Book XI.
Of the Laws Which Establish Political Liberty, with Regard to the Consti-
tution.
11.1. 1. A general Idea.
I make a distinction between the laws that
establish political liberty, as it relates to the constitution, and
those by which it is established, as it relates to the citizen. The
former shall be the subject of this book; the latter I shall examine in
the next.
11.2. 2. Different Significations of the word Liberty.
There is no word
that admits of more various significations, and has made more varied
impressions on the human mind, than that of Liberty. Some have taken it
as a means of deposing a person on whom they had conferred a tyrannical
authority; others for the power of choosing a superior whom they are
obliged to obey; others for the right of bearing arms, and of being
thereby enabled to use violence; others, in fine, for the privilege of
being governed by a native of their own country, or by their own
laws.
[1]
A certain nation for a long time thought liberty consisted in
the privilege of wearing a long beard.
[2]
Some have annexed this name to
one form of government exclusive of others: those who had a republican
taste applied it to this species of polity; those who liked a
monarchical state gave it to monarchy.
[3]
Thus they have all applied the
name of liberty to the government most suitable to their own customs and
inclinations: and as in republics the people have not so constant and so
present a view of the causes of their misery, and as the magistrates
seem to act only in conformity to the laws, hence liberty is generally
said to reside in republics, and to be banished from monarchies. In
fine, as in democracies the people seem to act almost as they please,
this sort of government has been deemed the most free, and the power of
the people has been confounded with their liberty.
Footnotes
[1]
"I have copied," says Cicero, "Scævola's edict, which permits the
Greeks to terminate their difference among themselves according to their
own laws; this makes them consider themselves a free people."
[2]
The Russians could not bear that Czar Peter should make them cut
it off.
[3]
The Cappadocians refused the condition of a republican state,
which was offered them by the Romans.
11.3. 3. In what Liberty consists.
It is true that in democracies the
people seem to act as they please; but political liberty does not
consist in an unlimited freedom. In governments, that is, in societies
directed by laws, liberty can consist only in the power of doing what we
ought to will, and in not being constrained to do what we ought not to
will.
We must have continually present to our minds the difference between
independence and liberty. Liberty is a right of doing whatever the laws
permit, and if a citizen could do what they forbid he would be no longer
possessed of liberty, because all his fellow-citizens would have the
same power.
11.4. 4. The same Subject continued.
Democratic and aristocratic states
are not in their own nature free. Political liberty is to be found only
in moderate governments; and even in these it is not always found. It is
there only when there is no abuse of power. But constant experience
shows us that every man invested with power is apt to abuse it, and to
carry his authority as far as it will go. Is it not strange, though
true, to say that virtue itself has need of limits?
To prevent this abuse, it is necessary from the very nature of
things that power should be a check to power. A government may be so
constituted, as no man shall be compelled to do things to which the law
does not oblige him, nor forced to abstain from things which the law
permits.
11.5. 5. Of the End or View of different Governments.
Though all governments have the same general end, which is that of preservation,
yet each has another particular object. Increase of dominion was the
object of Rome; war, that of Sparta; religion, that of the Jewish laws;
commerce, that of Marseilles; public tranquillity, that of the laws of
China:
[4]
navigation, that of the laws of Rhodes; natural liberty, that
of the policy of the Savages; in general, the pleasures of the prince,
that of despotic states; that of monarchies, the prince's and the
kingdom's glory; the independence of individuals is the end aimed at by
the laws of Poland, thence results the oppression of the whole.
[5]
One nation there is also in the world that has for the direct end of
its constitution political liberty. We shall presently examine the
principles on which this liberty is founded; if they are sound, liberty
will appear in its highest perfection.
To discover political liberty in a constitution, no great labour is
requisite. If we are capable of seeing it where it exists, it is soon
found, and we need not go far in search of it.
Footnotes
[4]
The natural end of a state that has no foreign enemies, or that
thinks itself secured against them by barriers.
[5]
Inconvenience of the Liberum veto.
11.6. 6. Of the Constitution of England.
In every government there are
three sorts of power: the legislative; the executive in respect to
things dependent on the law of nations; and the executive in regard to
matters that depend on the civil law.
By virtue of the first, the prince or magistrate enacts temporary or
perpetual laws, and amends or abrogates those that have been already
enacted. By the second, he makes peace or war, sends or receives
embassies, establishes the public security, and provides against
invasions. By the third, he punishes criminals, or determines the
disputes that arise between individuals. The latter we shall call the
judiciary power, and the other simply the executive power of the state.
The political liberty of the subject is a tranquillity of mind
arising from the opinion each person has of his safety. In order to have
this liberty, it is requisite the government be so constituted as one
man need not be afraid of another.
When the legislative and executive powers are united in the same
person, or in the same body of magistrates, there can be no liberty;
because apprehensions may arise, lest the same monarch or senate should
enact tyrannical laws, to execute them in a tyrannical manner.
Again, there is no liberty, if the judiciary power be not separated
from the legislative and executive. Were it joined with the legislative,
the life and liberty of the subject would be exposed to arbitrary
control; for the judge would be then the legislator. Were it joined to
the executive power, the judge might behave with violence and
oppression.
There would be an end of everything, were the same man or the same
body, whether of the nobles or of the people, to exercise those three
powers, that of enacting laws, that of executing the public resolutions,
and of trying the causes of individuals.
Most kingdoms in Europe enjoy a moderate government because the
prince who is invested with the two first powers leaves the third to his
subjects. In Turkey, where these three powers are united in the Sultan's
person, the subjects groan under the most dreadful oppression.
In the republics of Italy, where these three powers are united,
there is less liberty than in our monarchies. Hence their government is
obliged to have recourse to as violent methods for its support as even
that of the Turks; witness the state inquisitors,
[6]
and the lion's
mouth into which every informer may at all hours throw his written
accusations.
In what a situation must the poor subject be in those republics! The
same body of magistrates are possessed, as executors of the laws, of the
whole power they have given themselves in quality of legislators. They
may plunder the state by their general determinations; and as they have
likewise the judiciary power in their hands, every private citizen may
be ruined by their particular decisions.
The whole power is here united in one body; and though there is no
external pomp that indicates a despotic sway, yet the people feel the
effects of it every moment.
Hence it is that many of the princes of Europe, whose aim has been
levelled at arbitrary power, have constantly set out with uniting in
their own persons all the branches of magistracy, and all the great
offices of state.
I allow indeed that the mere hereditary aristocracy of the Italian
republics does not exactly answer to the despotic power of the Eastern
princes. The number of magistrates sometimes moderates the power of the
magistracy; the whole body of the nobles do not always concur in the
same design; and different tribunals are erected, that temper each
other. Thus at Venice the legislative power is in the council, the
executive in the pregadi, and the judiciary in the quarantia. But the
mischief is, that these different tribunals are composed of magistrates
all belonging to the same body; which constitutes almost one and the
same power.
The judiciary power ought not to be given to a standing senate; it
should be exercised by persons taken from the body of the people
[7]
at certain times of the year, and consistently with a form and manner
prescribed by law, in order to erect a tribunal that should last only so
long as necessity requires.
By this method the judicial power, so terrible to mankind, not being
annexed to any particular state or profession, becomes, as it were,
invisible. People have not then the judges continually present to their
view; they fear the office, but not the magistrate.
In accusations of a deep and criminal nature, it is proper the
person accused should have the privilege of choosing, in some measure,
his judges, in concurrence with the law; or at least he should have a
right to except against so great a number that the remaining part may be
deemed his own choice.
The other two powers may be given rather to magistrates or permanent
bodies, because they are not exercised on any private subject; one being
no more than the general will of the state, and the other the execution
of that general will.
But though the tribunals ought not to be fixed, the judgments ought;
and to such a degree as to be ever conformable to the letter of the law.
Were they to be the private opinion of the judge, people would then live
in society, without exactly knowing the nature of their obligations.
The judges ought likewise to be of the same rank as the accused, or,
in other words, his peers; to the end that he may not imagine he is
fallen into the hands of persons inclined to treat him with rigour.
If the legislature leaves the executive power in possession of a
right to imprison those subjects who can give security for their good
behaviour, there is an end of liberty; unless they are taken up, in
order to answer without delay to a capital crime, in which case they are
really free, being subject only to the power of the law.
But should the legislature think itself in danger by some secret
conspiracy against the state, or by a correspondence with a foreign
enemy, it might authorise the executive power, for a short and limited
time, to imprison suspected persons, who in that case would lose their
liberty only for a while, to preserve it for ever.
And this is the only reasonable method that can be substituted to
the tyrannical magistracy of the Ephori, and to the state inquisitors of
Venice, who are also despotic.
As in a country of liberty, every man who is supposed a free agent
ought to be his own governor; the legislative power should reside in the
whole body of the people. But since this is impossible in large states,
and in small ones is subject to many inconveniences, it is fit the
people should transact by their representatives what they cannot
transact by themselves.
The inhabitants of a particular town are much better acquainted with
its wants and interests than with those of other places; and are better
judges of the capacity of their neighbours than of that of the rest of
their countrymen. The members, therefore, of the legislature should not
be chosen from the general body of the nation; but it is proper that in
every considerable place a representative should be elected by the
inhabitants.
[8]
The great advantage of representatives is, their capacity of
discussing public affairs. For this the people collectively are
extremely unfit, which is one of the chief inconveniences of a
democracy.
It is not at all necessary that the representatives who have
received a general instruction from their constituents should wait to be
directed on each particular affair, as is practised in the diets of
Germany. True it is that by this way of proceeding the speeches of the
deputies might with greater propriety be called the voice of the nation;
but, on the other hand, this would occasion infinite delays; would give
each deputy a power of controlling the assembly; and, on the most urgent
and pressing occasions, the wheels of government might be stopped by the
caprice of a single person.
When the deputies, as Mr. Sidney well observes, represent a body of
people, as in Holland, they ought to be accountable to their
constituents; but it is a different thing in England, where they are
deputed by boroughs.
All the inhabitants of the several districts ought to have a right
of voting at the election of a representative, except such as are in so
mean a situation as to be deemed to have no will of their own.
One great fault there was in most of the ancient republics, that the
people had a right to active resolutions, such as require some
execution, a thing of which they are absolutely incapable. They ought to
have no share in the government but for the choosing of representatives,
which is within their reach. For though few can tell the exact degree of
men's capacities, yet there are none but are capable of knowing in
general whether the person they choose is better qualified than most of
his neighbours.
Neither ought the representative body to be chosen for the executive
part of government, for which it is not so fit; but for the enacting of
laws, or to see whether the laws in being are duly executed, a thing
suited to their abilities, and which none indeed but themselves can
properly perform.
In such a state there are always persons distinguished by their
birth, riches, or honours: but were they to be confounded with the
common people, and to have only the weight of a single vote like the
rest, the common liberty would be their slavery, and they would have no
interest in supporting it, as most of the popular resolutions would be
against them. The share they have, therefore, in the legislature ought
to be proportioned to their other advantages in the state; which happens
only when they form a body that has a right to check the licentiousness
of the people, as the people have a right to oppose any encroachment of
theirs.
The legislative power is therefore committed to the body of the
nobles, and to that which represents the people, each having their
assemblies and deliberations apart, each their separate views and
interests.
Of the three powers above mentioned, the judiciary is in some
measure next to nothing: there remain, therefore, only two; and as these
have need of a regulating power to moderate them, the part of the
legislative body composed of the nobility is extremely proper for this
purpose.
The body of the nobility ought to be hereditary. In the first place
it is so in its own nature; and in the next there must be a considerable
interest to preserve its privileges — privileges that in themselves are
obnoxious to popular envy, and of course in a free state are always in
danger.
But as a hereditary power might be tempted to pursue its own
particular interests, and forget those of the people, it is proper that
where a singular advantage may be gained by corrupting the nobility, as
in the laws relating to the supplies, they should have no other share in
the legislation than the power of rejecting, and not that of resolving.
By the power of resolving I mean the right of ordaining by their own
authority, or of amending what has been ordained by others. By the power
of rejecting I would be understood to mean the right of annulling a
resolution taken by another; which was the power of the tribunes at
Rome. And though the person possessed of the privilege of rejecting may
likewise have the right of approving, yet this approbation passes for no
more than a declaration that he intends to make no use of his privilege
of rejecting, and is derived from that very privilege.
The executive power ought to be in the hands of a monarch, because
this branch of government, having need of despatch, is better
administered by one than by many: on the other hand, whatever depends on
the legislative power is oftentimes better regulated by many than by a
single person.
But if there were no monarch, and the executive power should be
committed to a certain number of persons selected from the legislative
body, there would be an end then of liberty; by reason the two powers
would be united, as the same persons would sometimes possess, and would
be always able to possess, a share in both.
Were the legislative body to be a considerable time without meeting,
this would likewise put an end to liberty. For of two things one would
naturally follow: either that there would be no longer any legislative
resolutions, and then the state would fall into anarchy; or that these
resolutions would be taken by the executive power, which would render it
absolute.
It would be needless for the legislative body to continue always
assembled. This would be troublesome to the representatives, and,
moreover, would cut out too much work for the executive power, so as to
take off its attention to its office, and oblige it to think only of
defending its own prerogatives, and the right it has to execute.
Again, were the legislative body to be always assembled, it might
happen to be kept up only by filling the places of the deceased members
with new representatives; and in that case, if the legislative body were
once corrupted, the evil would be past all remedy. When different
legislative bodies succeed one another, the people who have a bad
opinion of that which is actually sitting may reasonably entertain some
hopes of the next: but were it to be always the same body, the people
upon seeing it once corrupted would no longer expect any good from its
laws; and of course they would either become desperate or fall into a
state of indolence.
The legislative body should not meet of itself. For a body is
supposed to have no will but when it is met; and besides, were it not to
meet unanimously, it would be impossible to determine which was really
the legislative body; the part assembled, or the other. And if it had a
right to prorogue itself, it might happen never to be prorogued; which
would be extremely dangerous, in case it should ever attempt to encroach
on the executive power. Besides, there are seasons, some more proper
than others, for assembling the legislative body: it is fit, therefore,
that the executive power should regulate the time of meeting, as well as
the duration of those assemblies, according to the circumstances and
exigencies of a state known to itself.
Were the executive power not to have a right of restraining the
encroachments of the legislative body, the latter would become despotic;
for as it might arrogate to itself what authority it pleased, it would
soon destroy all the other powers.
But it is not proper, on the other hand, that the legislative power
should have a right to stay the executive. For as the execution has its
natural limits, it is useless to confine it; besides, the executive
power is generally employed in momentary operations. The power,
therefore, of the Roman tribunes was faulty, as it put a stop not only
to the legislation, but likewise to the executive part of government;
which was attended with infinite mischief.
But if the legislative power in a free state has no right to stay
the executive, it has a right and ought to have the means of examining
in what manner its laws have been executed; an advantage which this
government has over that of Crete and Sparta, where the Cosmi
[9]
and the Ephori
[10]
gave no account of their administration.
But whatever may be the issue of that examination, the legislative
body ought not to have a power of arraigning the person, nor, of course,
the conduct, of him who is entrusted with the executive power. His
person should be sacred, because as it is necessary for the good of the
state to prevent the legislative body from rendering themselves
arbitrary, the moment he is accused or tried there is an end of liberty.
In this case the state would be no longer a monarchy, but a kind of
republic, though not a free government. But as the person entrusted with
the executive power cannot abuse it without bad counsellors, and such as
have the laws as ministers, though the laws protect them as subjects,
these men may be examined and punished — an advantage which this
government has over that of Gnidus, where the law allowed of no such
thing as calling the Amymones
[11]
to an account, even after their administration;
and therefore the people could never obtain any satisfaction for the injuries done them.
Though, in general, the judiciary power ought not to be united with
any part of the legislative, yet this is liable to three exceptions,
founded on the particular interest of the party accused.
The great are always obnoxious to popular envy; and were they to be
judged by the people, they might be in danger from their judges, and
would, moreover, be deprived of the privilege which the meanest subject
is possessed of in a free state, of being tried by his peers. The
nobility, for this reason, ought not to be cited before the ordinary
courts of judicature, but before that part of the legislature which is
composed of their own body.
It is possible that the law, which is clearsighted in one sense, and
blind in another, might, in some cases, be too severe. But as we have
already observed, the national judges are no more than the mouth that
pronounces the words of the law, mere passive beings, incapable of
moderating either its force or rigour. That part, therefore, of the
legislative body, which we have just now observed to be a necessary
tribunal on another occasion, is also a necessary tribunal in this; it
belongs to its supreme authority to moderate the law in favour of the
law itself, by mitigating the sentence.
It might also happen that a subject entrusted with the
administration of public affairs may infringe the rights of the people,
and be guilty of crimes which the ordinary magistrates either could not
or would not punish. But, in general, the legislative power cannot try
causes: and much less can it try this particular case, where it
represents the party aggrieved, which is the people. It can only,
therefore, impeach. But before what court shall it bring its
impeachment? Must it go and demean itself before the ordinary tribunals,
which are its inferiors, and, being composed, moreover, of men who are
chosen from the people as well as itself, will naturally be swayed by
the authority of so powerful an accuser? No: in order to preserve the
dignity of the people, and the security of the subject, the legislative
part which represents the people must bring in its charge before the
legislative part which represents the nobility, who have neither the
same interests nor the same passions.
Here is an advantage which this government has over most of the
ancient republics, where this abuse prevailed, that the people were at
the same time both judge and accuser.
The executive power, pursuant of what has been already said, ought
to have a share in the legislature by the power of rejecting, otherwise
it would soon be stripped of its prerogative. But should the legislative
power usurp a share of the executive, the latter would be equally
undone.
If the prince were to have a part in the legislature by the power of
resolving, liberty would be lost. But as it is necessary he should have
a share in the legislature for the support of his own prerogative, this
share must consist in the power of rejecting.
The change of government at Rome was owing to this, that neither the
senate, who had one part of the executive power, nor the magistrates,
who were entrusted with the other, had the right of rejecting, which was
entirely lodged in the people.
Here then is the fundamental constitution of the government we are
treating of. The legislative body being composed of two parts, they
check one another by the mutual privilege of rejecting. They are both
restrained by the executive power, as the executive is by the
legislative.
These three powers should naturally form a state of repose or
inaction. But as there is a necessity for movement in the course of
human affairs, they are forced to move, but still in concert.
As the executive power has no other part in the legislative than the
privilege of rejecting, it can have no share in the public debates. It
is not even necessary that it should propose, because as it may always
disapprove of the resolutions that shall be taken, it may likewise
reject the decisions on those proposals which were made against its
will.
In some ancient commonwealths, where public debates were carried on
by the people in a body, it was natural for the executive power to
propose and debate in conjunction with the people, otherwise their
resolutions must have been attended with a strange confusion.
Were the executive power to determine the raising of public money,
otherwise than by giving its consent, liberty would be at an end;
because it would become legislative in the most important point of
legislation.
If the legislative power was to settle the subsidies, not from year
to year, but for ever, it would run the risk of losing its liberty,
because the executive power would be no longer dependent; and when once
it was possessed of such a perpetual right, it would be a matter of
indifference whether it held it of itself or of another. The same may be
said if it should come to a resolution of entrusting, not an annual, but
a perpetual command of the fleets and armies to the executive power.
To prevent the executive power from being able to oppress, it is
requisite that the armies with which it is entrusted should consist of
the people, and have the same spirit as the people, as was the case at
Rome till the time of Marius. To obtain this end, there are only two
ways, either that the persons employed in the army should have
sufficient property to answer for their conduct to their
fellow-subjects, and be enlisted only for a year, as was customary at
Rome: or if there should be a standing army, composed chiefly of the
most despicable part of the nation, the legislative power should have a
right to disband them as soon as it pleased; the soldiers should live in
common with the rest of the people; and no separate camp, barracks, or
fortress should be suffered.
When once an army is established, it ought not to depend immediately
on the legislative, but on the executive, power; and this from the very
nature of the thing, its business consisting more in action than in
deliberation.
It is natural for mankind to set a higher value upon courage than
timidity, on activity than prudence, on strength than counsel. Hence the
army will ever despise a senate, and respect their own officers. They
will naturally slight the orders sent them by a body of men whom they
look upon as cowards, and therefore unworthy to command them. So that as
soon as the troops depend entirely on the legislative body, it becomes a
military government; and if the contrary has ever happened, it has been
owing to some extraordinary circumstances. It is because the army was
always kept divided; it is because it was composed of several bodies
that depended each on a particular province; it is because the capital
towns were strong places, defended by their natural situation, and not
garrisoned with regular troops. Holland, for instance, is still safer
than Venice; she might drown or starve the revolted troops; for as they
are not quartered in towns capable of furnishing them with necessary
subsistence, this subsistence is of course precarious.
In perusing the admirable treatise of Tacitus On the Manners of the
Germans,
[12]
we find it is from that nation the English have borrowed the idea of their
political government. This beautiful system was invented first in the woods.
As all human things have an end, the state we are speaking of will
lose its liberty, will perish. Have not Rome, Sparta, and Carthage
perished? It will perish when the legislative power shall be more
corrupt than the executive.
It is not my business to examine whether the English actually enjoy
this liberty or not. Sufficient it is for my purpose to observe that it
is established by their laws; and I inquire no further.
Neither do I pretend by this to undervalue other governments, nor to
say that this extreme political liberty ought to give uneasiness to
those who have only a moderate share of it. How should I have any such
design, I who think that even the highest refinement of reason is not
always desirable, and that mankind generally find their account better
in mediums than in extremes?
Harrington, in his Oceana, has also inquired into the utmost degree
of liberty to which the constitution of a state may be carried. But of
him indeed it may be said that for want of knowing the nature of real
liberty he busied himself in pursuit of an imaginary one; and that he
built a Chalcedon, though he had a Byzantium before his eyes.
Footnotes
[8]
See Aristotle, "Politics," Book iv., chap. 4.
[9]
See Aristotle, "Politics," Book ii., chap. 10.
[11]
These were magistrates chosen annually by the people. See
Stephen of Byzantium.
[[12]]
It was lawful to accuse the Roman magistrates after the
expiration of their several offices. See in Dionysius Halicarnassus, ix,
the affair of Genutius the tribune.
[12]
De minoribus rebus principes consultant, de majoribus omnes; ita
tamen lit ea quoque quorum penes plebem arbitrium est, apud principes pertractentur.
11.7. 7. Of the Monarchies we are acquainted with.
The monarchies we are
acquainted with have not, like that we have been speaking of, liberty
for their direct view: the only aim is the glory of the subject, of the
state, and of the sovereign. But hence there results a spirit of
liberty, which in those states is capable of achieving as great things,
and of contributing as much perhaps to happiness as liberty itself.
Here the three powers are not distributed and founded on the model
of the constitution above-mentioned; they have each a particular
distribution, according to which they border more or less on political
liberty; and if they did not border upon it, monarchy would degenerate
into despotic government.
11.8. 8. Why the Ancients had not a clear Idea of Monarchy.
The ancients had no notion of a government founded on a body of nobles, and much less
on a legislative body composed of the representatives of the people. The
republics of Greece and Italy were cities that had each their own form
of government, and convened their subjects within their walls. Before
Rome had swallowed up all the other republics, there was scarcely
anywhere a king to be found, no, not in Italy, Gaul, Spain, or Germany;
they were all petty states or republics. Even Africa itself was subject
to a great commonwealth: and Asia Minor was occupied by Greek colonies.
There was, therefore, no instance of deputies of towns or assemblies of
the states; one must have gone as far as Persia to find a monarchy.
I am not ignorant that there were confederate republics; in which
several towns sent deputies to an assembly. But I affirm there was no
monarchy on that model.
The first plan, therefore, of the monarchies we are acquainted with
was thus formed. The German nations that conquered the Roman empire were
certainly a free people. Of this we may be convinced only by reading
Tacitus On the Manners of the Germans. The conquerors spread themselves
over all the country; living mostly in the fields, and very little in
towns. When they were in Germany, the whole nation was able to assemble.
This they could no longer do when dispersed through the conquered
provinces. And yet as it was necessary that the nation should deliberate
on public affairs, pursuant to their usual method before the conquest,
they had recourse to representatives. Such is the origin of the Gothic
government amongst us. At first it was mixed with aristocracy and
monarchy — a mixture attended with this inconvenience, that the common
people were bondmen. The custom afterwards succeeded of granting letters
of enfranchisement, and was soon followed by so perfect a harmony
between the civil liberty of the people, the privileges of the nobility
and clergy, and the prince's prerogative, that I really think there
never was in the world a government so well tempered as that of each
part of Europe, so long as it lasted. Surprising that the corruption of
the government of a conquering nation should have given birth to the
best species of constitution that could possibly be imagined by man!
11.9. 9. Aristotle's Manner of Thinking.
Aristotle is greatly puzzled in treating of monarchy.
[13]
He makes five species; and he does not distinguish them by the
form of constitution, but by things merely accidental, as the
virtues and vices of the prince; or by things extrinsic, such as
tyranny usurped or inherited.
Among the number of monarchies he ranks the Persian empire and the
kingdom of Sparta. But is it not evident that the one was a despotic
state and the other a republic?
The ancients, who were strangers to the distribution of the three
powers in the government of a single person, could never form a just
idea of monarchy.
Footnotes
[13]
"Politics," Book iii, chap. 14.
11.10. 10. What other Politicians thought.
To temper monarchy, Arybas, king of Epirus,
[14]
found no other remedy than a republic. The Molossi, not knowing how to
limit the same power, made two kings,
[15]
by which means the state was weakened more than the prerogative; they wanted rivals,
and they created enemies.
Two kings were tolerable nowhere but at Sparta; here they did not
form, but were only a part of the constitution.
Footnotes
[14]
See Justin, Book xvii.
[15]
Aristotle, "Politics," Book v, chap. 11.
11.11. 11. Of the Kings of the heroic Times of Greece.
In the heroic times of Greece, a kind of monarchy arose that was not of long duration.
[16]
Those who had been inventors of arts, who had fought in their country's
cause, who had established societies, or distributed lands among the
people, obtained the regal power, and transmitted it to their children.
They were kings, priests, and judges. This was one of the five species
of monarchy mentioned by Aristotle;
[17]
and the only one that can give us any idea of the monarchical constitution.
But the plan of this constitution is opposite to that of our modern monarchies.
The three powers were there distributed in such a manner that the
people were the legislature,
[18]
and the king had the executive together with the judiciary power; whereas
in modern monarchies the prince is invested with the executive and legislative
powers, or at least with part of the legislative, but does not act in a judiciary
capacity.
In the government of the kings of the heroic times, the three powers
were ill-distributed. Hence those monarchies could not long subsist. For
as soon as the people got the legislative power into their hands, they
might, as they everywhere did, upon the very least caprice, subvert the
regal authority.
Among a free people possessed of the legislative power, and enclosed
within walls, where everything tending towards oppression appears still
more odious, it is the masterpiece of legislation to know where to place
properly the judiciary power. But it could not be in worse hands than in
those of the person to whom the executive power had been already
committed. From that very instant the monarch became terrible. But at
the same time as he had no share in the legislature, he could make no
defence against it, thus his power was in one sense too great, in
another too little.
They had not as yet discovered that the true function of a prince
was to appoint judges, and not to sit as judge himself. The opposite
policy rendered the government of a single person insupportable. Hence
all these kings were banished. The Greeks had no notion of the proper
distribution of the three powers in the government of one person; they
could see it only in that of many; and this kind of constitution they
distinguished by the name of Polity.
[19]
Footnotes
[18]
See what Plutarch says in the "Life of Theseus." See likewise Thucydides,
Book i.
[19]
Aristotle, "Politics," Book iv, chap. 8.
11.12. 12. Of the Government of the Kings of Rome, and in what Manner the
three Powers were there distributed.
The government of the kings of Rome
had some relation to that of the kings of the heroic times of Greece.
Its subversion, like the latter's, was owing to its general defect,
though in its own particular nature it was exceedingly good.
In order to give an adequate idea of this government, I shall
distinguish that of the first five kings, that of Servius Tullius, and
that of Tarquin.
The crown was elective, and under the first five kings the senate
had the greatest share in the election.
Upon the king's decease the senate examined whether they should
continue the established form of government. If they thought proper to
continue it, they named a magistrate
[20]
taken from their own body, who chose a king; the senate were to approve of the election, the people to
confirm it, and the augurs to declare the approbation of the gods. If
any of these three conditions was wanting, they were obliged to proceed
to another election.
The constitution was a mixture of monarchy, aristocracy, and
democracy; and such was the harmony of power that there was no instance
of jealousy or dispute in the first reigns. The king commanded the
armies, and had the direction of the sacrifices: he had the power of
determining
[21]
civil and criminal
[22]
causes; he called the senate together, convened the people, laid some affairs before the latter, and regulated the rest with the senate.
[23]
The authority of the senate was very great. The kings oftentimes
pitched upon senators with whom they sat in judgment; and they never
laid any affair before the people till it had been previously debated
[24]
in that august assembly.
The people had the right of choosing
[25]
magistrates, of consenting to the new laws, and, with the king's permission, of making war and
peace; but they had not the judicial power. When Tullius Hostilius
referred the trial of Horatius to the people, he had his particular
reasons, which may be seen in Dionysius Halicarnassus.
[26]
The constitution altered under
[27]
Servius Tullius. The senate had no share in his election; he caused himself to be proclaimed by the
people; he resigned the power of hearing civil causes,
[28]
reserving none to himself but those of a criminal nature; he laid all affairs
directly before the people, eased them of the taxes, and imposed the
whole burden on the patricians. Hence in proportion as he weakened the
regal together with the senatorial power, he augmented that of the
plebeians.
[29]
Tarquin would neither be chosen by the senate nor by the people; he
considered Servius Tullius as a usurper, and seized the crown as his
hereditary right. He destroyed most of the senators; those who remained
he never consulted; nor did he even so much as summon them to assist at
his decisions.
[30]
Thus his power increased: but the odium of that power received a new addition,
by usurping also the authority of the people, against whose consent he enacted
several laws. The three powers were by these means re-united in his person; but
the people at a critical minute recollected that they were legislators, and there
was an end of Tarquin.
Footnotes
[20]
Dionysius Halicarnassus, Book ii, p. 120, and Book iv, pp. 242, 243.
[21]
See Tanaquil's "Discourse on Livy," Book i, dec. l, and the regulations
of Servius Tullius in Dionysius Halicarnassus, Book iv. p. 229.
[22]
See Dionysius Halicarnassus, Book ii, p. 118, and Book iii, p. 171.
[23]
It was by virtue of a senatus-consultum that Tullius Hostilius
ordered Alba to be destroyed. — Ibid., Book iii, pp. 167 and 172.
[24]
Ibid., Book iv, p. 276.
[25]
Ibid., Book ii. And yet they could not have the nomination of all
offices, since Valerius Publicola made that famous law by which every
citizen was forbidden to exercise any employment, unless he had obtained
it by the suffrage of the people.
[26]
Ibid., Book iii, p. 159.
[28]
He divested himself of half the regal power, says Dionysius
Halicarnassus, Book iv, p. 229.
[29]
It was thought that if he had not been prevented by Tarquin he
would have established a popular government. — Ibid., Book iv, p. 243.
11.13. 13. General Reflections on the State of Rome after the Expulsion of
its Kings.
It is impossible to be tired of so agreeable a subject as
ancient Rome: thus strangers at present leave the modern palaces of that
celebrated capital to visit the ruins; and thus the eye, after
recreating itself with the view of flowery meads, is pleased with the
wild prospect of rocks and mountains.
The patrician families were at all times possessed of great
privileges. These distinctions, which were considerable under the
kings, became much more important after their expulsion. Hence arose the
jealousy of the plebeians, who wanted to reduce them. The contest struck
at the constitution, without weakening the government; for it was very
indifferent as to what family were the magistrates, provided the
magistracy preserved its authority.
An elective monarchy, like that of Rome, necessarily supposes a
powerful aristocratic body to support it, without which it changes
immediately into tyranny or into a popular state. But a popular state
has no need of this distinction of families to maintain itself. To this
it was owing that the patricians, who were a necessary part of the
constitution under the regal government, became a superfluous branch
under the consuls; the people could suppress them without hurting
themselves, and change the constitution without corrupting it.
After Servius Tullius had reduced the patricians, it was natural
that Rome should fall from the regal hands into those of the people. But
the people had no occasion to be afraid of relapsing under a regal power
by reducing the patricians.
A state may alter in two different ways, either by the amendment or
by the corruption of the constitution. If it has preserved its
principles and the constitution changes, this is owing to its amendment;
if upon changing the constitution its principles are lost, this is
because it has been corrupted.
The government of Rome, after the expulsion of the kings, should
naturally have been a democracy. The people had already the legislative
power in their hands; it was their unanimous consent that had expelled
the Tarquins; and if they had not continued steady to those principles,
the Tarquins might easily have been restored. To pretend that their
design in expelling them was to render themselves slaves to a few
families is quite absurd. The situation therefore of things required
that Rome should have formed a democracy, and yet this did not happen.
There was a necessity that the power of the principal families should be
tempered, and that the laws should have a bias to democracy.
The prosperity of states is frequently greater in the insensible
transition from one constitution to another than in either of those
constitutions. Then it is that all the springs of government are upon
the stretch, that the citizens assert their claims, that friendships or
enmities are formed amongst the jarring parties, and that there is a
noble emulation between those who defend the ancient and those who are
strenuous in promoting the new constitution.
11.14. 14. In what Manner the Distribution of the three Powers began to
change after the Expulsion of the Kings.
There were four things that
greatly prejudiced the liberty of Rome. The patricians had engrossed to
themselves all public employments whatever; an exorbitant power was
annexed to the consulate; the people were often insulted; and, in fine,
they had scarcely any influence at all left in the public suffrages.
These four abuses were redressed by the people.
1st. It was regulated that the plebeians might aspire to some
magistracies; and by degrees they were rendered capable of them all,
except that of Inter-rex.
2nd. The consulate was dissolved into several other magistracies;
[31]
prætors were created, on whom the power was conferred of trying private causes;
quæstors
[32]
were nominated for determining those of a criminal nature; diles were established
for the civil administration; treasurers
[33]
were made for the management of the public money; and, in fine, by the creation
of censors the consuls were divested of that part of the legislative power which
regulates the morals of the citizens and the transient polity of the different
bodies of the state. The chief privileges left them were to preside in the great meetings
[34]
of the people, to assemble the senate, and to command the armies.
3rd. The sacred laws appointed tribunes, who had a power of checking
the encroachments of the patricians, and prevented not only private but
likewise public injuries.
In fine, the plebeians increased their influence in the general
assemblies. The people of Rome were divided in three different manners
-- by centuries, by curi, and by tribes; and whenever they gave their
votes, they were convened in one of those three ways.
In the first the patricians, the leading men, the rich and the
senate, which was very nearly the same thing, had almost the whole
authority; in the second they had less; and less still in the third.
The division into centuries was a division rather of estates and
fortunes than of persons The whole people were distributed into a
hundred and ninety-three centuries,
[35]
which had each a single vote. The patricians and leading men composed the
first ninety-eight centuries; and the other ninety-five consisted of the
remainder of the citizens. In this division therefore the patricians were
masters of the suffrages.
In the division into curi,
[36]
the patricians had not the same advantages; some, however, they had, for it was
necessary to consult the
augurs, who were under the direction of the patricians; and no proposal
could be made there to the people unless it had been previously laid
before the senate, and approved of by a senatus-consultum. But, in the
division into tribes they had nothing to do either with the augurs or
with the decrees of the senate; and the patricians were excluded.
Now the people endeavoured constantly to have those meetings by curi
which had been customary by centuries, and by tribes, those they used to
have before by curi; by which means the direction of public affairs soon
devolved from the patricians to the plebeians.
Thus when the plebeians obtained the power of trying the patricians
-- a power which commenced in the affair of Coriolanus,
[37]
they insisted upon assembling by tribes,
[38]
and not by centuries; and when the new magistracies
[39]
of tribunes and diles were established in favour of the people, the latter
obtained that they should meet by curi in order to nominate them; and after
their power was quite settled, they gained.
[40]so far their point as to assemble by tribes
to proceed to this nomination.
Footnotes
[31]
Livy, dec. 1, Book vi.
[32]
Quæstores parricidii. — Pomponius, Leg. 2, 23, ff. "De Orig. Jur."
[33]
Plutarch, "Life of Poplicola."
[34]
Comitiis centuriatis.
[35]
See Livy, i, 43; Dionysius Halicarnassus, Book iv and vii.
[36]
Dionysius Halicarnassus, Book ix, p. 598.
[38]
Contrary to the ancient custom, as may be seen: ibid., Book v, p. 320.
[39]
Ibid., Book v, pp. 410, 411.
[40]
Ibid., Book ix, p. 650.
11.15. 15. In what Manner Rome, in the flourishing State of that Republic,
suddenly lost its Liberty.
In the heat of the contests between the
patricians and the plebeians, the latter insisted upon having fixed
laws, to the end that the public judgments should no longer be the
effect of capricious will or arbitrary power. The senate, after a great
deal of resistance, acquiesced; and decemvirs were nominated to compose
those laws. It was thought proper to grant them an extraordinary power,
because they were to give laws to parties whose views and interest it
was almost impossible to unite. The nomination of all magistrates was
suspended; and the decemvirs were chosen in the comitia sole
administrators of the republic. Thus they found themselves invested with
the consular and the tribunition power. By one they had the privilege of
assembling the senate, by the other that of convening the people; but
they assembled neither senate nor people. Ten men only of the republic
had the whole legislative, the whole executive, and the whole judiciary
power. Rome saw herself enslaved by as cruel a tyranny as that of
Tarquin. When Tarquin trampled on the liberty of that city, she was
seized with indignation at the power he had usurped; when the decemvirs
exercised every act of oppression, she was astonished at the
extraordinary power she had granted.
What a strange system of tyranny — a tyranny carried on by men who
had obtained the political and military power, merely from their
knowledge in civil affairs, and who at that very juncture stood in need
of the courage of those citizens to protect them abroad who so tamely
submitted to domestic oppression!
The spectacle of Virginia's death, whom her father immolated to
chastity and liberty, put an end to the power of the decemvirs. Every
man became free, because every man had been injured; each showed himself
a citizen because each had a tie of the parent. The senate and the
people resumed a liberty which had been committed to ridiculous tyrants.
No people were so easily moved by public spectacles as the Romans.
That of the empurpled body of Lucretia put an end to the regal
government. The debtor who appeared in the forum covered with wounds
caused an alteration in the republic. The decemvirs owed their expulsion
to the tragedy of Virginia. To condemn Manlius, it was necessary to keep
the people from seeing the Capitol. Csar's bloody garment flung Rome
again into slavery.
11.16. 16. Of the legislative Power in the Roman Republic.
There were no rights to contest under the decemvirs: but upon the restoration of
liberty, jealousies revived; and so long as the patricians had any
privileges left, they were sure to be stripped of them by the plebeians.
The mischief would not have been so great had the plebeians been
satisfied with this success; but they also injured the patricians as
citizens. When the people assembled by curi or centuries, they were
composed of senators, patricians, and plebeians; in their disputes the
plebeians gained this point,
[41]
that they alone without patricians or senate should enact the laws called Plebiscita; and the assemblies in
which they were made had the name of comitia by tribes. Thus there were
cases in which the patricians
[42]
had no share in the legislative power, but
[43]
were subject to the legislation of another body of the state. This was the extravagance of liberty. The people, to establish a
democracy, acted against the very principles of that government. One
would have imagined that so exorbitant a power must have destroyed the
authority of the senate. But Rome had admirable institutions. Two of
these were especially remarkable: one by which the legislative power of
the people was established, and the other by which it was limited.
The censors, and before them the consuls, modelled
[44]
and created, as it were, every five years the body of the people; they exercised the
legislation on the very part that was possessed of the legislative
power. "Tiberius Gracchus," says Cicero, "caused the freedmen to be
admitted into the tribes, not by the force of his eloquence, but by a
word, by a gesture; which had he not effected, the republic, whose
drooping head we are at present scarcely able to uphold, would not even
exist."
On the other hand, the senate had the power of rescuing, as it were,
the republic out of the hands of the people, by creating a dictator,
before whom the sovereign bowed his head, and the most popular laws were
silent.
[45]
Footnotes
[41]
Ibid., Book xi, p. 725.
[42]
By the sacred laws, the plebeians had the power of making the
plebiscita by themselves, without admitting the patricians into their
assembly — Ibid., Book vi, p. 410; Book vii, p. 430.
[43]
By the law enacted after the expulsion of the decemvirs, the
patricians were made subject to the plebiscita, though they had not a
right of voting there. Livy, Book iii, p. 55, and Dionysius Halicarnassus, Book xi,
p. 725. This law was confirmed by that of Publius Philo the dictator, in
the year of Rome 416. Livy, Book viii. 12.
[44]
In the year 312 of Rome the consuls performed still the business
of surveying the people and their estates, as appears by Dionysius
Halicarnassus, Book xi.
[45]
Such as those by which it was allowed to appeal from the
decisions of all the magistrates to the people.
11.17. 17. Of the executive Power in the same Republic.
Jealous as the people were of their legislative power, they had no great uneasiness
about the executive. This they left almost entirely to the senate and to
the consuls, reserving scarcely anything more to themselves than the
right of choosing the magistrates, and of confirming the acts of the
senate and of the generals.
Rome, whose passion was to command, whose ambition was to conquer,
whose commencement and progress were one continued usurpation, had
constantly affairs of the greatest weight upon her hands; her enemies
were ever conspiring against her, or she against her enemies.
As she was obliged to behave on the one hand with heroic courage,
and on the other with consummate prudence, it was requisite, of course,
that the management of affairs should be committed to the senate. Thus
the people disputed every branch of the legislative power with the
senate, because they were jealous of their liberty; but they had no
disputes about the executive, because they were animated with the love
of glory.
So great was the share the senate took in the executive power, that,
as Polybius
[46]
informs us, foreign nations imagined that Rome was an aristocracy. The senate disposed of the public money, and farmed out the
revenue; they were arbiters of the affairs of their allies; they
determined war or peace, and directed in this respect the consuls; they
fixed the number of the Roman and of the allied troops, disposed of the
provinces and armies to the consuls or prætors, and upon the expiration
of the year of command had the power of appointing successors; they
decreed triumphs, received and sent embassies: they nominated, rewarded,
punished, and were judges of kings, declared them allies of the Roman
people, or stripped them of that title.
The consuls levied the troops which they were to carry into the
field; had the command of the forces by sea and by land; disposed of the
forces of the allies; were invested with the whole power of the republic
in the provinces; gave peace to the vanquished nations, imposed
conditions on them, or referred them to the senate.
In the earliest times, when the people had some share in the affairs
relating to war or peace, they exercised rather their legislative than
their executive power. They scarcely did anything else but confirm the
acts of the kings, and after their expulsion those of the consuls or
senate. So far were they from being the arbiters of war that we have
instances of its having been often declared, notwithstanding the
opposition of the tribunes. But growing wanton in their prosperity, they
increased their executive power. Thus
[47]
they created the military tribunes, the nomination of whom till then had belonged to the generals;
and some time before the first Punic war, they decreed that only their
own body should have the right of declaring war.
[48]
Footnotes
[47]
In the year of Rome 444, Livy, dec. 1, Book ix. As the war
against Perseus appeared somewhat dangerous, it was ordained by a
senatus-consultum that this law should be suspended, and the people
agreed to it. Livy, dec. 5, Book ii.
[48]
"They extorted it from the senate," says Freinshemius, dec. 2, Book
tit. i, De Sicariis et homicidiis.
[[65]]
This took place, especially in regard to crimes committed in
Italy, which were subject chiefly to the inspection of the senate. See
Livy, Dec. 1, Book ix, p. 26, concerning the conspiracies at Capua.
[[66]]
This was the case in the prosecution for the murder of
Posthumius, in the year 340 of Rome. See Livy, Book iv, p. 50.
[[67]]
This judgment was passed in the year of Rome 567.
[[69]]
Cicero, in "Brutus."
[[70]]
This is proved from Livy, Book xliii, p. 46, who says that Hannibal
rendered their magistracy annual.
[[71]]
The senatus-consultums were in force for the space of a year,
though not confirmed by the people. — Dionysius Halicarnassus Book ix, p.
595; Book xi, p. 735.
[[73]]
Capite censos plerosque. — Sallust, "De Bello Jugurth," p. 84.
[[74]]
Fragment of this author, xxxvi, in the collection of Constantine
Porphyrogenitus, "Of Virtues and Vices" [Historica].
[[75]]
Fragment of his history, taken from the extract "Of Virtues and
Vices" [Historica].
[[76]]
Fragment of the book xxxiv in the extract "Of Virtues and Vices"
[Historica].
[[77]]
"Penes quos Romæ tum judicia erant, atque ex equestri ordine
solerent sortito judices eligi in causa Prætorum et Proconsulum, quibus
post administratam provinciam dies dicta erat."
11.19. 19. Of the Government of the Roman Provinces.
Such was the distribution of the three powers in Rome. But they were far from being
thus distributed in the provinces. Liberty prevailed in the centre and
tyranny in the extreme parts.
While Rome extended her dominions no farther than Italy, the people
were governed as confederates, and the laws of each republic were
preserved. But when she enlarged her conquests, and the senate had no
longer an immediate inspection over the provinces, nor the magistrates
residing at Rome were any longer capable of governing the empire, they
were obliged to send prætors and proconsuls. Then it was that the harmony
of the three powers was lost. The persons appointed to that office were
entrusted with a power which comprehended that of all the Roman
magistracies; nay, even that of the people.
[49]
They were despotic magistrates, extremely well adapted to the distance of the places to
which they were destined. They exercised the three powers; and were, if
I may presume to use the expression, the bashaws of the republic.
We have elsewhere observed
[50]
that in a commonwealth the same magistrate ought to be possessed of the executive power, as well civil
as military. Hence a conquering republic can hardly communicate her
government, and rule the conquered state according to her own
constitution. And indeed as the magistrate she sends to govern is
invested with the executive power, both civil and military, he must also
have the legislative: for who is it that could make laws without him? It
is necessary, therefore, that the governor she sends be entrusted with
the three powers, as was practised in the Roman provinces.
It is more easy for a monarchy to communicate its government,
because the officers it sends have, some the civil executive, and others
the military executive power, which does not necessarily imply a
despotic authority.
It was a privilege of the utmost consequence to a Roman citizen to
have none but the people for his judge. Were it not for this, he would
have been subject in the provinces to the arbitrary power of a proconsul
or of a proprætor. The city never felt the tyranny which was exercised
only on conquered nations.
Thus, in the Roman world, as at Sparta, the freemen enjoyed the
highest degree of liberty, while those who were slaves laboured under
the extremity of servitude.
While the citizens paid taxes, they were raised with great justice
and equality. The regulation of Servius Tullius was observed, who had
distributed the people into six classes, according to their difference
of property, and fixed the several shares of the public imposts in
proportion to that which each person had in the government. Hence they
bore with the greatness of the tax because of their proportionable
greatness of credit, and consoled themselves for the smallness of their
credit because of the smallness of the tax.
There was also another thing worthy of ad miration, which is, that
as Servius Tullius's division into classes was in some measure the
fundamental principle of the constitution, it thence followed that an
equal levying of the taxes was so connected with this fundamental
principle that the one could not be abolished without the other.
But while the city paid the taxes as she pleased, or paid none at
all,
[51]
the provinces were plundered by the knights, who were the farmers of the public revenue. We have already made mention of their
oppressive extortions, with which all history abounds.
"All Asia," says Mithridates,
[52]
"expects me as her deliverer; so great is the hatred which the rapaciousness of the proconsuls,
[53]
the confiscations made by the officers of the revenue, and the quirks and
cavils of judicial proceedings,
[54]
have excited against the Romans."
Hence it was that the strength of the provinces did not increase,
but rather weakened, the strength of the republic. Hence it was that the
provinces looked upon the loss of the liberty of Rome as the epoch of
their own freedom.
Footnotes
[49]
They made their edicts upon entering the provinces.
[50]
Book v. 19. See also Books ii, iii, iv, and v.
[51]
After the conquest of Macedonia the Romans paid no taxes.
[52]
Speech taken from Trogus Pompeius, and related by Justin,
xxxviii. 4.
[53]
See the orations against Verres.
[54]
It is well known what sort of a tribunal was that of Varus,
which provoked the Germans to revolt.
11.20. 20. The End of this Book.
I should be glad to inquire into the
distribution of the three powers, in all the moderate governments we are
acquainted with, in order to calculate the degrees of liberty which each
may enjoy. But we must not always exhaust a subject, so as to leave no
work at all for the reader. My business is not to make people read, but
to make them think.
