A new or- der of things, was now destined to arise, an order, which should sweep away these Governments from the globe, and place in their *»> i * Clan i&Sivx nor' a» vmi» dwxvQxt G&xt&js, (**& ruv tywftuv, ir»rc} APISTOKPATlKON t« voXtrtvpx cifarav. n AHMOKPATlKON, u MONAPXIKON, Pol. vol. i. + We need not quote Cicero again here, see p. 86, nor Tacitus again here, sea ibid, nor re- fer to their standards for Government, but just conclude the whole, with observing, that the Two PARTIES were called OPT1 MATES and POPULARES. Further, let uot the incautious reader think, that any little errors such as these, are a d traction from the memory of this great author — No — It was a greater merit, greater far, greater, how incalculably, in the state the world then was, •to do what he did, than it can now b<«, to detect any little mistakes in him — And any objections raised against him on this ground, are best answered in bis own words, which imply that you are to judge an Author, not by what he has Jailed in, but what he has done, an observation in which, there is not more candour than Justice ! Ow «t r«y ir»^K,Ktm*iAUM. 116 THREE POWERS IN TWO ORDERS DEFECTIVE IN BALANCE. room those of another nature and species— Immense swarms of Bar- barians, issuing from the North, unable either to content, or subsist themselves in the barren regions they inhabited, poured upon Eu- rope, and overwhelmed it — Overturning every Government, where they came, they substituted in its room, such as bore the mascul ne features of its authors — These authors were i)ee, that is, independent of their leader, or chief tain — They followed him, as voluntary com- panions, not served as mercenary soldiers—They divided with hi n the countries they conquered, and held them from him by- no other tenure, than military service — That is, they were obliged to follow him to the field, and appear in arms at his signal, to defend their common territories — Possessions acquired m this way, were like- ly to be independent — To interfere with them on the part of the So- vereign, would have been meddling beyond his right, because that right w r as only military service — They became therefore separate Jurisdictions — The Proprietor had a right to coin money in them, to administer Justice, civil, and criminal, and to carry on war against his private enemies in his own name — These Proprietors then were so many Sovereigns— The Lord paramount, or King, had the general Sovereignty of the whole, but they the particular, with the LEGIS- LATIVE, JUDICIAL, and EXECUTIVE Powers.* It could not be expected, that a system so formed, would remain Jong tranquil, and pacific— For the purposes of war,(and here it resem- bled the Roman) it was perfect,but for all others variable, and hostile — It was natural, that the Prince should be jealous of the Nobles, and the Nobles jealous of him — That he should consider them as danger- ous Rivals, and they him, as a troublesome Lord — It was natural too, that these jealousies should break out, and in many cases, bring them to open violence — Accord ingty, we find in these periods, the King, and the Nobles engaged in constant contentions. The power of the 1 * Germany afforded an exact picture of this till 1805.1806. THREE POWERS IN TWO ORDERS DEFECTIVE I\ r BALANCE. K7 latter so great, that in many rases, the Sovereign was unable to sub- due it — Witness the contest between James II. of Scotland, and the Earl of Douglas, when the latter for a considerable time, defied his efforts — This was the state of Europe at the period we talk of — " the Monarchical and Aristocrat ical parts of the Constitution (to use the words of Kobertson) having NO INTERMEDIATE POWER 6 ' to balance them, were perpetually at variance, and jostling with each " other."* Such then being the state of Europe, and such the consequences produced by it we are at no lo>.s v to judge of the combination be- tween Kuilt, andN Ojbilitv - It aft* rds complete exemplification — On the one side, attack and aggression, on the other, repulsion, and re- sistance — No order, n> balance, no solidity, safety, or interior re- gulation — All vehement, and implacable hostility, equally virulent, equally inflexible, equally unappeasable with any of the others, only exemplified m a different mam. or. The third and last combination is King, and People. Of this, we have KING and fewer instances, than of' either of the form-r, but still sufficient to es- Pt:0i>Lfc: ' tabhsh our premises — In antient times, different nations have found themselves in this situation, in proportion as the vicissitudes of their Governments, inclined them to it — Of any so constituted originally, and directly, we have few examples — AVe are told by Plutarch that Mcs- sene, and Argos, were founded in this way, and we learn the con* sequences resulting from it*— Through the haughty arrogance of their King , and the turbulent contumacy of the People, they were thrown into constant convulsions. We learn aho, that Sparta was so con- * See Robertson's History of Ch. V. vol. i. p. 17. * O xxi i^xXirrrtx r-nt AvKbpyts «-o£/av. xott Trooyoicx* CTroincri tpxv&pav, tis rots tAtcmmtn xxi Apytiuv, avyyivxv xx, »E.tarxTmv toc^id *°"X. E y - M "*T«ffT«ff;» — An rxv oxru xx' £ix.oor to the tragic fates of Louis XVI. of France, and Charles I. of England, simply remarking that these most clearly point out, that the single hope we have to be delivered from such convulsions, is to be found in THREE ORDERS and THREE ORDERS only. T timon ^ ie third an d last proof upon the subject, is the testimony of Au- of Authors thors, and Legislators — Have not Cicero, Tacitus, Poly bi us, Plutarch lators. and Aristotle praised THREE ORDERS,* and did notLycurgus and * CICERO. Sta(uo ease optimc constitutam. Rempublicam, quae ex tribus generibus illis, REGAL1, OP- TIMO, et POPULARI, sit modice confusa. Fragm.de repub!. lib. ii. TACITUS. Nam cundas nationcs, et urbes, POPULUS, aut PRIMQRES, aut SINGULI rogunt— De- lecta ex his, et constituta rcipuMica; forma, laudari facilius quam cvenire, vel si eveuit, haud diuturnacsse potest. Ann. lib. iv. 33. POLYB1US. "ZvpSaiW $t), TilS STXt/flTSj TWV Cx\0(AtVUV Q*ioW**?UXWS VUIV VTrfolXVlW TTtf) TCiiV TWSTiWV, tfia ytV* ?i>£

iv wptov rut Kahnonan miry KaQoXx 3e, t«v tuv oXuv af/xovw u%t Trapanhwixv rn¥o/iaiav km AaH^MfiQvwv* * It is to be observed here, that we take the Constitutions all through, as originally framed by the Legislators, to prove the attempts at the Balance, by three Bodies — The additions, as Ttpvrtx. at Carthage, Ephori at Sparta,and B THREE POWERS VESTED IX THREE ORDERS FOR A BALANCE, merit of them*— That they did not succeed, is also plea,r, from their not having been able to obtain a Balance — Bui- while the conse- quences that flowed from these attempts, shew their inefficiency, and the fallacy of the praises bestowed upon them, they equally demon- strate, the expediency of the thing desired — They (the Antients) might have seen the necessity of THREE ORDERS, or.of a Threefold Ba- lance, and not have had skill to accomplish it. ™igiuTa™ ^ n( l tms was exactly what they did— They knew that a Threefold known ad. Opposition was necessary, but they did not know how to effect it — Tantagcs of a rt J ' J Balance, but LYCURGUS Constituted Sparta of Three Bodies Kings Senate People SOLOxN Constituted Athens of Three Bodies Archons Senates People not how to get it Constituted Thebes of Three Bodies. Constituted C rinth of Three Bodies. The plan found amoi g the memoirs of SERVUS TULLIUS Constituted Rome of Thiee Bodies Consuls Senate People. Upon all these Constitutions see the various passages quoted in Ch. XXXIII. *A^ovyap us aptarmiuvvwrmvonreiav, t*» ex II ANTON TON riPOEIPHMENX2N IAI^MA- TX1N o-wtaToo-av, ram yap t» pepus, « W? povcv, aW' £f7«, ntipav abitpapiv, Avxapya cmtwkvtos KfUT* kxxv. rvTQv tck rpomv f to Aawfopiovivv TTo^txtvpw Pol v b.Vol, hi. }>. 4. Vindob. Edit. THREE POWERS VESTED ES THREE ORDERS FOR A BALANCE. And it is just in tins way, that we adduce their testimony — They were convinced that an Opposition of Three, would infer the conse- quences we mention — That it would check, strengthen, and mitigate — That Three could never be in diametrical opposition to each other -^ All this they knew, and we know that they did, from the objects proposed, and the praises bestowed on them* — That they failed in their attempts, that they did not know what an ORDER was, or thought that something else would produce a Balance,whether the mis- carriage, happened, from the backward state of society, or from what other cause, it imports as little to know — Their failure in the at- tempt is of no consequence, while the having made it, and made so often, shews the importance of the object. Here then is a triple proof, of Speculation, of Experience, and Au- Triple proof, thority — Whether we go to the sources of reason, or contemplate the consequences of fact, or consider the testimony, of Legislators, and Authors, they are all equally in our favour — Can we desire more ou the subject ? Can we wish for more ample satisfaction, and evidence ? THREE ORDERS are then the good—Three Orders are what we thrke ought to wish, deserve, and desiderate — Which keeps a Government ^ RDLL J S & l the g06d. in check, in perpetual succour, and mitigation — Which insures the strong of being opposed, the weak of being supported, the State of being consolidated, and consistent — Which without giving way to any excess, or any extravagance in checking that excess, keeps all in harmony, and peace, in cordiality, consistence and comfort — That gives freedom without licentiousness, and union without closeness — ^. In short, that without incurring any bad consequence of Govern- Uuir«;ga!t ment, gives every good one, uniting all in harmony, freedom, $md ^ p * o?Gt>- peace, security, liberty, and happiness ! iWnmfcUf. * See passage of Plutarch Awfu^n, See. p. 103, and Aurvi iy*.vu kx* stM.o<$. 128 FOR EQUAL POWER THE ORDERS MUST BE PERMANENT. CHAP. XXXV. THAT THE THREE POWERS MUST BE VESTED IN THREE ORDERS SO AS TO- MAKE A BALANCE. Three pow. NOR when the Three powers are vested in THREE ORDERS,, is vested in the whole business done — They must be so vested, as to make a orders Balance — And here come in our old principles,, that a Balance depends so as to upon a Division of Power, and a Division of Power upon Power, make a Ba- l x lance. and Persons* — That the Powers should be given equally; that is cor- respondingly, and the Persons who are to receive them, made cor- relative, and parallel f — But how to obtain this correspondence, or equality of Power, and this parallelcy, (if we may be allowed the expression) of Persons, or ORDERS, is the question— First then, of the equality of Power. CHAP. XXXVI. THAT TO GIVE POWER EQUALLY,- THE ORDERS WHO ARE TO RECEIVE IT,. MUST BE MADE PERMANENT. To give THE first step in giving the powers equally, is to make the iy, OR- ORDERS who are to receive them, permanent — For if they have receive it, not a fixed situation, an established, and permanent existence in the ma j| c P er - Constitution of a State, all equality of power is at an end— They have in fact no power at all, for they are liable to be extinguished at • See Ch. XVII. XVI II. and XIX. for all (his. i See Ch. XX VIII. and XXIX. for this.. POWERS TO BE EQUAL, MUST NOT OVERWHELM EACH OTHER. 129 every moment — The first step then, in giving equality of powers, is to give the ORDERS who are to receive them, a permanent existence in the constitution. CHAP. XXXVII. THAT TO MARE THE ORDERS WHO ARE TO RECEIVE POWER, EQUAL, THEY MUST BE MADE, SO AS NOT TO OVERWHELM EACH OTHER. BUT after all that can be done in distributing the powers, to To make ORDFRS render the ORDERS equal, they may be so constituted naturally, as W h rece i V e to have a superiority, one over the other, in that way — Whatever P°** r ^J'^ 1 ' pains therefore we may take to secure them an equality by the divi- not to over- . , • i /-1 • whelm each sion or powers, either as to carrying on the Government, or maintain- other, ing a permanent existence in it, there may be something in them, that will defy our efforts — For there are in every ORDER, two constitu- j n CT tions, a natural, and artificial. — The natural, is that, which they 0RD ER J two const?- have independent of Government, or the powers given by Govern- tutions, a ment, the artificial, that, which they have dependent on these things* — artificial* 11 And it is evident, that the former of these,must be by far the stronger — What comparison can there be, between a natural, and artificial force ? What parallel between the natural, strength, or weakness of a KING, NOBILITY, or PEOPLE, and any thing we can do, to over- come them ? Between the weakness of a sole ORDER, the weight of the RICH, the multitude of the POOR, and any thing we can do to extinguish it ? We must then begin, by modelling the ORDERS in the first place — We must regulate them so, as to render fit forre- * See 00 this Chap. XXX. S 130 THE ORDER OF KING MUST BE STRENGTHENED. Natural ceiving powers, malleable, if we may so express it, for the purposes deiied and of society — Nor is there any contradiction in this — There is a great regulate . difference between regulating, and overcoming — A wide distinction between conducting, and extinguishing — He who would regulate, only leads, and modifies, the course of a river — He who would extin- guish, stops it altogether. ed. CHAP. XXXVIII. THAT THE ORDER OF KING MUST BE STRENGTHENED. ORDER of WE now come to the natural constitution of the ORDERS, and strengthen- to consider them abstracted from the powers assigned to them. And this we are to do, in order to appreciate their force, and to see how far that force must be increased, or diminished. — Taking them then, in this way, we find the ORDER of KING, to be weak, and feeble in itself— For what is KING, considered as an ORDER ? A sole,and single person — A sole and single person,whatever powers he may have assigned him, against collective, and aggregate forces — That is,0RDERS composed of collective and aggregate forces, whatever their numbers be, prepared to overpower, and overwhelm him — To overpower and overwhelm him, naturally and constitution- ally, for naturally, and constitutionally, surely, whatever artificial pow- ers may be imparted, NOBILITY, and PEOPLE, are incalculably, infinitely, nay innominally, if we may so express it, superior to him. The ORDER of KING then, naturally speaking, must be infinite- ly reinforced, and strengthened* THE ORDER OF PEOPLE MUST BE REDUCED FURTHER, 131 CHAP. XXXIX. THAT THE ORDER OF NOBILITY MUST be reduced. AND if the ORDER of KING must be reinforced, and strength- order ened, so must that of NOBILITY, be reduced— For what is NOBI- ? f ,?5 BI " Ll 1 i re- LIT Y, considered as an ORDER ? A body of men, great in rank, great duced. in wealth, and great in the weight, and influence, following that rank, and wealth — And if it be this body of men, great in rank, wealth, and influence, how considerable must be its advantages over the other ORDERS ? Over the KING,by it's numbers, and over the PEOPLE, by it's weight, and influence — Why then, it must be reduced, and im- paired proportionally, if we do not wish it to be an overweening a needlessly overweening, nay,pernicious body, in the State. — Do we not see to what a pitch it attains in those Countries, where it is not so im- paired, and diminished ? It becomes an imperium in imperio, a na- tion within a nation, a gens in gente — Did we not see this in France ?* — Have we not seen it in other countries ? Intermarrying, connecting, and accumulating within itself, till it overpowers, or is overpowered by, the nation ? It must then be diminished. CHAP. XL. THAT THE ORDER OF PEOPLE, MUST BE REDUCED FURTHER. AND if the ORDER of NOBILITY must be reduced, and di- order of minished in its strength, so must that of the PEOPLE, be still fur- PJ J 0P *f v reduced fur- ther. * Which produced the revolution in 1789, which whatever it was in the beginning, brought eventually such dreadful mischiefs on mankind. S3 152 THE ORDER OF PEOPLE MUST BE REDUCED FURTHER. ther— For what is the PEOPLE ? An irresistible multitude,(still talking of as an ORDER) impracticable in it's passions, impracticable in its violence, impracticable in its numbers— Certainly inferior to KING, and NOBILITY, in the common course, and routine of affairs, but as certainly, and infinitely superior to them, in agitations, and com- motions*— It is then, that it becomes truly formidable, then, that it becomes impracticable, and irresistible — And it is ever on the eve of being pushed on to these commotions, by the influence, and agita- tions of its Demagogues-)- — Witness these revolutions, and 0w to wto, &c. J See Herodotus, and Thucjdides — ixviwrw rr> crrxcru . THE ORDER OF KING MUST BE STRENGTHENED BY INHERITANCE. 13S CHAP. XLI. THAT THE ORDER OF KING, MUST BE STRENGTHENED BY INHERITANCE. AND if the ORDER of KING must be strengthened,and reinforc- ORDER of ed, the question is, how to reinforce it — And here, in order to obtain a strengthened just notion of this, the way will be to enquire, whence proceeds it's b ? lnheri - feebleness — It is from it's singleness, from it's solitude, its w«, or des- titution, as the Greeks would call it, which exposes it to the other ORDERS, and renders it liable to be overpowered by them — The way then to strengthen it, will be, to correct this tp*m» this solitude, as much as possible, and give it all the aggregateness and body in a State, practicable — And how again is this to be done ? First, by fix- ing it in a particular family, or race, that it may be the generation, or Offspring, that is considered, not the individual, and that in that way, it may support some kind of footing, withthe other OR- DERS— The next thing is, to render it Inheritable, in that race, that when the KING, or person, who actually bears the Supreme power, gives way to nature, there may be no interruption, or gap, so as to allow of any other (person stepping) in, but the sovereign authority proceed in undeviating, and unceasing suc- cession— The third thing is, to fortify it with powers of such a nature, as by their activity, and solidity, shall make amends for the singleness of the ORDER, andcompensate as far as possible its natural disad- vantages in that way — But of this,of course,aftenvards — All these thino-s have their effect, and are necessary to strengthen, and reinforce the ORDER, — And if any doubt it, they have only to look to those Countries, where Crowns have been put upon another footing Where 134 THE ORDER OF KING MUST BE STRENGTHENED BY INHERITANCE. they have not been confined to particular families, and where there have been constant disputes between these, concerning the succession, to the great weakening of the royal dignity* — Or where they have been elective, and have produced constant contentions and intrigues mutilating greatly thereby, the royal authority, besides exposing the kingdom to foreign invasion, as has been lately the case in Polandt — Or where the powers given to it, have not been sufficient to protect and cover it's natural weakness, and where it has finished, by first pulling down itself, and then along with it, the Government of the Country, as has been the case in that very Poland, and Rego-republican France, for want of adequate authority .J So that all these things are requisite for strengthening the ORDER of KING to a proper pitch, and rendering it, what it ought to be, the safeguard, and protection of the nation — It is the fixing it in a particular family, that dignifies it, it is the filiating it, if we may so call it, in that family, that secures it, and it is the conferring certain powers upon it, that gives it a so- lidity, a fixed consistence, and settled authority in the Constitution — So that it acquires at last, a patriarchal and majestic appearance in the eyes of the nation, which though undoubtedly mischievous, and absurd, when carried to an improper pitch§, is an excellent principle to strengthen and confirm a good Government — As to the idea of a double Crown, or vested in Two, that is rather to be no- * Though in England, the succession was certainly not extended to several families, yet the wars of York, and Lancaster, shew the consequences of several families, and where there were two dif- ferent families as at Sparta, the Ileraclitlae (and may have been at other places,) there were con- stant misunderstandings between them. + In the year 1778, see first division of Poland. J See Louis XVI. of France left with (he Convention, and a solitary Veto upon their laws. § Sec the idea of the old jus divinum, or divine Right. ORDER OF NOBILITY MUST BE REDUCED BY PRIMOGENITURE. 135 ticed as a contradiction of the thing than as originating in any sound, or rational principle* — We have seen it at Rome,f we have seen it at Sparta;}., and may have in other countries, but instead of strengthening, where it took place, it has always had the effect of distracting, and weakening the Government— The ORDER of KING then, must be considered as confined to ONE, and being confined to ONE, this appears the only way to reinforce and strengthen it. CHAP. XLII. THAT THE ORDER OF NOBILITY MUST be reduced Br PRIMOGENITURE. AND if the ORDER of KING must be strengthened by Inheri- ORDER of tance, so must that of NO BIL1TY, be reduced by Primogeniture — TY reduced For what is NOBILITY taken as an ORDER ? Is it not a race of £J£T men, strong in rank, strong in wealth, and strong in the weight, and influence following that rank, and wealth, according to their spirit,which is pride (still speaking of as an ORDER) looking down on, and despising other men ? And if they do this, must not they constantly intermarry with one another, connect themselves with one another, and if not impaired, as we said above, continually ac- cumulate within themselves, till they become at last, as here stated, an imperium in imperio, a nation within a nation, a gens in gente? This was best seen in France, where they did so accu- mulate within themselves, till they divided, and distracted them * Certainly a contradiction of the idea BA2IAET2, or MONAPXOS, a Sole as to the person, or GoTernor. 4. See Romulus, and Tatius. % Two races of the Hcraclid*. 136 ORDER OF NOBILITY MUST BE REDUCED BY PRIMOGENITURE. from the nation, to such a degree, that they pulled down themselves, and their Sovereign along with them*— And the spirit that leads them to this, has been seen in all Countries,where they appear in any measuret — In all, they draw to one another, in all associate ex- clusively (except where impaired, as said above) like a Cast, regard- ing others (always talking of as an ORDER) with hostility, and alie- nation—Considering the Sovereign in some Countries, as an obstacle to their power, in others, as the support of it, but in all (till circum- scribed) the PEOPLE as an odious, and detested rival, ihe more hated, because the more despised — Was it not this that occasioned the confusions at Rome, this, the distraction of the Grecian Cities ?t What then is the cure for it ? What so natural, as to make them part of the PEOPLE themselves ? This of course, will take away the di- vision and seclusion, this, the insulation, and separation which is the foundation of all the mischief— And how is this to be done? By Primogeniture, that is, fixing the succession to NOBILI- TY with the eldest son, and making the rest of the family, Popular, or of the PEOPLE— This will at once prevent the NOBILITY, from becoming too numerous, temper that part of the family, who are NOBILITY, harmonize the rest, and eventually the whole, by in- corporating, and associating with the PEOPLE — This will blunt the prejudices of the ORDER, and assimilate and incorporate them with the' fc body of the nation — They will then no longer look upon the MONARCH as an obstacle to their views (having not ambition, that is, power enough, the foundation of that ambition, to consider him as * This was precisely what occasioned the French Revolution — The disregard of the PEOPLE grew so strong, and the oppression so great, that the latter thought the NOBILITY Tyrants, whom to extirpate, was liberty, and they accordingly seized on power to their own destruction. + In Turkey, they hardly appear at all, the Graud Signor's authority so totally smooths down and levels every thing. * J Irakis. ORDER OF PEOPLE MUST BE REDUCED BY REPRESENTATION. 137 a rival,* but rather look up to, for protection, and support — They will no longer consider the PEOPLE, as their enemies, having not distinction enough, or alienation from, to regard as different, but rather, part of their families being incorporated with them, and therefore effectually the whole, the same— Tins then is the way to elevate and refine the PEOPLE, and mitigate, and subdue, the NOBILITY — As Inheritance, was the mode to reinforce the OR- DER of KING, so is Primogeniture, to mitigate and reduce that of NOBILITY. CHAP. XLIII. THAT THE ORDER OF PEOPLE MUST BE REDUCED BY REPRESENTATION. BUT the PEOPLE are the ORDER which requires reduction most order, of of all— It is that, which is most impracticable from its numbers, most p ^ op f J ? v ' reduced by formidable from its fury, and most dreadhd from its violence — From Represents* thatinsurrective, if we may use the expression, disposition, which dis- tinguishes it, and from its overpowering, and overwhelming nafure,when once rou^ed,and excited — And it is ever upon the eve of being so roused, and excited,from the turbulence and ambition of its Demagogues — Infi- nitely inferior,as we observed,toeitherKING,orNOBILiT Yin common moments, from its never being seen, or heard of, it is as certainly and in- finitely superior to them, in agitations* and commotions— It is then indeed, that it is truly formidable, then, that it becomes impracticable, and irresistible — Then it is in vain to oppose it, and it is this evil, and this evil alone, that renders it so intolerable in Government — blow * Sue the History of Scotland. T 158 ORDER OF PEOPLE MUST BE REDUCED BY REPRESENTATION. then, is it to be avoided ? How are we to get rid of it ? — By seeking to its root,by searching to its foundation — And what is this foundation ? The numbers of the PEOPLE — It is these numbers, that worked upon, goaded, and agitated by the Demagogues, rise to irresistible fury — Witness the antient d don without Government, without submitting us to any of the evils of a close CORfusion ' one— This then, Representation, is the best way, to regulate, and orga- nize the PEOPLE — As Inheritance was the mode to reinforce the ORDER of KING, so are Primogeniture, and Representation, to mitigate, and subdue those of jNOBILITY, and PEOPLE. CHAP. XL1V. WHAT POWERS OUGHT TO BE EXERCISED BV EACH OF THE ORDERS. What P() V\ FRQ AS we have now got the ORDERS, reduced and fortified as we exer*£s«a wish, the question wiil be, what POWLKS ought to be exercised 1? rt'oiu T 2 DEilS. 1 :0 LEGISLATIVE, THE POWER OF MAKING THE LAW. by, that is are best suited to them, to obtain the balance desired— But it is impossible to determine this, till we know the nature of the POWERS— We shall therefore enquire into them. CHAP. XLV. THAT TO CONCEIVE A CLEAR IDEA OF THE POWERS WE MUST CONCEIVE THEM ABSTRACTED FROM THE BODIES THAT EXERCISE THEM. To conceive FOR if we do not, we shall be liable to misunderstand ourselves powers^ at ever y moment — We shall bethinking, that we are taking away so &c - much from this, or that power (that is the body conceived for it,) when the question is, what ought to be given to that body — There is then, but one way of conceiving the thing distinctly, and that is, that the LEGISLATIVE is the POWER of making the LAW, or DICTA- TION of the State,theJUDICIAL,the POWER of making the JUDG- MENT, or DISCERNMENT of it,and the EXECUTIVE, the POW- ER of making the EXECUTION, or ACCOMPLISHMENT of it. CHAP. XLVI. THAT THE LEGISLATIVE IS THE POWER OF MAKING THE LAW OR DICTATION OF THE STATE. • leotsla. LEGISLATIVE or legislativum, signifies as we know, making law, power fr° 111 ^ ie Latin words, lex and fero— Of course, LEGISLATIVE, of making , THE EXECUTIVE, ACCOMPLISHING THE ENDS OF THE STATE. Ul or the LEGISLATIVE POWER in the State, or that part of political law of power, which is called LEGISLATIVE, is the POWER of raak- State * ingthe LAW, or DICTATION of the State. CHAP. XLVII. THAT THE JUDICIAL IS THE POWER OF MAKING THE JUDGMENT, or DISCERNMENT of the state.. THIS also is clear. Judicialis comes from judicium, which sig- judicial nifies judgment — Judicialis then, is of, or pertaining to, judgment — makT!? 11 ° f Judicial then is the same thing, and taken as a POWER in the JU PJ?; State, must mean the power of making the JUDGMENT of the state. State. CHAP. XLVIII. that the EXECUTIVE is the POWER of making the EXECUTION, or ACCOMPLISHMENT of the state. FOR a similar reason — Executive is that which executes, or makes execu. execution— The power of executing then, or the EXECUTIVE PO W- £ ^ Ea ERinthe State, is the. power of making the EXECUTION, or of making ACCOMPLISHMENT of the State. Ron of State. V 14 2 LEGISLATIVE GOES THROUGH FOUR DEPARTMENTS. CHAP. XLIX. that the LEGISLATIVE goes through FOUR DEPARTMENTS or the state, INSTITUTES MEASURES, REVIEW of POWERS and ALTERATIONS of the CONSTITUTION. LEGISLA- THE meaning of Law, is a rule by which any thing is go- throu^h g , °&c verned— Thus it is, as Montesquieu observes, that we say the laws of nature, the laws of motion, the laws of the planets, meaning the Law gene. Jaws » b y which these things are regulated. rally. When we say the LAW of the State then, we must mean the p , T j, LAW, or dictation, by which the State, or the Community, or All are regulated — It must therefore be opposed to will, mere will, vary- ing will, and inclination, for as far as that will enters, there can be no Exclusion of regulating over him, who exercises the will, but he legulates others. •*«■ —In this sense we took it (see Ch. XII. XIII. XIV. XV. and XVIL, and it is a sense no less congenial to the real meaning of the word, than to the interests of sound Government and liberty. Course of In that last named (Chapter XVIL) we endeavoured to shew, that pioo. Legal Government," or an exclusion of will, depended upon a mixture " of wills, (see ditto) that is, an opposition or Balance of them*" — Alter that this Balance depended upon a Division of Power, and that again upon Power, and Persons being equal — That this equality was not to be found in' ONE ORDER, nor TWO ORDERS, but THREE ORDERS, and then only with care, and attention — By making the Orders permanent, and so as not to overwhelm each other — And having then endeavoured to arrange them, so as not to overwhelm, we are now, at the other branch of equality, viz. what powers are best suited to each of the ORDERS, and we are actually at that of Law- making— Such is the course we have pursued, such is the progress * Resembling the two sides of an equation, which extinguish one another. LEGISLATIVE GOES THROUGH FOUR DEPARTMENTS. 143 tve have made, and such is the sense, we have given the word Law, or Dictation, the substance of Legal Government. This then being the sense of Law, or Dictation, the question is, how IIow touch, it touches — What objects it affects, what points it regards, what articles it occupies, and how it affects them. Andfirstit may be said that theseobjects are Civil rights. Civil rights* Civil rights. as we saw in our third chapter of this Book, made the object, and whole object, of Government — They were the end, and only end, they were the sole authority, and pretext for it (See ditto Chap.)— If this be the case,Government cannot be supposed to stop short of, or to go beyond them — In the first case, they would be no cause, no adequate cause, they would not exhaust themselves, in the other,* they would go beyond their consequence— See Ch. III. of this Book — Govern- ment then must be determined by them, it cannot stop short of, nor go beyond them. Now Government is Law, and Law Government, in the scope, or subject, they refer to — For what does Government refer to ? It refers as above to Civil rights — And how does it refer to them ? It refers to them through Law, forall is Legal now, Arbitrary being thrown out of the question (See Ch.XVI.JAnd if it does refer to them through Law, Law must have the same scope that it has — It must go as far, and can't go beyond it — It must go as far, because Government can only refer to Civil rights, or any thing, through Law — It can't go beyond it, because Law is Government, and must carry Government along with it. Government then referring to Civil rights, must make Law refer Jut ! g ,T CBt ° and hxtcu- to them too — And here we are well aware, that Judgment, and Exe- tion cution, as described (in Ch. XX., see ditto) are separated from same subject Law— But then, that is taken as POWERS— They are always on as LAW * the Law, and therefore must embrace the same subject. nvrrnment. touches Ciril Law,or Dictation then,touching Civil rights as much as Government, ^ ow u Ia * 144 LEGISLATIVE GOES THROUGH FOUR DEPARTMENTS. B«giits ? or rather being itself Government, the question is, how it. touches them ? test. How it affects them ? To what extent ? The answer is, to their own ex- tent — They must find their own limit — To say,that it did not affect them to that extent as they are the scope of Government, would be to say, that it affected them, and did not affect them at the same time. In thii.r sifn- j\ U( \ first we must say that these rights appear in the most simple INSTi. shape, — They appear as the gift of GOD, to the individual direct, as Life, Property, and Free- agency, primitive, and which must not in any way be taken from him — See Book I. Ch. III. In this way, it is the business of Law, or Dictation, or Government, to take care that they are not taken from him, that they are not assailed in any respect, and that they are preserved in all respects — To pronounce them sacred, to punish the least infringement of them, to regulate in all cases, where it is called for — If Life be attacked, to punish such attack — If Property be invaded, to vindicate such invasion— If Tree-agency be injured, to give retribution for the injury, and finally, to ascertain the rights to Property, so that it may be known in things contested, who is the rightful owner — This is what the Law does in INSTITUTES, and this is the first mode in which it touches Civil rigiits. In their ag- But are there no other shapes in which they appear? Is there no grrgale by MEA- other way in which Civil rights manifest and discover themselves? There are certainly — There is a State,or Civil community, which is no otherthan an aggregate of the protection of these rights, a mass of power to preserve them— These rights embodied in a system — And is this State, this Civil Community, this mass of power, or this system, to be de- stroyed at once, or at the will of any one ? Is it to perish, or be put down at discretion ? Is it to be brought to nought at the wink, or nod of any other nation, or in any wav whatsoever ? It certainly is not — There ought therefore to be MEASURES taken to defend it— To LEGISLATIVE GOES THROUGH FOUR DEPARTMENTS. H5 protect it against foreign enemies, or if need be, against internal — Against the attempts of other States to annihilate it, or against do- mestic foes within its own feosom— All these are the objects of politi- cal, or national power, exercised in its endeavour to preserve itself, or rather Civil rights (See passage of Hume quoted '20th Chapter) which require a certain degree of bodily energy to execute them, and are therefore called MEASURES— It is the duty then, of LAW, DIC- TATION, or GOVERNMENT totake,or dictate theseMEASURES, either against foreign enemies or internal disturbers — As in the former case, to preserve Civil rights to the Individual direct, so now to pre- serve the system, that is to preserve them. But is there not yet another thing ? If the State be a Mass 6f lntheirag r _ _ ° gregate again power to protect Civil rights, must not there be wheels to carry on by RE- this power, must not there be PRINCIPLES, to set it in motion, or to powers. speak more properly, must not these very PRINCIPLES make up, and compose it? They must certainly, and these PRINCIPLES are the very LEGISLATIVE, JUDICIAL, and EXECUTIVE, which we mentioned in our 20th Chapter — (See ditto.) And if this LEGIS- LATIVE, JUDICIAL, and EXECUTIVE make up this power, may it not so happen, that they may forget their des- tination ? That they may neglect the functions assigned them, and be deficient in the duties imposed on them ? — In that case, there should be a revising force in the State to recal them to these duties — To see that they discharge what they were designed to discharge,and that they exhaust and satisfy their intention in Govern- ment—That force is this very LEGISLATIVE,, which by the na- ture of human things, must now be employed in REVIEWING itself, along with the JUDICIAL, and EXECUTIVE-As it was the business thc« of the LEGISLATIVE, to preserve Civil rights in. the first instance, to preserve the System that did preserve them u LEGISLATIVE GOES THROUGH FOUR DEPARTMENTS. STiTU TION. in the second, so is it now to revise the POWERS that compose this System, and recal them, if need be, to their duty. in their ag- £ u t there is still another thing — If Civil rights appear in their simple gregate again ° . * x by alter- shape as held to Individuals, in their aggregate in the System of power the con.° raised to preserve them, in their aggregate again, in the POWERS that conduct, or compose that System, so do they also in their ag- gregate still again, in the Machine or fabric itself, that founds the whole of the Structure — In the frame of Government erected for their pre- servation — In the Constitution, or form of Polity of the State — May it not so happen that this frame, or form of Polity, may have fallen into decay through time, or been ill formed at the beginning ? Must it always remain perfect, or is it the nature of human things so to do ? It is not — It is then equally of Civil rights, and the pre- servation of Civil rights, that it should be occasionally amended and renovated— It is then again the business of LAW or DICTA- TION or the LEGISLATIVE, or GOVERNMENT, as the Guardian of Civil rights, to make decrees for such amendment, and renovation, and take upon itself the correction of the System. These shapes These then are the different shapes iix which Civil rights appear, gisla. " anc * these are the whole of them — What can we conceive beyond the Ac- ? IV ? ,t ., tua l things themselves,the System raised for them, the Powers that con- touches Civil ° J ' - " rights. duct or compose that System, and the Constant correction of the whole Structure ? Nothing— These things then limit Civil rights — They must then limit LAW as their Guardian. JUDICIAL GOES THROUGH FOUR DEPARTMENTS, Uj CHAP. L. that the JUDICIAL goes through FOUR DEPARTMENTS of the state, INSTITUTES, MEASURES, REVIEW or POWERS,and AL- TERATIONS of the CONSTITUTION. JUDGMENT (which is the object of the JUDICIAL) means in judicial general, that power of the mind, that compares two propositions, and &°" roug ' tells their relation to one another—From that it is taken to the re- Jud s m f| nt generally. suit of exercising the power, or conclusion formed by comparing two propositions — In this last sense we now use it, to correspond with that of Law.*, And if it be the conclusion formed by comparing two propositions, Politically. . f l 7 s ' ' . . , O/two pro- the question is, what these two propositions are — And here it is evident positions— that one of these, must be the Law, or Dictation of the State — For if aw olle ' JUDGMENT be on the Law, what can it be but of the Law ? Law therefore must be the first proposition which JUDGMENT or the JUDICIAL Power has to compare. And if the Law, or Dictation of the State, be the first proposition Subject of which JUDGMENT, or the JUDICIAL POWER has to com- La,v other ' pare, the question is what is the other ? It must be the sub- ject of that Law. f Por JUDGMENT is of the Law, or com- • See last chapter on the LEGISLATIVE POWER. + The to vno+. 148 JUDICIAL GOES THROUGH FOUR DEPARTMENTS. pares the Law, what then can it compare it with, but its sub- ject, since Law consists but of two parts, the rule, and its subject, or rather one philosophically speaking, for that subject is only exem- plifying and realizing it. See Book II. Ch. II. and Book III. Ch. I. — And if Law consist but of these two parts, what has JUDGMENT, or the JUDICIAL to compare it with, but its subject ? Civil rights And if it be the business of JUDGMENT or the JUDICIAL, thus subject of ..... Law. to compare Law with its subject, the next question arises, what that subject is ? Civil rights — Civil rights were the subject of Law, Civil Rights were the subject of Government — They must then be the subject of JUDGMENT which is on the law. JUDGMENT must refer through law to them, it must tell the reference of Law to them — And how must it tell it? It must tell it as Law — For the same reason occurs again, as before — We must then recur to the different shapes in which Civil rights appeared, and through which they became the subjects of LAW, or the LEGISLATIVE. Touciies as These shapes were their simple, as held to Individuals, their aggre* LA.W. gate, in the System of power raised to preserve them, their aggregate again in the Powers that conducted, or composed that System, and in their aggregate still again, in the Machine, or fabric that founded the whole of the Structure — These were the Shapes, in which Law or the LEGISLATIVE touched Civil rights, they must then be the shapes in which JUDGMENT touches them, in their sim- And how again did LAW go through these shapes ? How did it touch by insti- tuem m tnese sna P es - ? It; touched them in their first, or simple TUTES. " s hape by INSTITUTES— It was, as we saw, in our last chap- ter, the business of LAW, to guard Life, Property, and Free-agency, in the first instance, and affix penalties to the invasion of them — If Life were attacked, to punish such attack, if Property were infringed, to pursue such infringement, if Free-agency were assailed, in like man- JUDICIAL GOES THROUGH FOUR DEPARTMENTS. 149 ner to meet the injury, and also, to tell the titles to Property, in cases, where it was disputed — If such was the business of LAW, we cannot much hesitate, to assign that of JUDGMENT, which is on the Law — If JUDGMENT be, to compare two propositions, and one of them, be the Law, or abstract rule of the State, and the other, the subject of it, that subject most undoubtedly must be, in Life, to see who assailed- it, ordaining the punishment of Law, so in Pro- perty, so in Free-agency, so also in Contestations concerning Pro- perty, correspondingly, telling how its titles apply — In all, ordaining penalties according to Law, in all, appointing possession in the same manner— This isthe business of JUDGMENT in INSTITUTES. This is the simple shape of Civil rights—The next, is their in their more complicated, or aggregate— That is the shape, as we said , J^me a= in which they appear as a Community, or Nation, with power to SURES - protect them — And it is to prevent this system, from falling to the ground, to save this fabric from coming to ruin, that it is necessary to take Measures to preserve it — To order the expedition of fleets, the march of armies, the taking of internal, or interior MEASURES, for its within prosperity and regulation — But how comes in JUDG- MENT, or the JUDICIAL here ? How comes in, the com- parison of two propositions, where there can be only one, a simple, and MANDATORY Order ? It cannot in the first instance, since such adoption by the Law, is a single ordinance, a mere sole prescription of the step to betaken — It must be afterwards on the not taking that step.to compare the conduct of the POWER, that should have taken it with the Order given, and make it render an account of itself— But this of course, must be done on a new Law, always proceeding on the old, else ex post facto — This then, of MEASURES, is the second mode, in which JUDGMENT touches Civil rights, and brings us to the very Review in question, 150 JUDICIAL GOES THROUGH FOUR DEPARTMENTS. in their ag. The next shape as we saw, in which Civil rights appeared, was Igafn by in the POWERS, that conducted, or composed, the System, raised foe of pow- V P reservm g them— It might happen, as we said, that they neglected their ERS. duty— LAW, or LEGISLATIVE then, Orders a REVIEW of there- upon this, they must be judged— With this Law, JUDGMENT, or the high JUDICIAL of the State, must compare their conduct, as having failed either in judging or executing the laws, whatever the functions, and ordain issue accordingly, only, as was observed, the new law must have the substance of the old in it. In their ag^ The next, and last shape, in which Civil rights appear, is in b y eg AL- San the Machine, or fabric, that founds the whole of the Structure, that is, ons trine * n tne Constitution, or form of Polity of the State . — It may happen, as we consti. sa i(] that it may have fallen into decay, or have been ill formed at XUTION. . . . the beginning, that it may require to be supplied, improved,or renovat- ed— In that case, it is the business of LAW, or the LEGISLA- TIVE, to ordain such supplement, improvement, or amendment — And then, if the POWER so ordered to supply it, that is, the EXE- CUTIVE, fail in performing, to order such REVIEW upon it, as it pleases, and upon this, JUDGMENT, or the JUDICIAL, to give issue accordingly. Th*se shapes This is the manner, in which JUDGMENT, or the JUDICIAL of judicial the State, goes through the various shapes of Civil rights, in their Ciiu"} hts.^^P^ as ne ^ to Individuals, in their aggregate, in the System of power raised to preserve them, in their aggregate again, in the Pow- ers that conduct, or compose that System, and in their aggregate still again, in the Machine, or fabric, that founds the whole of the Structure. In all, comparing two propositions, in all, the abstract rule of the State, with its subject, in all, telling its reference to that subject — And if JUDGMENT, or the JUDICIAL, go through these shapes, so did LAW, or the LEGISLATIVE before it— And if Civil rights EXECUTIVE GOES THROUGH FOUR DEPARTMENTS. 151 limited the extent of LAW, so must they, of JUDGMENT also— And if it was the appearance of Civil rights in these shapes, that determin- * ed that limit in LAW, so must it in JUDGMENT in like manner— And this is their appearance, in their simple shape, as held to Indivi- duals, in their aggregate, in the System of power raised to preserve them, in their aggregate again, in the Powers that conduct or com- pose that System, and in their aggregate still again, in the Machine, or fabric itself, that founds the whole of the Structure — These then are the extent, or limits of the JUDGMENT or JUDICIAL of the State. m l m i CHAP. LI. that the EXECUTIVE goes through FOUR DEPARTMENTS of the state, INSTITUTES, MEASURES, REVIEWof POWERS, and ALTERATIONS of the CONSTITUTION. EXECUTION in general, means the execution, accomplishment, EXECU •r perfection, that is perfecting of any thing, by which it is brought TIVB goes ; o its final conclusion, and termination— And in this, its general sense, Wutl'e*'* it answers very well to the meaning we gave LAW and JUDG- s cueral, J r - MENT— See last chapters- Let the EXECUTION of the State, then, be understood to be, the final end, accomplishment, and perfecting o ,• • „ /? «r T t\- . A ' n • t "^^""S Politically ot the Law, or Dictation of it, the last conclusion, by which, all end, concludes -nd termination is put to it. ' eTer / thiD §- And if this be the sense of the EXECUTION of the State, theques- 15$ EXECUTIVE GOES THROUGH FOUR DEPARTMENTS. tion is what it touches ? And here again the doubt returns to what it is ? What is theEXECUTION of the State, substantially, and really ? The Execution of the Law, or Dictation of it — That is its sense-^-And if this- beits sense, that it is the EXECUTION of the LAW or DICTATION of it,then it must undoubtedly touch whatever LAW or DICTATION does. Touches And if the EXECUTION of the State touch whatever LAW, or Civil rights. DICTATION does, the next question is, what that is? What does LAW, or DICTATION touch ? Civil rights— That has been suffi- ciently agitated, that has been sufficiently discussed in the last, and preceding chapters — Civil rights were the subject of Law, Civil subject of Government. hi Uv. EXECUTION then touching Civil rights, because LAW does, the question is, how it touches them? The same answer will be afforded here, as before, viz. as LAW. AND how is this ? W T hat were the shapes in which LAW or DICTA- TION touched Civil rights ? In their simple shape, as held to Indivi- duals, in their aggregate, in the System of power raised to preserve them, in their aggregate again, in the Powers that conducted, or composed, that System, and in their aggregate still again, in the Machine,, or fabric, that founded the whole of the Structure — These were the shapes, in which LA W,or DICTATION touched Civil rights— These then must be also the shapes, in which EXECUTION, or the EXECUTIVE touches them, in their And how does it go through these shapes ? How does it touch bTiNSTi P - e ' Civil rights in these shapes? As. LAW-LAW touched Civil TV T & S— rights in their simple shape as held to Individuals by INSTI- TUTES— So must EX ECUTION also— It was,we saw,the business of LAW, to provide ordinances for the preservation of Life, Property, and Free-agency, attaching penalties to their invasion — If Life- were assailed, appointing a punishment for that, so of Property, so EXECUTIVE GOES THROUGH FOUR DEPARTMENTS. %fy of Free-agency, adjusting too the titles to Property, in cases where it should be disputed— In all establishing their preservation, in all, or- daining their protection, or regulation. And if the business of LAW, or Dictation was, to appoint penal- lies for the invasion of Civil rights, and to adjust their Titles, and of JUDGMENT, to enquire into such invasion, and Titles, so is it of EXECUTION to execute them, or to execute as for them-**To execute the punishment ordained by LAW, to execute the possession also so ordained, when the Title is found to it — It cannot well be the execution of Law in any other way, for if LAW, appoint a punishment, or ordain possession in certain cases, what can the execution of the Law be, but to give it effect ? The Law can have but a body, and a spirit, if we may so use the expression, and if that spirit, or meaning, be the Rule, or Dictation, or first Order itself, and JUDGMENT the finding out or discovering how it applies, what is there left for EXECUTION", but giving it body, and substance, so as to make it actually take place in reality ? This then is the mode, in which EXECUTION, or the EX ECU- in their a*. TIVE Power touches Civil rights in their simple shape, as held to Indi- mea. vidualsby INSTITUTES, now as to their more complicated, or aggre- sUilES - gate— That shape,as wesaid,was the State, the shape in whichCivil rights were embodied into a Community, or Nation, with power to protect them — In what manner then does EXECUTION act here ? — Go to Law — What was the operation of LAW itself in this instance ? It was to rder MEASURES for the defence of that State (See Ch. XLIX. on LAW,p. 144) To provide forits within prosperity, or regulation — To take care, that it did not perish, or fall to decay, and weakness — The bu- siness of EXECUTION,- or the EXECUTIVE Power then must be, to give effect to these MEASURES, to take care that they do not fall to the ground, for want of co-operation and assistance — In a word, to execute them. But how, as we said came in x 154 EXECUTIVE GOES THROUGH FOUR DEPARTMENTS. JUDGMENT here? See last Chapter— -Afterwards on a new Law, if the Measures were not executed, to judge those; who should have done so, and have neglected for their conduct — So then, do we also say of the EXECUTION here, it comes in again, upon that new Law, to execute the decisions of JUDGMENT, but of this afterwards, in thoiiarr- r f| ie nex t shape is the POWERS — That was the next in which byiiRViEW LAW touched Civil rights (see Ch. XLIX. p. 145) How then E ft P ° W " does EXECUTION come in here? If the POWERS, whose bu- siness is to judge and execute, that is, the JUDICIAL, and EXE- CUTIVE, should have neglected their dirties, then there is afresh Law to revise their conduct, always containing the old, else ex post facto, and if Judgment pass against them on this, then EXECUTION comes in to perform it. That is the business of EXECUTION in this instance, in tw.r a g - The next, and last shape, is the CONSTITUTION, or Eorm of f re w te iMMi n Government— -Here, as we saw, it is the nature of human things to l>y Alii Kit- ° ations of 511^ m to decay, and the business of the LAW of the State, to the con. . . /' _ . „ . . _ . STITU. repair it, as far as relative thereto— I o amend any imperfections li0N ' that may have originally existed in the fabric, or supply such de- fects, as may have crept in, from the lapse of time — In this case, it is the office of the EXECUTION, to accomplish such ALTER- ATIONS, in the first instance, and then, if it have neglected them, to perform the Judgment of the State, for such failure, and de- ficiency upon itself. These extent These are the provinces of the EXECUTION, or EXECUTIVE YiQjsf Power of the State, these are the modes, and forms, in which it touches Civilrightsin their simple shape as held to Individuals,in their aggregate in the System of power raised to preserve them, in their aggregate again in the Powers that conduct, or compose that System, and in their aggregate still again, in the Machine, or fabric, that founds the whole i WHAT INVOLVED BY LEGISLATIVE. 155 of the Structure — For these were the shapes, in which LAW touched them, see Chap. XLIX., by INSTITUTES, by MEASURES, by REVIEW of POWERS, and ALTERATIONS of the CONSTITUTION— These were ajso the shapes in which JUDG- MENT touched them, seeing how these INSTITUTES ap- plied, how these MEASURES had been executed, how these POWERS had discharged their functions, how these ALTERA- TIONS of the fabric, ordered, had been performed, ordaining the issue of Law upon them — These then, must be also the modes, ia which EXECUTION touches them, executing that issue throughout, or rather, the Order of the State, or Law of, in all cases — These then are the modes, or shapes, in which EXECUTION touches Civil rights, these are the whole of its functions — This then, is the extent of EXECUTION— This is what is to be understood by it. CHAP. LIE WHAT IS INVOLVED BY THE LEGISLATIVE. WE come now to what is involved by the Law, or Dictation of the What inToL State, and it deserves our principal attention, if that Law or Dictation vtd > &c - should be, as we expect it will turn out to be, the anima, and 4>»x n of overnment— We did hint at this in our 20th Chap, see ditto., and it is now that we shall attempt to develope the PRINCIPLE. We there said, that all political power, or all the power of a State, A ^P^* 1 was properly speaking, LEGISLATIVE, because it, related gisla. ' either to the making of Laws, or the executing them, which widely speaking included their application— And we assigned, as a X 2 v._. 156 WHAT INVOLVED BY LEGISLATIVE. JUDICIAL and EXE- CUTIVE* powers turn- ed by LEGISLA- TIVE. A rule, IDEA. Enquiring if it have been adhered to, or adhering to, FACT. Motions applied. reason fur this, that it was the intention of every Law that it should be applied, and executed, indeed that such application and Execution, were in truth, no more than following out, and realizing it — And we adhere to the same notions — In great effect, though not in the specific nature of the, POWERS, Law, or Dicta- tion, is the idea of Montesquieu's circle (See Book II. Ch. II. and Bock III.. Ch. I..) which existed before the circle was drawn. And we adhere, we say, to the same notion of all power being LE- GISLATIVE, because, though JUDGMENT, and EXECUTION, are undoubtedly distinct powers, and have a distinct weight in the Constitution of a State, and whether they had, or not have a distinct idea or essence in themselves, yet are these essences so inferior, so Jed, and committed, so guided, prescribed to, and turned about, by the Law or Dictation (always however acting within its own sphere), that it answers the same purpose almost, as if they were involved in it — And to be convinced of this, it will be necessary here to go a little into the theory of the POM ERS, and see how they bear Id* their action, and tendency upon one another. And first as to Law, or Dictation— What is the idea of Dictation ? A rule — And what is the idea of a rule? Something to walk by — Then this must be IDEA (Especially in the present case, a great PRINCIPLE, it must be greater than some other thing) else it is light, and not light, guidance, and not guidance, at the same time — And if the question be, whether this rule have been adhered to, it is a question of PACT — And if something be done adhering to it, it is another question of FACT. Now apply these notions to LAW, JUDGMENT, and EXE- CUTION-LAW, or DICTATION, is the rule, or guidance, al- ways to be adhered to in every respect— JUDGMENT, is the seeing if it have been adhered to— And EXECUTION is the doing some- thing adhering to it. .fll WHAT INVOLVED BY LEGISLATIVE, j* 7 It is evident then, that LAW, or DICTATION must have what* r,AW, ever relates to IDEA, or PRINCIPLE, and JUDGMENT, or EXE- JgJ}^ CUTION, whatever, to FACT, or CIRCUMSTANCES— The idea, Judg. MENT the guidance, the enlightening, must always.be PRINCIPLE, itandEXK. cannot otherwise than be, PRINCIPLE— The point whether that £^!°^' LAW, or Dictation have been adhered to, or adhering to it, must stances. always be FACT, it cannot otherwise than be FACT,: or CIRC U DI- STANCES. Try it through the DEPARTMENTS— What is LAW, or DIC- ?| ied . A J to 3 J n rough ths TATION in INSTITUTES ? It is providing for Life, Property, and pKl*Rf. t-, i' , '"T»i'^i > * • x MEN PS, ia Iree-agency, by instituting Penalties for their invasion, also, forlNSTi. the succession to Property, by instituti g Titles to it— See whether Llfe &c " LAW, or DICTATION have not PRINCIPLE here ? If Life be taken, g»™il and LAW or DICTATION take no cognizance of the more, or less malignant mode,, more, or less prejudicial to society, in which it is taken then all Murthcr,and Homicide would be the same, and the rule would be no rule at all — If it does, then come degrees of guilt, and IDEA, or PRINCIPLE along with them— If intentionally, with what in- tention, deliberate, or sudden and provoked, or self-defensive, pro£ur> sound mind — All these are of PRINCIPLE, and belong to Dic- tation, because you cannot dictate, or guide properly, unless you dictate through — You cannot make a Dictation against Homicide,, against a Crime, or in proportion to Crimes, unless you tell, what is a Crime, and what kinds of Crimes, nor apportion Punishments pro- perly, unless you exhaust the subject in the same manner, that is, by the Crime, and degrees of Crime—And if you do this, you have all that relates to PRINCIPLE— The FACTS, whether the Crime so specified exist, or how exactly it should be punished, are no parts of the PRINCIPLE, therefore you can have the PRINCIPLE with- out them— The CIRCUMSTANCES do not interfere with, it— As little does the PRINCIPLE interfere with the CIRCUM- STANCES; for the DICTATION has nothing to do with the 158 WHAT INVOLVED BY LEGISLATIVE, cognizance of the FACTS, which constitute the enquiry of JUDG- MENT, nor the actual mode, or manner of performing, which makes the accomplishment of EXECUTION — It is evident then, that in providing against the invasion of Life, DICTATION has the PRINCIPLE, and JUDGMENT, and EXECUTION, the CIR- CUMSTANCES— So in invasions of Property, and Free-agency, the snme notions apply mutatis mutandis, with circumstances of atrocity, maltreating, irritation, insolence, and aggravation— So also corre- sspondingly,,in Contestations concerning Property— The PRINCIPLE is here, the Title to it^-What should be the Title, else no Justice — InContes- What has that to do, with the proofs, or the execution of the Title? tationscon- ^tfat a son should succeed to his father, preferably, others according to ccrning rro- r ^ & pe««y, more remote Propinquity, or Destination, or Acquisition, what has this to do with the proofs of that Propinquity, Destination, or Acquisition, or the actual putting in possession of the estate, when the Title is found to it? Nothing at all— Here then LAW, or DICTATION has the PRINCIPLE, and JUDGMENT, and EXECUTION, CIRCUMSTANCES, equally as in the other cases— So much for INSTITUTES. Then again as to MEASURES-What does LAW, or DICTA- In MEA- to SURES. TION, what ought it to do here? Dictate the MEASURE— Give the Order— Then, dictate anew Law or Dictation, to be judged, and executed, that is, to have trial, and punishment, if the MEASURE be not executed— Here the Law, or Dictation for the MEASURE, is the IDEA for the MANDATORY execution in the first instance, and then the new Law with the old in it, for the JUDGMENT, and EXECUTION in the second — What have these original ideas to do, .with the MANDATORY execution in the first case, or the proofs of non-execution, or actual enforcing of the punishment in the after one ? They are all three, that is, the MANDATORY execution, and the proofs, and the after punishment, FACTS, and CIRCUM- STANCES, and to be done or proved by FACTS or CIRC UM- WHAT INVOLVED BY LEGISLATIVE. lo o, STANCES — Law or Dictation, the original notion, lias nothing to do with them-LAW or DICTATION then, has here also the PRIN- CIPLE, and JUDGMENT, and EXECUTION , the CIRCUM- STANCES. So it, is in a REVIEW of POWERS -This is a general eegQtnfftc*. r " &**- that the Law, or Dictation takes of the neglect, or abuse, win. h powers. JUDGMENT, or EXECUTION may have made generally, a id substantially in exercising their functions— It must make a new Law for this, a Law, Rule, or Dictation, proceeding on the substance of the old, else as above mentioned, ex post facto — But it is a Law, Rule, or Dictation, an Idea to be compared with the conduct of these POWERS, and then punishment to take place accordingly, if they be found guilty upon it — Now what have this punishment, and this comparison to do, with the Rule, that is " WHAT the Rule lays " down/' all that is, or ought to be, consideration of Justice— If less* the DICTATION does not dictate what it ought to dictate, being the right, or wrong of conduct, to the parties, who are subject to it, if more, it goes beyond its province, because it is only to dictate that right, or wrong — Following then this, what has Dictation to do with the proofs of theconduct of these POWERS, of its squaring, or not squaring, with the Rules laid down, or the actual manner of executing the punishment, if they should be found guilty? . Here then again, the PRINCIPLE belongs to DICTATION, and the CIRCUMSTANCES to JUDGMENT, and EXECUTION. Last come ALTERATIONS of the CONSTITUTION— The r„ alter. same notions apply here — There is the Order for executing thet heC0 ^.° ALTERATION— That is the Rule-the ALTERATION must square f? 1 ™- " with it— It must be executed—If not, JUDGMENT and EXECU- TION must take place on a new Law,or Rule (of the substance of the old) for trying for not executing, and heie also, the DICTATION all through, is the IDEA, or PRINCIPLE— First, for the execution o£ a0v; WHAT INVOLVED BY LEGISLATIVE, the ALTERATION, in the first instance, and then, for trying For the non-execution of it, in the second, and the punishment follow- ing upon it — What have these original IDEAS to do with the manner of performing the ALTERATION in the first case, or the proof of non- performance, or the mode of executing the punishment ? Through tie Here then, through the whole FOUR DEPARTMENTS, it is four DE- evident that LAW, or DICTATION, has, and ought to have, J**jk the PRINCIPLE, and the JUDGMENT, and EXECUTION law his the CIRCUMSTANCES— And if LAW, or DICTATION have PLE? CU the PRINCIPLE, and JUDGMENT, and EXECUTION, the MBNTabd CIRCUMSTANCES, then must it much commit the JUDG- bxkcu" MENT and EXECLTION-The PRINCIPLE, or rule which it CIKCUM. gives, must much commit the JUDGMENT which is to judge by A ' it — The punishment, possession, or measure which it names, must infinitely lead the EXECUTION, which is to perform it— In truth if PRINCIPLE be totally taken up, as it ought to be, by DIC- TATION, it leaves only considerations of mere FACT, or CIR- CUMSTANCES to JUDGMENT, and EXECUTION, which is the narrowest ground (comp'aratively) possible — But has LAW, or DICTATION any more than this? Has it any of the POWERS of JUDGMENT, and EXECUTION ? No-Not a grain, not an atom of them— It was observed, that JUDGMENT, and EXE- CUTION had each an essence of themselves — A complete abstract, or IDEA self-sufficient, and independent*— A Circle, to use the language of Montesquieu (see Book II. Ch. II. and Book III. Ch. I. notes) which was to be exemplified by the line that traced it, and that line was their actual exercise in practice— The Circle was the POWER — Here was the notion— Now does not every one see • ATTAPKH2. WHAT INVOLVED BY LEGISLATIVE. l6l that this essence, that is, of the POWERS, is complete in itself? That they are the POWERS of JUDGING, and EXECUTING, of com- paring the RULE, IDEA, PRINCIPLE, NOTION of the DIC- TATION, or « WHAT IS ENJOINED," with the subject of it, which is the POWDER of JUDGING, and of executing the thing enjoined, which is the POWER of EXECUTING ? Though they are lesser POWERS, much less, how infinitely, than that of framing yet they are POWERS — They are a separate thing, a separate POWER, and a separate essence W hatha ve the things, the abso- lute points, the objects of JUDGING, or EXECUTING, an IDEA to do with the IDEA itself, or framing the IDEA? They the JUDGMENT, and EXECUTION are much led by that IDEA, very much influenced, very much turned by it, almost as much, and yet a difference too, as if they were involved in it, so that LAW, or DICTATION, may be said to have the field, or what without LAW or DICTATION, would be the held of them, but it has no more, it has not their ESSENCE, never can have their ESSENCE, never more than the first ESSENCE, nor has any thing to do with their ESSENCE— They are totally separate things — You might as wel^ mix the IDEA of one with that of two, or any other incongruous notion — At the same time, they are much committed by the first ESSENCE, which leaves them so little room for their's, yet however without trespassing on its own limits — For if always what is PRINCIPLE, go into LAW, or DICTATION, and always what is CIRCUMSTANCE, into JUDGMENT, and EXECUTION, little will be left to JUDGMENT, and EXECUTION. And this applies more strongly to EXECUTION — That is, per- Commits forming, as we know, or accomplishing, the Law, or Dictation xjon U * ofthe State— If the other POWER (JUDGMENT) compared the Law, or Dictation of it, with its subject, and told it's reference to that subject, so does this (EXECUTION) execute that reference, and in most cases, the Law directly— Executes Y 162 WHAT INVOLVED BY LEGISLATIVE. in short, the Law, or Dictation in one way, or other — And if JUDGMENT was committed by the IDEA, which it had to compare with its subject, so is this more committed still, by its being (generally) a type of DICTATION, which is indeed the difference between JUDGMENT, and EXECUTION, that EXECUTION (generally) is a part of DICTATION, JUDGMENT is not—We can conceive a Law, or Dictation against a Crime,without JUDGMENT absolutely coming upon it, (except in a REVIEW of POWERS where JUDGMENT is the essence of the LAW, or DICTATION), it is no part of the IDEA, however it may have been attracted after- wards by the necessity of human affairs — It does not therefore contradict identity — But this is not the case with EXECUTION — It is as much a part of the DICTATION against a Crime, that it should be punish- ed, as that it is forbid, and so through the DEPARTMENTS,(in Mea- sures and ALTERATIONS of the CONSTITUTION EXECUTION is the whole of the DICTATION) we cannot conceive it without it, it is to conceive DICTATION, and not to conceive it at the same time — So far is EXECUTION more implicated in DICTATION, than JUDGMENT, in its general sense, not in its particular, it is there the POWER — It has the option of varying in degrees, the mode of its Ex- ecution, and this is the very particular Execution, contradistinguish- ed from the general above, which constitutes the POWER — With- out it, it would be none— EXECUTION then, is a separate POWER, though both it, and JUDGMENT are infinitely inferior to LAW, or DICTATION. But the great Superiority which LAW, or DICTATION has, arises from the appropriate function it possesses, of drawing back "ciprocaiion. JUDGMENT, and EXECUTION to their duty, whenever they the pow. have in the least deviated from it, and so bringing them into its another ° ne measures > without in the least trespassing upon the integrity of the other POWERS — This function is that of repeating, reciprocating,and reverberating itself (if we may use the expression) through the DEPART- Great Supe riori'y of Law by Re WHAT INVOLVED BY LEGISLATIVE. ^ MENTS, from one POWER to another— If for instance, JUDG- MENT do not judge in INSTITUTES, then comes a Law, or Dic- tation, to overhaul it", and execution upon that Law, by EXECU- TION— If EXECUTION does not execute in MEASURES, then comes a Law, or Dictation similarly to overhaul it, and Judgment upon that by the JUDGMENT— If JUDGMENT, and EXECU- TION both fail generally, then a law for reviewing them both in REVIEW of POWERS^ and JUDGMENT, and EXECUTION upon that— So in ALTERATIONS of the CONSTITUTION, a Law to overhaul non-execution, and Judgment upon that — So that wherever either JUDGMENT, or EXECUTION fail, the other is always ready to come upon it, prompted by the LAW or DICTA- TION, and wherever one comes, the other must also, for JUDG- MENT must always precede EXECUTION, and EXECUTION follow JUDGMENT. It must be supposed what an amazing force, these two POWERS 7A of JUDGMENT and EXECUTION must give to the LAW, or DICTATION, so multiplied and implicated into one another — Al- ways at the nod of the LAW, or DICTATION, which has at any and at all times, the power of recalling them to their duty, when they have the least strayed from it, and so as we said, inducing into its measures — It may be imagined how immense this is, in the variou s DEPARTMENTS, whether the LAW, or DICTATION frame IN- STITUTES, order MEASURES, REVIEW POWERS, or ALTER the CONSTITUTION. Nay more, it may Multiply these PQWERS into their multipli- Multiplies cation, and that multiplication into itself, in infinitum, changing the jjj;™ {JJ tl [ very changes themselves, and multiplying multiplication into multi- tipiicaUon, and so in in. plication. fioitum. With this power, it must be seen, what LAW', or DICTATION Aristotle's 1 praise »f ] s — It has so much the command of all, it is so infinitely, and multi- Reasoning Y 2 applies to it. \ !(34 WHAT INVOLVED BY JUDICIAL. plicitly their Master, that what Aristotle says of the Superiority of die Art of Reasoning applies to it — " That whereas other Arts and " Sciences are of their own particular subjects, this is of ALL, it in- cludes ALL OTHERS, it is kata nANTaN."* Such is the immense force given to LAW, or DICTATION by re- ciprocation, and it is this added to its particular faculties in the first in- stance, that amazingly confirms? and strengthens it — For if it retain the field of, or what would be the field of JUDGMENT and EXE- CUTION, and have a correspondingly great influence, in consequence, it must be a great accession to this, that it can prevent the POW- ERS from straying from their duty. This then, is the idea of LAW, or DICTATION, this its power in consequence^ and this the confirmation of it by reciprocation, all which constitute it that greatsweeping POWER, that MASS of INVOLU- TION, which distinguishes it—So that it may be in truth called, anima the ANIMA, andrrxH of the State, the SOUL, and ESSENCEof and rrxH of GOVERNMENT— This is the involution of LAW, or DICTATION. ment RN " Now for those of JUDGMENT and EXECUTION. This LAW. CHAP. LIII. WHAT IS INYOLVED BY THE JUDICIAL. importance AND if the question was before, what was involved by the LAW, tokno W ,&c. or D1CTAT10 N of the State, so is it now, what is involved by the * Eo-raidi q gnropixv, §vv>p,is mpi txafon Tot/ Qtvfnctti to tili^ofj.tvov wiCaw tokto yap wli/Mas Irtgxs ttrrt rixms *Pyo>* rm y*g aXXwv ixxttv TlEPl TO ATTH/YnOKEIMENON ft ^$ac-x«A.x» xxi mienx* eiot ,xrpix>) tnpi vytttvov xxi toaigof xxi ytufMTpix i mtft rx cnfA.CixftxoTx vigi etpi9(A.o\i' opoivs oi xai oti Xontxt rtn rtyiu* xxt tiriftiiA**' ^ & gnrogixn, mipi rev $o9i nos^ ii iiftm, 2W< <)vyxa6*i 6i'Mj.tt» To mQxnt. 3» xxi OT nEPl TI TENOI HMON A^Wi'lZMENCN vjmm t« tiy/iwu APJXT. TEX. PHT, K*p. £. WHAT INVOLVED BY JUDICIAL. X65 JUDGMENT, or DISCERNMENT of it— And if it was of impor- tance before to know what was involved by theLAW, or DICTATION because it turned the State (See Chap. LII.) so is it now what is in- volved by the JUDGMENT, or DISCERNMENT of it, because it has much influence in the State. For it is easy to see from the general account that was given of influence LAW, JUDGMENT, and EXECUTION, in Chapters XLIX , L., ment?; and LI., that the influence of JUDGMENT must be, in proportion i ,r ^ )tir,ioa to Ihkit of to that of LAW, or DICTATION— -Not in any kind of equality or law. admeasurement, to be sure, but always in consideration to its own part, or share, or administration in the State, on LAW, on DIC- TATION. For it was seen there, that LAW or DICTATION was the Law law Rule, or Rule of the State, excluding will, sa as to produce the governing M L £vr coin . of itself— And that JUDGMENT was the comparing this Rule or P arin b'» *c. Law of the State, excluding will, where it was to be compared, that is, in JUDICIAL matters, with the subject submitted to it, and telling its reference to that subject.* And we see now further, that this LAW, or DICTATION has law, the IDEA, or PRINCIPLE of the matter, submitted to it, and ™ N ' CI - that JUDGMENT, and EXECUTION, have the FACTS, or CIR-JUdg. ME NT CUMSTANCES of it,each in its own way— (See last chapter) We know and exec. therefore what to think of the influence of JUDGMENT, as to how^J^ES. far it is inferior to that of LAW, and how far this shews su- perior, or involving, where it is superior, or involving, to that of EXE- CUTION, viz. in the JUDICIAL, or executing its own sentences, but of this afterwards. And first in investigating the possession which JUDGMENT hasJUDG- of FACTS, or CIRCUMSTANCES, the question is, how it is con- ^JJtt' LAW, or PR1NCI. * TO YnON. PJjE to 166 WHAT INVOLVED BY JUDICIAL. CIRCUM- STANCES. In all it's colours, and tendencies. This great through Govern- ment. INSTI- TUTES Life- el/ nected with, or relates to them — In what shape it has to do with how it refers to, or attaches to them — And here it may be said, that it takes cognizance of them — It enquires (where it acts at all) into the PRINCIPLE which the LAW, (or DICTATION) lays down, and sees how it applies, to these FACTS — It tells its reference to them — It is, where it acts at all, the middle step, between the PRIN- CIPLE, and it's SUBJECT, between the RULE, and the FACT which it applies to. And how does it become this ? How does it effect this situation, which makes it the middle step? It compares this RULE, LIGHT, or PRINCIPLE, this GUIDANCE, in all its shades, or tenden- cies, with the SUBJECT submitted to it, or FiiCT, in all its shades, colours, and tendencies, and tells its reference to it. It may be seen how far this goes taken through the whole com- pass of Government— Try it through the DEPARTMENTS— See what it (JUDGMENT) does in the first, viz. that of INSTITUTES— We saw (see Chapter on LAW, what involved by) that in the IN- STITUTE for Life, it was a natural, necessary, and inevitable con- sideration, how that Life was invaded, whether with intention, be- cause intention made the guilt, and consequently mischief of the thing, which taken through society, is in proportion to the design, embraced in a large sense — Again whether that intention was deliberate, or sudden, and provoked, or self-defensive, or of unsound mind (ifitcanbe called intention) — If sudden, and provoked, it could not be so malicious — If self-defensive, it would be to abandon all right, that a man must give up his own Life, if of unsound mind, it would be to extinguish all Criminality, to make that Criminal, as far as Criminality arises from intention, since there could be no (proper) intention— It is the business then of JUDGMENT, to enquire into all these cases, and to see from the FACTS, and CIRCUMSTAN- CES, " whether the situation exist, that the LAW has in meaning, WHAT INVOLVED BY JUDICIAL. tfft " that it precisely states, and mentions" — And it is to be observed, that aucir- in going through these FACTS, or CIRCUMSTANCES, wherever ^vxnces any come in, or are admitted as proofs in the course of these things, and as proofs they instantly become, or indeed were before, PRINCIPLES them-paiNCI. selves, that is, minor PRINCIPLES, down to the very last— For what- PLES * ever proves any thing, let it be ever so trivial, or seemingly barren,or in- significant, or disjointed a CIRCUMSTANCE, must be an IDEA.that is come under an IDEA, applying to the human species, in general, (generally speaking) else no proof,* and in that case JUDGMENT will have a great latitude, in chusing among the CIRCUMSTANCES to take such as will infer the proof— For the proof, as we said above, depending upon such CIRCUMSTANCES, (again generally speak- ing) attaching to a number of persons, which CIRCUMSTANCES JUDGMENT 1 has the privilege of connecting with these persons, or not, as it pleases, though it cannot alter the truth, it must thereby have a great latitude — And if any one doubt of the force of the proof depending upon CIRCUMSTxlNCES attaching to a number of persons, let them only regard the following — We shall suppose, that in an accusation for Murther, or intention deliberate in Life, a man had avowed malice, then it stands thus : A man who avows malice intends: This man avow'd malice; Therefore he intended. * There may be a person whose modes of acting, and speaking, are so different from those of other men, that the reasoning from his this or that action will not apply to other men, so that there might be proof without it, but this is an extraordinary case, as that of Herod and Mariamne, there it might s-tand : Wherever this man loves he kills : This man loved; Therefore he killed. 9 1^8 WHAT INVOLVED BY JUDICIAL. Or that he had declared he hated : A man who hates, intends : This man hated ; Therefore he intended. Who does not see that the proof of the intention deliberate, de- pends upon the minor of the syllogism attaching, or becoming a PRINCIPLE, so as to make all persons who hate deliberately in- tend, or all who avow malice deliberately intend ? Where would be the hold without it? And so of the other cases of sudden, and provoked intention, self-defence, and unsound mind correspond- ingly — It is then a great province,to*go through all theseFACTS and va- riety of FACTS, and tell HOW FAR, or if at all, the LAW, or RULE of the State applies to them— What an extent of CIRCUMSTAN- CES, and qualification of CIRCUMSTANCES it embraces, what a latitude of IDEAS, and application of IDEAS, to these CIR- CUMSTANCES— It is an immense field of probabilities, presump- tions, certainties, so as to make one general certainty, human cer- tainty collected from the whole — It is an amazing and expanded ex- tent, an immense space, though not without a boundary. Property* The next case is Property,and it may be observed, that nearly the same ideas apply here, as in the invasion of Life. There is the same sweep of chusing amid a variety of FACTS, and colours of FACTS, and ap- plications of LAW, and colours of application — To chuse among a variety of simple facts, to establish the actual doingofthe thing, more or less serious, more or less seriously dressed, and to apply more, or less solid parts of the Law, more, or less intensely applying to them, so that the latitude of JUDGMENT is here almost as extensive, as in the former cases of Life, and Property. Free-agency. The next is Free-agency — The attacks upon this, are subjects of a different investigation— What shall be esteemed an attack upon Free- WHAT INVOLVED BY JUDICIAL. Jfcg agency ? Free-agency is the enjoyment of the freedom of our ac- tions — The first attack upon this then, must be, what should put us under any durance, any kind of confinement, or constraint — This in- vasion is less frequent, than any other in society, as nothing can be gained, generally speaking, by putting any one under constraint — It does happen however that persons may be put under constraint, or de- prived of their personal freedom in different shapes,and wherever it hap- pens in any shape, the LAW makes, or ought to make heavy penalties for it — And it is in selecting the circumstances of such constraint,dressing them up differently, applying different parts of Law, and more, or ]ess,intensely, that appears the latitude of JUDGMENT— -It is further to be observed, that there is the same malus animus to be in- vestigated here, as in the othercases of Life, and Property, the more, or less determined intention of constraint, with facts, and colours of facts* and applications of Law, and colours of application — The scope there- fore of JUDGMENT here, is nearly as wide as in the other cases. The last case of INSTITUTES, is Contestations concerning Pro- „ pertv, or what may be called Civil suits, or actions. And there tations is id these,at least a similar latitude, for JUDGMENT — Property! 8 There is indeed almost the same scope for it, as in the first case of CiV1L « INSTITUTES, or Life— Here Law tells the Title, or what makes the Title to the Property, as in the other case, the Crime, or what makes the Crime — To make this Title, come Propinquity, Destination, or Acquisition, as in the other cases, design to constitute the Crime — ■ The one is the essence of the right, as the other is of the guilt — . And as in proof of intention, either deliberate, or sudden, and pro- voked, or self-defensive, or of unsound mind, come suitable corre- sponding circumstances to prove it, in the case of Life, so here come Legitimacy, Authenticity, (of deed) and marks of acquirement, to z 170 WHAT INVOLVED BY JUDICIAL. fix Propinquity, Destination, or Acquisition in this case of Property ■ — Marching abreast all the way down — And in supporting Propin- quity, Destination, or Acquisition, these suitable corresponding cir- cumstances come all in as proofs depending upon a certain quality attaching to a certain description of persons — As for instance in Pro- pinquity Whoever is born in his wedlock, has by Propinquity : This man was born in his wedlock ; Therefore he has by Propinquity. Or in Destination : Whoever has by a deed written with his own hand, has by Desti- nation : This man has by a deed written with his own hand ; Therefore he has by Destination. And so of the remaining case Acquisition : Whoever gets a thing by exclusive labour, has by Acquisition : This man got by exclusive labour ; Therefore he has by Acquisition. Proofs both Thus then do the proofs answer all through — And it is evident that in crimi. JUDGMENT has a great latitude down through the PRINCIPLES, civil!* that is, CIRCUMSTANCES making minor PRINCIPLES all the way,successively applying them to persons, and connecting with, in in- finitum, till they are exhausted, so that it has constantly a force, corresponding to that of LAW, expanding as the interpretation of PRINCIPLES expands, and contracting as it is contracted — It is needless to observe, that the power of JUDGMENT, must be thus as extensive here, or in this case of INSTITUTES, viz. Contes- tations concerning Property, as in the others. The next DEPARTMENT is MEASURES— This is a MAN- SURES. DATORY, not a JUDICIAL DEPARTMENT-It is not as in the WHAT INVOLVED BY JUDICIAL. 171 former DEPARTMENT of INSTITUTES, a passive Law, or ordi- nance, as we may call it,a rule for certain predicaments, but which must wait for those predicaments, to be called forth into operation,it is an ac- tive command to execute, or do something for the benefit, or behoof, or prosperity of the State, which must be directly — Then, if that be not executed,or done, comes a new Law(of the substance of the old, else ex post facto, or trying byaLaw not made at the time)prescribingthe points, by which the EXECUTION of the State,is to be judged for not execut- ing — And here it may be subject of enquiry, how far those syllogisms enter,which include the application of CIRCUMSTANCES, and there- by make minor PRINCIPLES, as in the former DEPARTMENT of INSTITUTES— For instance, in judging on an Order, that is, on not executing an Order to attack a place, or shut up an enemy's har- bour, the Syllogism might stand : Every man who does not do his utmost to execute the Order of the State, is liable to penalties : This man did not do his utmost to execute the Order of the State ; Therefore he is liable to penalties . ; Or in an Onier to conclude a peace as Commissioner, or Genera- lissimo : Every man who does not do his utmost to execute the Order of the State, is liable to penalties : i *j mwu, - This man being ordered to conclude a peace, and carrying on war. did not do his utmost to execute the Order of the State ; Therefore he is liable to penalties. Or in internal affairs in an Order to suppress a riot : Every man who does not do his utmost to execute the Order of the State, is liable to penalties : This man being ordered to suppress a riot, and not endeavour- ing to do it, did not do his utmost to execute the order of the State ; 172 WHAT IxVVOLVED BY JUDICIAL. Therefore he is liable to penalties. And then come the penalties upon the new Law for judging for not executing this Order, which is not ex post facto, it being under- stood, or right reasonable to be understood, that these penalties, or such like, ought always to be inflicted — Only the order for original execution must be incorporated into the new Law, which prevents it from being ex post facto, or judging by a Law, not made at the time, which must never be, indeed the safest would be to transcribe the old Law for MANDATORY execution into the new for judging, and then see whether it was such as the first Order demanded — This is what the JUDGMENT is to do— But in doing this, what a variety of CIRCUMSTANCES, and QUALIFICATIONS of CIRCUMSTANCES, and APPLICATIONS of Law, and CO- LOURS of APPLICATION are to be made, in introducing the minor PRINCIPLES ! It being to be observed further, that the EXECUTION is not a single person, nor has the command of single persons, so as to be like an Individual, but a collective body, or may employ collective bodies, so that it may be thrown into very different situations from Individuals, in all of which, it must be considered independently — When we reflect on this, we see what a latitude JUDGMENT has in this DEPARTMENT. ^review The next DEPARTMENT is the REVIEW of POWERS, which is Eiis° W " more extensive still— It is here that J UDGMENT developes its whole force, it is here that it displays, and expands its whole magnitude — This DEPARTMENT is entirely JUDICIAL— It is expressly to REVIEW the POWERS, that is its object, and essence— It is that force of the LAW of the State, which recalls the POWERS to their duty, when they have deviated from it — It is by consequence, the chief Law in the State, and by the same consequence, the chiefest force of JUDGMENT, to judge that Law— And it is to be observed WHAT INVOLVED BY JUDICIAL. X73 further, that this REVIEW of POWERS, is not a REVIEW of a single Judgment, or a single Execution, or of a whole mass of Judg- ment, or a whole mass of Execution, of either properly and ex- ' clusively, but of both jointly, and indifferently — And in REVIEW- ING JUDGMENT, it. is for conniption or contumacy, and in REVIEWING EXECUTION, for remissness, relaxation, treachery, or dereliction. And in REVIEWING JUDGMENT, it is to be observed, that every thing relating to JUDICIAL, or JUDGING how a thing is, is to be considered, and in REVIEWING EXE- CUTION, every thing that relates to MANDATORY, or ACCOM- PLISHING what is ordered— And in this way, simple JUDGMENT, having only one DEPARTMENT, viz. INSTITUTES, in which it judges, or tries causes, and EXECUTION, three, INSTITUTES (executing JUDICIAL decisions) MEASURES, and ALTER- ATIONSof the CONSTITUTION, so the REVIEW has only one DEPARTMENT to try JUDGMENT in, in trying EXECU- TION, it has three — Further, it is equally a Criminal trial (loosely speaking, for all is Civil in a large sense) whether a POWER be judg- ed, or an Individual, the only difference, and that a great one, is, in extent of circumstances, though not in the essence, of the POWER, that it is a collective body, instead of an Individual. Knowing: then these general lines of distinction, we know what to do— We know what opinion to form, of the function of the REVIEW, in trying either JUDGMENT or EXECUTION— It has to consider *«»*£* the CIRCUMSTANCES, which JUDGMENT judged on, the more,MkN£ or less, whether they were properly selected, andenhanced,also the AP- PLICATION of the PRINCIPLES of the LAW, which JUDG- MENT made, whether it was that which the subject demanded, and ■whether it was properly heightened, or not — And here, whether we apply a Principle to a Subject, or judge of the application of a Prin- 174 WHAT INVOLVED BY JUDICIAL. CHI MI. WAL. CIVIL. ciple to a Subject, it is the same thing, because in both cases we measure the Principle by the Subject— As for instance : Whoever deliberately intends, murthers : This man deliberately intended ; Therefore he murthered. But the process is longer, because we admit a third term — It is not our own opinion, that we compare with the Subject, but the opinion of another person, which must answer ours, and which indeed comes to the same thing in the end, but the process, as we say, is longer — This then is the business of REVIEW, in judging JUDGMENT,to take in all the CIRCUMSTANCES, on which it judged, and APPLY the old law to them, to see if it answers our ideas — And here what a range is there, for besides that there are all the FACTS, and Variations of FACTS, and APPLICATIONS ofLaw,and colours of APPLICA- TION, that there were before, repeated over again, as in a mirror, there is the situation in which the POWER judged, to be considered — And the REVIEW is further bound above all, not to adhibit a novel choice of Facts, nor novel views of Facts, nor novel Applications of Law, nor novel Views of Application (new constructions, or new colours, either of the Law, or Fact) but such as may have arisen, or be sup- posed to have arisen, in the mind of any one — In INSTITUTES, in attacks on Life, to see if the intention deliberate, or sudden, and provoked or self-defensive, or of unsound mind (if it can be called in- tention) be properly proved, if Facts be properly chosen, and colour- ed, (their lawful degrees given them) and parts of law properly taken, and applied — So in attacks on Property, so in attacks on Free-agency, CRIMINAL, so correspondingly is Contestations concerning Property, CIVIL,if Propinquity, Destination, or Acquisition be properly judged on, as supporting Titles,being themselves supported by Legitimacy, Au. thenticity,and Marks of Acquirement— This upon INSTITUTES,for WHAT INVOLVED BY JUDICIAL. 175 INSTITUTES only come into simple JUDGMENT, or in the first instance, the other DEPARTMENTS being either double, as this REVIEW, or appropriated to EXECUTION, like MEA- SURES and ALTERATIONS of the CONSTITUTION— So far for REVIEWof JUDGMENT— No was to that of EXECUTION— And Judging F X. EC U- here it may be said, that it is of a very different, or rather what may tion be called a corresponding, or analogous nature, in its own kind — And tory. A " if JUDGMENT be tried for contumacy, or corruption, so is EXE- CUTION, for contumacy, remissness, treachery or dereliction — And if JUDGMENT simple be tried in INSTITUTES, so is EXE- CUTION, simple, in INSTITUTES, MEASURES, and ALTE- RATIONS of the CONSTITUTION-In INSTITUTES, as exe- cuting JUDICIAL decisions,in MEASURES,executing the Orders of the State, or Law of (as indeed in all) in ALTERATIONS of the CONSTITUTION, the same— In all therefore, MANDATORI- LY, or doing what it is ordered to accomplish, JUDICIALLY, or of JUDGMENT,being to examine, or see,or judge how a thing stands —And being this MANDATORY EXECUTION, it takes a colour from it,and so does its REVIEW— In JUDICIAL decisions (executing in INSTITUTES,) it is so peremptory,that it admits not of almost any qualification, or variation — But in MEASURES, it is a very different thing — There, are to be considered all the crisis', conjunctures,emergen- cies, situations, facilities, obstacles,difficulties, dangers, necessities, into which it may be thrown, and which necessarily call for a certain exertion of prudence, and moral agency, all in their own way, and all to be qualified in a certain degree, by CIRCUMSTANCES— Add to this that it is a collective force, and operating through the medium of collec- tive forces, all which make additional shades, in the degree of energy to be expected from intermediate agency — The same in a great de- gree of ALTERATIONS of the CONSTITUTION as to facilities, 176 ' WHAT INVOLVED BY JUDICIAL. obstacles, difficulties, situations, and forces, how far accomplishable, indeed much more so, but this is almost in the clouds — All we can say, of this part of REVIEW, is, that these are the PRINCIPLES, or hints at PRINCIPLES, for discerning it— And of all parts of REVIEW,that the same PACTS, and selection of FACTS, both JU- DICIAL, and MANDATORY, and APPLICATIONS of law, and colours of APPLICATION, return over again, always on the old law, repeated in the new, as in a mirror ,with the same syllogisms for their ope- ration — And it may be further added, that these same PRINCIPLES will apply to a REVIEW of REVIEW, if the REVIEWING POW- ERS themselves should fail, as noticed before, and so on, in infinitum. alter. The next is ALTERATIONS of the CONSTITUTION. JUDG- thJcoN S -° f MENT, as we said, has no force in the first instance, in this DE- STiru. * PARTMENT— It belongs entirely to the EXECUTION of the State — But it has afterwards, in the second, or REVIEW — It there comes in, as in MEASURES, it is to judge by similar facilities, difficul- ties, obstacles, emergencies, crisis', conjunctures, and situations, as enumerated above (indeed more) therefore unnecessary to mention here. This the This is the extent of JUDGMENT in REVIEW of POW- judg/ ERS, this the sweep of its force in INSTITUTES, MEASURES, ment, &c. this RE viEW, and ALTERATIONS of the Constitution— It may be seen what a latitude it embraces, in going through these DEPART. MENTS, in all the different FACTS, and colours of FACTS, both JUDICIAL and MANDATORY, that occur, with all the various APPLICATIONS, and colours of APPLICATION of Law that may be attached, and this more, or less, according to the capacity of the DEPARTMENT!!! JUDG - And if JUDGMENT go through theseDEPARTMENTS,as above, MENT in- 8 WHAT INVOLVED BY JUDICIAL. ^7 it must be obvious, that it involves the EXECUTION of the State, through all of them,inits own branch,the JUDICIAL. — But some of the DEPARTMENTS, it will be said, are JUDICIAL, and some of them MANDATORY, how then can it have any thing to do in the MANDATORY, where it has avowedly no intervention. This is very true, and neither has it in the first instance — But there are two in- stances of the DEPARTMENTS, one the simple, where it has its own nature, and another, where the JUDICIAL comes in upon it, pr rather creates a new DEPARTMENT, trying it in its own branch, as an INSTITUTE, for such must all REVIEWS be, whether of IN- STITUTES, MEASURES, REVIEW of POWERS, or ALTER- ATIONS of the CONSTITUTION. They are all of the nature of CRIMINAL INSTITUTES,therefore all JUDICIAL,for if it be for a wrong Judgment in INSTITUTES, there is an implied prohibition to wrong judge, with the punishment following afterwards, and so corre- spondingly through the other DEPARTMENTS-JUDGMENT then involves JUDICIAL EXECUTION through the whole DEPART- MENTS — The application of the punishment, where it is a CRIMI- General not ^-r.-r- • it- 1 • 1 •• ^(ttttt particular. NAL question, the application 01 the possession, where it is a CIVIL. But it must be observed again, that it is only the general EXECU- TION— The particular or detail, is the POWER. This then is the sweep of JUDGMENT, or the JUDICIAL— if judg. But if JUDGMENT have its Latitudes, it has its Limits too— It is SJ e ^ ave bounded by LAW, or the LEGISLATIVE, inasmuch as that LAW, h « s «** ii mits too. or LEGISLATIVE has the PRINCIPLE, and JUDGMENT, only the application of the PRINCIPLE to Facts, or CIRCUM- STANCES — But here it may be said, that this very thing implies a great power, and greater even that of LAW in this respect, inas- much as that almost all the disputes among men, are concerning the application of PRINCIPLES, every one agreeing that it is FIT to do RIGHT,and NOT FIT to do WRONG,but the question always returning, what is RIGHT or WRONG? And so it would imply a great A a 178 WHAT INVOLVED BY JUDICIAL. LAW ap- plies FIRST PRINCI- PLES in IN- STITUTES —CRIMI- NAL. CIVIL. In MEA- SURES. power,and greater even than that of LA Win this point,ifLAWmerely did this— If LAW only fixed the GREAT PRINCIPLES,and left JUDG- MENT to apply them — But LAW does not do this— It descends into theMinor application — It takes them into its own hands, to acertain de~ gree,so far tying up JUDGMENT — As for instance in the caseofMur- ther,it does not legislate aga ins tWrong generally, and then leave JUDG- MENT to determine what that Wrong is — No, it goes into the subject, and says, that Murther is Wrong — Nay, it interferes a second time, and says that Murther is Deliberate intention — And so in the other cases of Culpable Homicide, Self-Defence, Unsound mind, &c, always telling the GREAT PRINCIPLE, and applying it, sometimes two or three changes down— And if LAW, or LEGISLATIVE do this, then there must be a very small latitude, comparatively speaking, left to JUDGMENT, merely that of determining whether the PRINCI- PLE, so narrowed apply to the CIRCUMSTANCES, whether there- be this Deliberate intention in Murther, this Sudden and provoked in Culpable homicide, &c. &c. &c. — Always seeing whether the Princi- ple so narrowed apply, and whether the Crime defined by LAW, exist in the CRIMINAL. And so parallelly in the CIVIL, going through all the cases of Property — Seeing if the Title defined by Law exist, how far it is to be gathered out of the CIRCUMSTANCES. Whether this man be the next of Kin, whether he have got the estate Destined to him, whether he have Acquired himself, Propinquity, Destination, and Acquisition, being the whole Titles to among men, Property —And this Title is to be collected from the CIRCUMSTANCES, as in the other case, or CRIMINAL, the intention— The one as we said, being the essence of the Right, as the other is, of the Crime. MEASURES are the next thing, and the same observations ap- ply parallely here, LAW has the IDEA, or PRINCIPLE_It names the Order for the MEASURE in the first instance, and then the WHAT INVOLVED BY JUDICIAL. ^ Rule for trying for it, in the second — It does not leave the interpre- tation of RIGHT, or WRONG to the most rigid or lax, of what shall be or not be a pardonable disobedience of the Laws, but the Law itself is the Regulator — That goes down into the distinctions, that descends into all the necessary specifications. So in REVIEW of POWERS parallelly, in trying either JUDG- rnRE . MENT, or EXECUTION-LAW or LEGISLATIVE lays downj^w^ the rules for trying JUDGMENT, LAW or LEGISLATIVE lays down the rules for trying EXECUTION— These are the JUDI- CIAL, or MANDATORY, Laws— The JUDICIAL either CRIMI- NAL, or CIVIL in REVIEWING JUDGMENT, the MANDA- TORY, either expressed or implied, in trying EXECUTION— But in no case does it leave to the discretion of the REVIEW, to de- termine what shall be proper, or improper conduct in the POWERS — The consideration of that, it takes into its own hands, and its de- cisions are to be known by the Laws above mentioned. So in ALTERATIONS of the CONSTITUTION— As this is in alter. only a Measure of another kind, the same ideas apply here as in the con-° MEASURES-The same latitude for JUDGMENT by the CIR- *g™- CUMSTANCES, the same limits by restricting the PRINCIPLES. Such are the restrictions upon JUDGMENT from the LEGIS- The re- LATIVE, and such the manner in which it ties it up, always ap- ^"judg?" plying PRINCIPLES, always vindicating to itself, in the higher de- MENT - grees, and so leaving nothing to JUDGMENT, but CIRCUM- STANCES, which are in truth, its proper Province, But we ought to be cautious in limiting JUDGMENT, on the Qualification upon Limi- Application, lest we should limit it too far — It is very true, that LAW, tation. narrowing and applying these PRINCIPLES, is very different from leaving them in their full latitude to JUDGMENT, but it is equally true, that even in these Applications, so narrowed, there is a variety, as different from any idea of implicitness, or implication— A discretion as Aa2 180 WHAT INVOLVED BY JUDICIAL. distant from peremptory dictation — What do we say in all these, of the different FACTS, that may occur, and the different constructions that may be put upon them? Of the various manner of chusing, and when chosen, of extending Law towards them ? Of receiving in all tfreir shades, and of embracing through Law, with all the versatilityof Application ? Of representing in CRIMINAL, the Crime with greater force, in Civil, the Claims with more solidity ? In both cases, selecting such FACTS, as it pleases, and turning into what tendency, with all the powers of argument ? In the MAN- DATORY, picking out what it likes, for trying EXECUTION, in the JUDICIAL, what it chuses, for arraigning JUDGMENT ? And this, through the whole DEPARTMENTS, JUDICIAL in INSTITUTES, MANDATORY in MEASURES, both in REVIEW of POWERS, and the last PRINCIPLES of GOVERN- MENT, in ALTERATIONS of the CONSTITUTION. Great range. But the great range of JUDGMENT possibly, and politically to be supposed, is in the REVIEW of REVIEW of the POWERS, in infinitum — It was, as we saw, the principal force of LAW, (see last Chapter) to reciprocate, and reverberate these POWERS upon one another — It must then be the principal corresponding force of JUDGMENT, to judge that Law — To judge in all its tendencies, corresponding in these multiplications. Whatever ^ ut one thing is clear, that whatever Crimes are agitated in the crimi- State, whatever Controversies concerning Property, whatever Abuses, CIVIL, or or Neglects of Duty, whatever high Flagrancies, or Misdemeanors, POT TTT «•• CAL)Sub ] ect whatever Malversations, Delinquencies, Misbehaviours, Disorders, of * or Derangements, of any kind, whether PUBLIC, or PRIVATE, CIVIL or POLITICAL, COMMON, or INDIVIDUAL, must all come under the Cognizance of JUDGMENT,therefore with the scope of mind,or intellect to be exercised, its Latitude must be most extensive —What FACTS, and CIRCUMSTANCES, in INSTITUTES! WHAT INVOLVED BY JUDICIAL, 181 What CASUALTIES, and CRISIS' in MEASURES ! What SITUATIONS, and COLOURS of SITUATION in REVIEW of POWERS! What PRINCIPLES of GOVERNMENT, and HIGH INTERESTS, in ALTERATIONS of the CONSTITUTION ! From this view of the subject, steering equally through every pro-' vince, it may be seen what a force JUDGMENT possesses — No Bounds but what LAW r sets, no Limits, but what the superior range of LEGISLATION puts to it ! And it may be seen from this,that it commands the Collective Guilt of Commands . . . Cruilt, and the State, that it holds in its hands also, the Appropriation of its Stock, Property of and Substance — No Crime can arise,that it does not judge, no Property a e * can spring up, that it does not distribute. This then is the sweep of its force, in INSTITUTES, MEASURES, This judg- METVT REVIEW of POWERS, and ALTERATIONS of the CONSTI- TUTION — either Present, as it may be termed, or Reflective — Either tendering its decision direct, where the nature of things requires, or ultimate, as the POWERS call, above presented. It must be preserved from this, what the POWER is, its La- titude, its Essence, and] its Boundaries — It is the Guardian of the State, under another, and most Superior, the LEGISLATIVE, brooding over and protecting, the Laws of it — In the peaceable and passive scenes of GOVERNMENT, constantly, and neces- sarily operating, in the warlike, and alert, always capable of being called into vigour, and effect, if Present, considerable, if Future more so, and the more, the more so ! 182 WHAT INVOLVED BY EXECUTIVE. CHAP. LIV. WHAT IS INVOLVED BY THE EXECUTIVE. POLITI- CAL FORCE of State. Makes LAW take place. Manifest. Yet not marking CIVIL BIGHTS always, AND here it is to be observed, that CIVIL rights appear in a new shape—It is no longer in the PRINCIPLES of LEGISLATION— It is no longer in the APPLICATIONS of JUDGMENT-It is in the MASS of PUBLIC FORCE collected to actfor,and preserve them. And if CIVIL rights appear here in a new shape, so do they also, in the operations, that that shape exhibits — EXECUTION is not like LAW, in any particular— It is not like JUDGMENT— It does not, like the former, Contrive in profound speculation, what is most expedient for the State* — It does not, like the latter, Apply these Speculations — But it Gives, what has been already Designed, or Applied, its body, and effect, it makes it take place in reality, and action. Neither does it proceed in the same manner — If the things that it does, are different, so is its mode of doing them — It does not like the LEGISLATIVE, advance with a silent, but all powerful step, seen only by its effects, known only by its consequences — Neither does it wind through the State, like the JUDICIAL, certainly with potent, yet insensible, and imperceptible, sinuations — But it appears open, manifest, and bold— Decided, manful, and manly — Avowed and de- clared to all, and where it is not avowed, and declared to all, it is not EXECUTION. But most curious it is, that being the MASS of FORCE erected for the Preservation of CIVIL rights, it is in many cases, a less obvious,and * TO EYMSEPON Tfl nOAEI. WHAT INVOLVED BY EXECUTIVE. 183 prominent, manifestation of them — All are aware, that a Citizen is pro- tected, when a Law is made against Murther, or a Criminal tried for it — All also see that similar protection is afforded,when aProvision is enact- ed for regulating Property, or a Sentence pronounced in a CIVIL suit. But who contemplates when an Army marches, that it is for the protection of CIVIL rights ? And yet as was well observed by Hume, noticed before, Armies, Forces, and Fleets, Treaties, Al- liances, and Ambassadors, Legislatures, and all the vast APPARA- TUS of GOVERNMENT, are only to support the TWELVE JUDGES ! And this is in truth,the great ENDof all— Itis only to protect LIFE, Ail for CL PROPERTY, and FREE-AGENCY, that GOVERNMENT was VIL rights * ever instituted—It is for THOSE OBJECTS, which but for the CRIMES of his FELLOWS, Man might have enjoyed in a Pas- toral state— The Splendour of a Crown ends only in the Attainments of Peace, the Din of Arms, in the Tranquillity of the Cottage. Such then being the case, that all is for the Protection of CIVIL How EXE - CTTTrVF RIGHTS — That these,as we saw, are the a and n of Government, (see protects Chap.X.) let us enquire how the EXECUTIVE does preserve them ? thera ? What mite it contributes to the common stock of Protection, what share it takes, in the General System for preserving them ? And here the mode will be, as with the other POWERS, to go g through through the DEPARTMENTS— To follow in its Latitudes,its Limits, J^£{?; its Qualifications on those Limits, and its Range through them — As to MENTS - LAW, that had no Limits— It itself determined the Limits of GO- VERNMENT— It was GOVERNMENT— But JUDGMENT we can investigate better— That had its limits, &c. &c. — Let us then fol- low it. Taking up then EXECUTION, in INSTITUTES, the first DE- in insti- PARTMENT, what do we find ? How does it appear there ? We find it executing JUDICIAL decisions— Executing the Sentences of 184 WHAT INVOLVED BY EXECUTIVE. JUDGMENT, either CRIMINAL or CIVIL— Here then the Exe- cution being so well defined, it has little Latitude— But it has one —It may execute the Sentences in both Kinds with greater, or less rigour. SURE^" Eut [t is in MEASURES > that ^ displays its great force— These are its peculiar reign, these are its proper Province— MEASURES are to it, exactly what INSTITUTES, and REVIEW were to JUDGMENT— As they were JUDICIAL, these are MANDA- TORY— And as JUDGMENT could never come into the latter, till EXECUTION had preceded, so EXECUTION can never enter the former, till after JUDGMENT, And MEASURES being a PRINCIPAL DEPARTMENT to EXECUTION, the question is, how it takes them, how it acts in them ? And here, it will be natural to examine, what is necessary to maintain a State ? To preserve it ? To preserve this System, which is itself to preserve CIVIL rights — The first thing will be, to guard it External. againstForeign Enemies — And here it is to be observed, that all Nations, when constituted within their own Limits, are in the nature of IN- DIVIDUALS in private Society — They must not be attacked — And it is, along with other things, to enable them to resist such attacks, that is erected, a PUBLIC FORCE— Now EXECUTION is to manage it, and how?— When LAW, or LEGISLATIVE decrees what the defence is to be, for all proceeds from it, (see Ch. XLIX.) EXE- CUTION is to execute it— When LAW decrees a Naval, or Military Enterprize, or Naval, or Military MEASURES, according to the si- tuation of the Country, EXECUTION, or the EXECUTIVE, is to direct them — And here, what a Mass of Action there is in Armies, ■ Forces, Fleets, and Latitude of course in managing them ! It will of- ten happen that the very Salvation of the State is in the hands of the EXECUTIVE— Do we remember Themistocles at the battle of Salamis which saved Greece ? Camillus at Rome,when he rescued it > nife— WHAT INVOLVED BY EXECUTIVE. 185 from the Gauls, with many other instances ? Is this then no latitude ? Is this no discretion ? Not to talk of those minor circumstances, and emergencies, which though inferior,may be the ruin of whole Fleets, and Armies ? Countries, friendly, or hostile, as Xenophon experienced on his return from the expedition of Cyrus,* barren desarts to pass, moun- tains to overcome, landing of troops, tides, winds, seasons , with a long &c. of casualties — Do these involve no prudence ? Do these require no discretion ? Do these imply no latitude ? These then, are the External of MEASURES, for EXECUTION But are there not also Internal ? We know if a State be attacked by Foreign enemies, Internal, it may also by Domestic — And is it not the prime object of the EXECUTIVE, its very essence, to put down these? What is it good for but to support its Parent? Here then again, it must march its troops, and protect CIVIL rights in their own shape — Here again, the salvation of the Empire, is every moment in its hands — The fate of the Widow, the Infant, or the Orphan, against some san- guinary and remorseless Tyrant, who perhaps would glut his ven- geance in the bowels of his own country ! And is this no small commission ? Is this no office of moment? It is a latitude most immense, involving in its circle, the tears, lamentations, and wishes of the distressed ! — The fears, fortunes, and hopes of the Country ! But this is only Treason — This is only internal Rebellion — Are there not internalSeditions also? Immediately classing under theformer,which though not so imminently mischievous, are nevertheless productive of much tumult to the country-It is the business oftheEXECUTIONthen, to suppress these — And as in the other case, the most frantic madness, right often stood upon the limits of the most consummate prudence, from varying conjunctures, so here, the most delicate forbearance, may deviate often into the greatest eventual cruelty — And what rules * See ANABASIS. Bb 186 WHAT INVOLVED BY EXECUTIVE. will regulate this ? Would you have instructions ? As well might you file the most capriciously winding cavern with a rod of iron, as well might you regulate a vessel across the Atlantic, with specific Navigations — These Navigations, these Instructions must be the dis- cretion of your Admirals, and Commanders ! But who can seize the features of a POWER, which is Action itself, which is variation in Mobility, and motion ? — Not to men- tion inferior things— Not to name Taxes, Police, and a thousand subordinate considerations with the same Mobility in miniature, these very variations in minor exemplification ! REVlEWof The next DEPARTMENT is REVIEW— It is here, as we saw, that powers, the POWERS are tried for swerving from their duty, and it is here, that EXECUTION must execute the behests of JUDGMENT— This is a very different object — A widely varying task from punish- ing Individuals—It is here the whole force of a POWER, that is to be subdued, for EXECUTION, never has to act but upon a POWER, it is always a POWER to be judged that has transgress- ed, always a POWER, that is to be punished. And it is this feature of REVIEW, that distinguishes it, and in truth, makes a larger species of INSTITUTES— The same process is undergone, the same variations occur, with this difference only, that it is a POWER judged,instead of an Individual— Accusation, evidence, defence, sentence— And EXECUTION, to execute that sentence ! Now what a high and Imperial Office! Do we not recollect what forces each POWER has to protect it ? We must do this before we can appretiate the EXECUTION— Take then the JUDICIAL, that is the first to be tried— What does that do? It may be JUDICIAL, either Foreign, or Domestic — In the former, it may be a whole Continent that must be subjugated, a Governor with all its forces to support him — In the latter, a beloved Judge, with all the strength of Provincial attachment to defend him — What are you to do here ? How are you to bring them to justice ? — By the ■ -{ WHAT INVOLVED BY EXECUTIVE. 137 EXECUTIVE — Exactly like an Individual, who is become amen- able to the Laws — But it requires much more coercion, much more, how infinitely more, effort, and exertion ! — Then again, as to the EXE- CUTION, how do you manage that ? That also may be External, or Internal — External, as before observed, it may bavethe whole force of an Empire to protect it — Witness the calling the Satraps of Persia to account, which was always a Rebellion — So also the Bashaws of Turkey, in modern times, for such are the features of bringing External EXECUTIVES to justice ? Then again as to In- ternal — What do we say of that ? Who shall try the Internal EXE- CUTION of a State ? It may be done if a petty Officer have trans- gressed, but how to effect it when it is the EXECUTIVE of a whole country? — A singular instance occurred of this in England, in the year 1688, when James II. abdicated the throne. He was the POWER judged, the Convention Parliament, the POWER that judged, and William III. the POWER that executed. Such are the features of EXECUTION in REVIEW of POW- alter. ERS, we now come to ALTERATIONS of the CONSTITU-^con.^ TION— And here, if the last Principles of Government came in-x^oN^" to question for JUDGMENT, so do the last resources of it, into contest for EXECUTION — How are you to execute these? Petty details of Government may be easily changed, but how are you to re- verse whole CONSTITUTIONS? For it may happen that the LEGISLATURE of a Country may have decreed this, and if it should so, who shall dare to gainsay it ? The LEGISLATIVE of every country is its Omnipotence, or represents it — But it may be, that there may be refractory mem bers of the Empire— If then, the EXECUTION have to subdue these, it has to put down another Rebellion— And what a latitude is here? For besides that, the same Crisis', emergencies, situations, &c. occur over again, as in MEASURES, for ALTERA- TIONS are only MEASURES of a superior kind, there are these Bb2 188 WHAT INVOLVED BY EXECUTIVE. Crisis' multiplied with tenfold, nay, a hundred fold more precarious- ness, and importance— When we consider these things resisting Nations, confounded rights, contradicted patriotism, its latitude almost loses itself in the clouds, its magnitude disappears in an infi- nity of discretion 1 matures But if EXECUTION, like JUDGMENT, have its latitudes, it has its limits ha§ itslimits too-LAW, or LEGISLATIVE, that great force lies behind it, always ready to come forth, and draw back to its duty — Constantly regulating and directing, but above all, by RESPON- SIBILITY, controuling — It is this feature, that characterizes LEGI- TIMATE GOVERNMENT, and distinguishes from what is Arbi- trary, and Despotic — There is nothing that a Tyrant hates so much, as the very name of being ACCOUNTABLE,* be he KING, NOBI- LITY,or PEOPLE— That then the Public force of the State must be, else it is a ConstitutionalAnomala— And it is thisRESPONSIBILITY, that lies upon EXECUTION,and renders what would otherwise be in- comprehensible, a malleable, and sociable POWER in the State — Al- ways lying with its relation to the LEGISLATIVE, whether near,or at a distance, it is governed,as we may call it, by the Polarity of LEGITI- MATE GOVERNMENT. TheMagnet we see,whatever its vacillations, whatever its apparent aberrations from its point, is always regulated by its internal propensities, — So the EXECUTIVE, Whatever the grandeur of its force, whatever the extent of its discretion, that discre- tion is ever subject to the eternal, humanly talking, rules of LEGIS- LATIVE REGULATION- What we said of LAW in anotherplace, applies here, in a different exemplification — As the fixture of it, was let loose by the discretions of REASON,t so is the looseness of this fixed, by the Restrictions of LEGISLATIVE PRESCRIP- iniNSTl. TION— If it be INSTITUTES, LAW dictates the Punishment, TUTES. * YnEYGYNOS. See Demost. TJifn 1n*™™\?l\lvlZ g*la. the charac ter of it? Itisthe ACTION, the POWER, the VIVIDA 33&SL ^st^TsL.-Alw^ ready to eome forth at the Nod of the £tt& LEGISLATIVE, it represents the State, it is the ^£*«£ \Fent of GOVERNMENT Till it so acts, GOVERNMEN1 is never felt-It is an airy INSTITUTE-To cone ude alLtt ,s GO-. VERNMENT-It is visible GOVERNMENT-As LAW, or LE- rn„,nr, a «r>TTT TTTDGMENT the EYE, so this is GISLATIVE was the SOUL, J U domain ^ «i , ' the BODY-Without the Promethean fire of the LEG1S1.A11V &, a lifeless mass, without the JUDICIAL a Polyphemus in act.on, brf animated by the one, and inspired by the other, all that we can wishin the scope of CONSTITUTIONS, all that we can des.re, or desiderate in GOVERNMENT ! ! ! FINIS. W. Jlint, Printer, Old Bailey, London. UNIVERSITY OF ^ALIFO.vNIA LIBRARY BERKELEY Return to desk from which borrowed. This book is DUE on the last date stamped below. NOV gg19A7 gtt?T 7 1956U nmww aiov i6 m TTNov58MF -co V-P JAH61'!* dec 3 ma H0ct'61BC SEP 2 ? 1961 LD 21-100m-9,'47(A5702sl6)476 850787 mi Cf UNIVERSITY OF CALIFORNIA LIBRARY 1 «k>^MMMriHfeU