tracy; the whole body of the nobles do not always concur in the fame defigns; and different tribunals are erected, that temper cach other. Thus, at Venice, the legislative power is in the Council, the executive in the Pregadi, and the judiciary in the Quarantia. But the mifchief is, that thefe different tribunals are compofed of magiftrates all belonging to the fame body, which conftitutes almoft one and the fame power. The judiciary power ought not to be given to a ftanding fenate; it should be exercifed by perfons taken from the body of the people (as at Athens) at certain times of the year, and purfuant to a form and manner prefcribed by law, in order to erect a tribunal that should Lift only as long as neceffity requires. By this means, the power of judging, a power fo terrible to mankind, not being annexed to any particular state or profeffion, becomes, as it were, invifible. People have not then the judges continually prefent to their view; they fear the office, but not the magiftrate. In accufations of a deep or criminal nature, is proper the perfon accufed fhould have the privilege of chufing in fome measure his judges, in concurrence with the law; or at kat he thould have a right to except against great a number, that the remaining part may be deemed his own choice. The other two powers may be given rather to magiftrates or permanent bodies, because they are not exercifed on any private fubject; one being no more than the general will of the ftate, and the other the execution of that general will. But though the tribunals ought not to be ized, yet the judgments ought, and to fuch a degree as to be always conformable to the maet letter of the law. Were they to be the private opinion of the judge, people would then live in fociety without knowing exactly the obligations it lays them under. The judges ought likewife to be in the fame ftation as the accufed, or in other words, his peers, to the end that he may not imagine he is fallen into the hands of perfons inclined to treat them with rigour. If the legiflature leaves the executive power in poffeffion of a right to imprison those subjects who can give fecurity for their good be haviour, there is an end of liberty: unless they are taken up, in order to answer without delay to a capital crime: in this cafe they are really free, being fubject only to the power of the law. But thould the legislature think itself in danger by fome fecret confpiracy against the ftate, or by a correfpondence with a foreign enemy, it might authorife the executive power, for a short and limited time, to imprifon fufpected perfons, who in that cafe would lofe their liberty only for a while, to preserve it for ever. And this is the only reasonable method that can be fubftituted to the tyrannical magiftracy of the Ephori, and to the ftate inqui litors of Venice, who are alfo defpotical. As in a free ftate, every man who is fuppofed a free agent, ought to be his own governor; fo the legislative power should refide in the whole body of the people. But fince this is impoffible in large states, and in fmall ones is fubject to many inconveniences, it is fit the people fhould act by their reprefenta tives, what they cannot act by themselves. The inhabitants of a particular town are much better acquainted with its wants and interefts, than with thofe of other places; and are better judges of the capacity of their neighbours, than of that of the rest of their H S countrymen. countrymen. The members therefore of the legiflature fhould not be chofen from the general body of the nation; but it is proper, that in every confiderable place, a reprefentative should be elected by the inhabitants. The great advantage of reprefentatives is their being capable of difcuffing affairs. For this the people collectively are extremely unfit, which is one of the greatest inconveniences of a democracy. It is not at all neceffary that the reprefentatives, who have received a general instruction from their electors, fhould wait to be particularly inftructed in every affair, as is practifed in the diets of Germany. True it is, that by this way of proceeding, the fpeeches of the deputies might with greater propriety be called the voice of the nation; but, on the other hand, this would throw them into infinite delays, would give each deputy a power of controlling the affembly: and on the most urgent and preffing occafions, the fprings of the nation might be stopped by a fingle caprice. When the deputics, as Mr. Sidney well obferves, reprefent a body of people, as in Holland, they ought to be accountable to their conftituents: but it is a different thing in England, where they are deputed by boroughs. All the inhabitants of the feveral districts ought to have a right of voting at the election of a reprefentative, except fuch as are in fo mean a fituation, 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 refolutions, fuch as require fome execution; a thing of which they are abfolutely incapable. They ought to have no hand in the government, but for the chufing of reprefentatives, 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 perfon they chufe is better qualified than most of his neighbours. Neither ought the reprefentative body to be chofen for active refolutions, for which it is not fo fit; but for the enacting of laws, or to fee whether the laws already enacted be duly executed; a thing they are very capable of, and which none indeed but themfelves can properly perform. In a ftate, there are always perfons diftinguifhed by their birth, riches, or honours; but were they to be confounded with the common people, and to have only the weight of a fingle vote, like the reft, the common liberty would be their flavery, and they would have no intereft in fupporting it, as moft of the popular refolutions would be against them. The thare they have, therefore, in the legiflature, ought to be proportioned to the other advantages they have in the ftate; which happens only when they form a body that has a right to put a stop to the enterprizes of the people, as the people have a right to put a stop to theirs. The legitive power is therefore committed to the body of the nobles, and to the body chofen to reprefent the people, which have each their affemblies and deliberations apart, cach their feparate views and interests. Of the three powers above-mentioned, the judiciary is in fome measure next to nothing. There remains, therefore, only two; and as those have need of a regulating power to temper them, the part of the legiflative body compofed of the nobility is extremely proper for this very purpose. The body of the ncbility ought to bé here ditary. ditary. In the first place, it is fo in its own hereditary power might be tempted to pursue its own particular interefts, and forget thofe of the people, it is proper that, where they may reap a fingle advantage from being corrupted, as in the laws relating to the fupplies, they should have no other thare in the legislation, than the power of rejecting, and not of refolving. ffometimes have, and would moreover be al ways able to have, a fhare in both. It would be needlefs for the legislative body to continue always affembled. This would be troublefome to the reprefentatives, and moreover would cut out too much work for the executive power, fo as to take off its attention from executing, and oblige it to think only of defending its own prerogatives, and the right it has to execute. By the power of refolving, 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 refolution taken by another, which was the Again, were the legiflative body to be alpower of the tribunes at Rome. And though ways affenbled, it might happen to be kept the perfon poffeffed of the privilege of re-up only by filling the places of the deceafed jefting, may likewife have the right of ap-members with new reprefentatives; and in proving, yet this approbation paffes for no that cafe, if the legiflative body was once more than a declaration, that he intends to corrupted, the evil would be paft all remedy. and is derived from that very privilege. make no ufe of his privilege of rejecting, When different legiflative bodies fucceed one another, the people, who have a bad opinion The the of that which is actually fitting, may rea hands of a monarch: becaufe this branch of fonably entertain fome hopes of the next: government, which has always nced of ex-but were it to be always the fame body, the pedition #xecutive no longer expect any good from its laws; and of courfe they would either become defperate, or fall into a state of indolence. by many: whereas, whatever depends on the legislative lated by many than by a fingle person. power, is oftentimes better reguBut if there was no monarch, and the The legiflative body should not affemble was committed to a certain of itself. For a body is fuppofed to have no Lative body, there would be an end then of were it not to affemble unanimously, it would number of perfons felected from the legif- will but when it is affembled: and befides, Liberty; by reafon the two powers would be be impoffible to determine which was really united, as the fame perfons would actually the legislative body, the part affembled, or power H 6 the the other. And if it had a right to prorogue itfelf, it might happen never to be prorogued; which would be extremely dangerous in cafe it should ever attempt to encroach on the executive power. Befides, there are feafons, fome of which are more proper than others, for affembling the legiflative body: it is fit, therefore, that the executive power fhould regulate the time of convening as well as the duration of thofe affemblies, according to the circumstances and exigencies of ftate known to itself. Were the executive power not to have a right of putting a stop to the encroachments of the legislative body, the latter would become defpotic; for as it might arrogate to itfelf what authority it pleafed, it would foon deftroy all the other powers. But it is not proper, on the other hand, that the legislative power thould have a right to ftop the executive. For as the executive has its natural limits, it is ufclefs to confine it; befides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a ftop not only to the legislation, but likewife to the execution itfelf; which was attended with infinite mifchiefs. But if the legislative power, in a free government, ought to have no right to ftop 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 Cofmi and the Ephori gave no account of their administration. But whatever may be the iffue of that examination, the legislative body ought not to have a power of judging the perfon, nor of course the conduct, of him who is entrusted with the executive power. His perfon fhould be facred; because, as it is neceffary for the good of the ftate to prevent the legislative body from rendering themselves arbitrary, the moment he is accufed or tried, there is an end of liberty. In this cafe, the ftate would be no longer a monarchy, but a kind of republican, though not a free government. But as the perfon entrusted with the executive power cannot abufe it without bad counfellors, and fuch as hate the laws as minifters, though the laws favour them as fubjects; thefe men may be examined and punithed. An advantage which this government has over that of Gnidus, where the law allowed of no fuch thing as calling the Amymones 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 intereft of the party accufed. 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 meaneft fubject is poffeffed of, in a free ftate, of being tried by their peers. The nobility, for this reafon, ought not to be cited before the ordinary courts of judicature, but before that part of the legiflature which is compofed of their own body. It is poffible that the law, which is clearfighted in one fenfe, and blind in another, might in fome cafes be too fevere. But as we have already obferved, the national judges are no more than the mouth that pronounces the words of the law, mere paflive beings, incapable of moderating either its force or rigour. That part, therefore, of the legiflative body, which we have juft now observed to be a neceffary tribunal on another occafion,. is alfo a neceffary tribunal in this; it belongs to its fupreme authority to moderate the law in favour of the law itself, by mitigating the Sentence. ment has over most of the ancient republics, where there was this abufe, that the people were at the fame time both judge and accufer. The executive power, pursuant to what has been already faid, ought to have a fhare in the legislature, by the power of rejecting; otherwife it would foon be ftripped of its prerogative. But fhould the legifiative power ufurp a fhare of the executive, the latter would be equally undone. If the prince were to have a share in the legiflature, by the power of refolving, liberty would be loft. But as it is neceffary he fhould have a fhare in the legislature, for the fupport of his own prerogative, this fhare muft confift in the power of rejecting. The change of government at Rome was owing to this, that neither the fenate, who had one part of the executive power, nor the magiftrates, who were entrusted with the other, had the right of rejecting, which was entirely lodged in the people. Here then is the fundamental conftitution of the government we are treating of. The legislative body being compofed of two parts, one checks the other by the mutual privilege of rejecting: they are both checked by the executive power, as the executive is by the legislative. It might also happen, that a subject entrafted with the administration of public affairs, might infringe the rights of the people, and be guilty of crimes which the ordinary magiftrates either could not, or would not punish. But in general, the legislative power Cannot judge; and much lefs can it be a judge in this particular cafe, where it reprefents the parry concerned, which is the people. It can only therefore impeach: but before what court fhall it bring its impeachment? Muft it go and abafe itself before the ordinary tribunals, which are its inferiors, and being compofed moreover of men who are chofen from the people as well as itfelf, will naturally be fwayed by the authority of fo powerful an accufer? No: in order to preferve the dignity of the people, and the fecurity of the fubject, the legislative part As the executive power has no other part which reprefents the people must bring in its in the legislative, than the privilege of reject charge before the legislative part which re-ing, it can have no fhare in the public deprefents the nobility, who have neither the bates. It is not even neceffary that it should fame interefts nor the fame paffions. propose, because, as it may always disapprove of the refolutions that fhall be taken, it may Here is an advantage which this govern Thefe three powers fhould naturally form a state of repofe or inaction. But as there is a neceffity for movement in the courfe of human affairs, they are forced to move, but still to move in concert. likewife |