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[SECT. I.—: OF MIXED GOVERNMENTS IN GENERAL.] - Dugald Stewart, Lectures on Political Economy, vol. 2 
Lectures on Political Economy. Now first published. Vol. II. To which is Prefixed, Part Third of the Outlines of Moral Philosophy, edited by Sir William Hamilton (Edinburgh, Thomas Constable, 1856).
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OF MIXED GOVERNMENTS IN GENERAL.]
I before observed, [p. 353,] in stating the definitions of the Three Simple Forms of Government, that they do not apply literally to any establishments which have actually existed in the history of mankind, but are merely abstractions, formed by the speculative politician, in order to simplify the objects of his attention when employed in examining and comparing the constitutions of different states. The definition of Democracy (for example) admits no ground of distinction but personal qualities; and yet we may confidently affirm, that no state was ever to be found so popular as to exclude completely all regard to wealth, to birth, and to other adventitious sources of estimation. How difficult, or rather impossible, it is to eradicate this strong bias of our nature, appears remarkably from what Xenophon himself acknowledges concerning the character and manners of the Spartans, among whom he is obliged to confess (notwithstanding his strong partiality in their favour) that there was the same love of riches and of power which are complained of in other communities. There never surely was an Aristocracy so pure as to maintain such an exact equality among the members of the governing order, as might exclude entirely every tendency to Monarchy; nor was there ever an aristocracy in which superior talents and virtues might not procure to an individual of the lower order, a certain respect and influence in the society; and where the nominal rulers were not obliged, in some measure, to share their power, by courting the friendship of the popular favourites. I need scarcely add, that there never was a Despotism in which the sovereign was literally, with respect to his subjects, absolute and omnipotent, and in which he lay under no restraint whatever, either from established customs and manners, or from political and religious opinions, or from apprehensions concerning his own personal security.
Every government, therefore, which has existed in the history of mankind, is more or less a mixed government; nay, every government will be found, if attentively examined, to contain a mixture of all the three simple forms. But as it is impossible, in common discourse, to convey, in a few words, a distinct idea of a particular constitution, and equally impossible to have separate names for all the varieties of government that may be imagined, we are obliged to use the expressions Democracy, Aristocracy, and Monarchy, with a considerable degree of latitude; and to distinguish different constitutions from each other, by the names of these simple forms to which they approach most nearly. It is easy to see, however, that it is only a very vague and imperfect notion of a constitution which we can form from merely hearing its name. We call, for example, the Athenian Government a Democracy, and perhaps there never was any which approached more nearly to the theory. “The people had both the executive and legislative power committed to them; they voted in a collective body in every law, without any limitation of property, without any distinction of rank; without control from any magistracy or senate; and the meanest among them might be raised, by the votes of his fellow-citizens, to the command of armies, or the dignity of ambassador.”* Yet, in Athens, as I already observed, [p. 369, seq.,] from the battle of Marathon, the government was carried on by a series of ambitious and intriguing men, who possessed themselves of the whole power of the state, so that the government, though nominally Democracy, was in fact a Monarchy. Thucydides affirms, in direct terms, that, under Pericles, it differed from monarchy only in name. In Athens, too, adventitious sources of distinction were admitted, as well as in other constitutions; and we are even assured by Xenophon, that those in general were chosen to command who could expend most in banquets and pageantry. Nor is this all; the freemen at Athens bore but a small proportion to the slaves, and these surely ought to be considered as a part of the community. In this boasted constitution, therefore, a great majority of the people not only had no share in the legislature, but were deprived of their rights as men. And, consequently, however jealous the free citizens might be of their own rights, their independent spirit did not arise from the avowed principle of a democracy, a regard to justice, and a sense of that equality of rights which republican writers profess to consider as the common inheritance of mankind.
The names of the other simple forms of government, when applied to particular constitutions, are used with the same latitude.
There is another circumstance which deserves our particular attention in studying this branch of politics. The nature and spirit of a government, as it is actually exercised at a particular period, cannot always be collected (perhaps it can seldom be collected) from an examination of written laws, or of the established forms of a constitution. These may continue the same for a long period of ages, while the government may be modified in its exercise, to a great extent, by gradual and indescribable alterations in the ideas, manners, and character of the people. The truth is, that besides the established laws of a country, the political state of the people is affected by an infinite variety of circumstances, of which no words can convey a conception, and which must be collected from actual and personal observation. Even in this way, it is not easy to collect them. On the contrary, nothing is more difficult than for a person who has received his education in one country, to enter into all the associations which influence the mind of a subject of a different government, or to ascertain, especially on political subjects, all the combinations of ideas he annexes to his words. One striking proof of this is the imperfect and erroneous notions which the ablest and best instructed French writers have formed of the constitution of England. Some of the articles of the Encyclopédie upon this subject, contain mistakes which must appear ludicrous to the most imperfectly informed inhabitants of this country.1 These mistakes have undoubtedly arisen, in part, from the theoretical views of the constitution which have been given by some of our own writers, and which by no means apply to the government as it is carried on at present, and partly from the different views which a Frenchman and an Englishman annex to the corresponding words in their languages. Thus, a person who conceives that the English word commoner is synonymous with the French word roturier, must necessarily have a very false notion of the constituent members of our House of Commons. A similar mistake is committed by those writers who imagine that the French and the English annex the same idea to the word gentleman. In the former country, it was a maxim, that every French Gentleman was a Nobleman, but that every French Nobleman was not a Gentleman.* A person to whom nobility was granted by the sovereign, or who was appointed to a charge conferring nobility, the transmissibility of which was suspended till it vested in his second descendant, was noble; but neither he nor his son was a gentleman: the grandson was the first gentleman of the family. In England, on the other hand, as no gentleman is a nobleman unless he is a peer of Parliament, the word nobility expresses an order in the state specifically and highly elevated, both by law and by public opinion, above the order of gentry. Various other illustrations of the same thing might easily be offered; but the instances we have already produced are sufficient to shew the extreme difficulty of studying the political history of mankind, and of drawing inferences, with justness, from the supposed experience of one country for regulating the conduct of another. At the same time, it is proper to observe, before I conclude this head, that the remarks which have been made do not apply to the constitutions of the ancient states, with nearly the same force with which they apply to the great monarchies of modern Europe, which are incomparably more complicated in their actual structure, in consequence of that infinite diversity of ranks which has taken rise from the feudal ideas and institutions.
From what has been now said, it sufficiently appears, that where the speculative plan of a government, as expressed in its laws, approaches to the definition of one of the simple forms, there may, in fact, be a mixture in the exercise of the government, in consequence of the ideas, manners, and character of the people. What political writers, indeed, commonly call Mixed Governments, are constitutions which professedly share, by their fundamental principles, the supreme or legislative power among different orders of the community; such, for example, as the constitutions of those petty states in different parts of Europe, which divide this power between the collective body of the people and a privileged order; and the constitution of our own country, so strikingly distinguished from all others, by the systematic rigour with which it requires, in every legal enactment, the co-operation of all its three branches. Without, however, attending to the various incidental circumstances which may contribute to modify or restrain the administration of the government, we shall have a very imperfect and erroneous notion of the history of mankind.
Of the truth of this remark, no better illustration can be mentioned than the contrast presented by what are called pure Monarchies in this part of the world, to those despotical establishments which have been already under our review. In the former, although the same language be frequently applied to them, and to the absolute monarchies of the East, the power of the sovereign is, in truth, very effectually counteracted and restrained by a variety of circumstances,—by the independent spirit which is kept alive in Europe by the free states it contains, and which, by means of the press, extends its influence even to the subjects of absolute governments, and, perhaps, in some degree, by that regular subordination of ranks which took its rise from the feudal institutions. It is this particular species of government, unknown to the politicians of antiquity, that Montesquieu has in his eye, when he speaks of monarchy as distinguished from despotism. “A monarchical government supposes,” says he, “pre-eminences, ranks, and an hereditary nobility.”*
The origin of that particular species of hereditary nobility which exists in the monarchies of modern Europe, was formerly explained. In its first form, undoubtedly, it was an institution oppressive and vexatious to the mass of the people; but a variety of circumstances have, in the progress of society, rendered it the mean of tempering the rigour of Monarchical government, and of diffusing refinement and civilisation among the inferior orders. The different ranks, too, in the state, have (more particularly in those countries where commerce is protected and honoured) been gradually blended together; and those distinctions which were formerly so wide and revolting, have been so softened, that it is often difficult to say where one rank ends and another begins. Other scales of estimation, also, beside birth, come in for their share in determining a man’s rank:—wealth (for example) or official dignity, not to mention talents and virtue; and all these circumstances are combined together in adjusting the relative pretensions of individuals. Hence, in the monarchies of modern Europe, there is an infinite number of gradations of rank, from the lowest order of the community to the sovereign; the whole fabric of society bearing a resemblance (according to the happy allusion of Sir William Temple) to a pyramid, of which the undistinguished multitude forms the basis, and the prince the apex.
In such a state of society, an individual is trained from his infancy to acknowledge the influence of adventitious distinctions,—to consider every man as entitled to the rank which he inherits, or which is connected with his official situation,—to maintain with firmness that which belongs to himself, and to look forward to an advancement of it, as the great and ultimate object of his ambition. This regard to adventitious circumstances as the principal ground of distinction, is, I apprehend, what Montesquieu means by the word honour, when he says that it is the principle of a monarchy. “It is the nature of honour,” says he, “to aspire to preferments and distinguishing titles.”* It is evident that by the word virtue, when applied to express the principle of a democracy, he means the love of equality, or a disposition to class men according to their personal qualities; and, as he always contrasts the principles of Democracy and Monarchy, it would seem that the apprehended that the latter form of government is chiefly supported by a regard to those distinctions which birth and fortune, and official dignities, create. In what manner this principle influences the conduct in a monarchy, and how it contributes to distinguish it from a despotism, he has explained in Book III. chapters vii. viii.1
It was in consequence of such ideas and sentiments, arising from a regular subordination of ranks, aided by established opinions and customs, and by the fire which the people all over Europe had caught from the free states in their neighbourhood, that the power of the sovereign in France was limited under the monarchical government. In the language of the French law, he was the vicegerent of God, and accountable to Him alone for the exercise of his authority; nor was there any constitutional check on his authority of much importance, for the registering of his Edicts, in order to give them the force of laws, had become, in a great measure, matter of form, and was but a poor relic of the ancient power of the States, by which, in former times, the regal authority was so effectually restrained. The great check, in fact, upon government in that country, arose from established opinions and customs, and from the character and manners of the people.
I cannot help taking this opportunity of remarking, that Montesquieu was led by an excusable partiality, perhaps, in favour of the government under which he had been educated, and probably in some degree also by prudential considerations, to insist too much on the distinction between Monarchy and Despotism. If, indeed, by monarchy he had meant such a government as the English, in which the authority of the king is subjected to constitutional checks, the distinction would have been as complete and as essential as between any two forms of government whatever. But the monarchy which he describes is restrained and moderated only by the character and circumstances of the people among whom it is established; in other words, a government which—although, in its ordinary exercise, it may, from prudential considerations, respect the claims and the happiness of such orders of its subjects as can combine together in opposition to its oppressions—acknowledges no legal or constitutional restraints, and wherever it can safely exert its authority, exhibits all the spirit of despotism. In reading this part of his writings, indeed, it is difficult to know when to praise or to blame: for he seems to have been actuated by a variety of motives in his reflections; sometimes by a sincere desire to justify that political order to which he had been accustomed; sometimes by a wish to strengthen those opinions and prejudices, which, however ineffectual to accomplish uniformly the purposes of a good government, had yet been found by experience to be, in ordinary cases, of material advantage to the public; and sometimes (one would imagine from the ironical, though apparently dispassionate, account he gives of the effects of the actual establishment) by a secret design to suggest indirectly to his countrymen the superior excellence of a monarchy subjected, like that of England, to constitutional limitations. While we regret, therefore, the ambiguous and enigmatical style in which this great man occasionally expresses himself, we ought at the same time to recollect, that at the period when he wrote, it was necessary for an author who was really anxious to be useful to his country, to draw occasionally a slight veil over the truth; or at least, to content himself with stating premises to his readers, leaving it to themselves to draw the inferences. I mention these circumstances, partly because they appear to me to furnish a key to many apparent inconsistencies in the Spirit of Laws, and partly from a desire of vindicating the character of Montesquieu against the censures which it has incurred from some authors in our own country, who, enjoying the unrestrained liberty of the press, and supported in their sentiments by public opinion, do not make proper allowances for their predecessors in the same line of study, who did not possess the same advantages.
The following quotations will serve, at once, to explain my meaning in the foregoing remarks, and to shew that they are not without foundation.
It may be proper to observe, before we proceed, that as Turkey is Montesquieu’s model of Despotism, so France is the country which he has in his eye when he speaks of the spirit of Monarchy.
“In a monarchical government, intermediate bodies of men between the king and the lower orders of the people, the jurisdiction of the clergy, luxury, the venality of offices, the multiplicity of laws, appear to be indispensable.”*
“The state exists independently of the love of one’s country, of the desire of true glory, of self-denial, and of a disinterested spirit. The laws supply the place of all these virtues.”† He adds, “that idleness, meanness, an aversion for the truth, flattery, treason, perfidy, a contempt of the duties which belong to the citizen, a dread of the virtues of the prince, an interested satisfaction in his weaknesses, a delight in turning virtue into ridicule, form the character of the greater number of courtiers. Now,” says he, “it is difficult to suppose that the majority of the leading men in the state should be dishonest, and their inferiors men of virtue. And indeed, Cardinal Richelieu insinuates in his Political Testament, that if among the people an individual should be found who is so unfortunate as to be honest, the prince should be cautious how he avails himself of his services; so true it is, that virtue is not the principle of this species of government.”*
Montesquieu farther remarks, that “in place of virtue, monarchy has for its principle honour, or in other words, the prejudices arising from the education and the condition of each individual. . . . Thus,” says he, “in a well-regulated monarchy, you will everywhere meet with men who approach to the character of good citizens: but good men will occur very rarely; for to be good one must have the disposition to be so.”† He adds, that “philosophically speaking, it is a false honour which conducts all the parts of which the state is composed.”‡ In another part of this work, he points out the education which is fitted for a monarchy. He observes, that “the virtues which there appear, always result more from a sense of what we owe to ourselves, than of what we owe to others; that the actions of men are less valued for their rectitude than for their splendour; that honour is either the judge who renders them lawful, or the sophist who pleads their apology; that it sanctions gallantry, intrigue, flattery; that it admits of a certain species of openness, but despises that of the people which is founded on truth and simplicity:—and above all, that it exalts that politeness which originates from pride and the love of distinction. . . . To communicate all these qualities, is the great object of education in forming the man of honour, (pour faire ce qu’on appele l’honnête homme,) who has all the virtues which are necessary under this form of government.”§
In the last place, Montesquieu remarks, that “monarchies encourage, in the other sex, a licentiousness of morals.”∥
For supporting that honour which is the principle of this government, he recommends the preservation of all those hereditary privileges which have arisen from the Feudal system. He does not even leave the people the right of granting their consent to the taxes they are to pay; he only recommends to those who are in authority, “not to make their burdens heavier than what is necessary.”*
In these passages, as well as in various others, there is unquestionably a mixture of delicate satire, which has been often overlooked by Montesquieu’s commentators. He seems indeed to have dreaded nothing so much as a hasty perusal of his political speculations. “I entreat,” says he in his Preface, “one favour of my readers, which I fear will not be granted me;—that they may not judge by a few hours’ reading of the labour of twenty years.” Voltaire, too, although he has on various occasions expressed himself sarcastically with respect to this great man, particularly on account of the inaccuracy of his facts and quotations, has, in one instance, remarked in strong and beautiful terms that depth of reflection which he often conceals from common observers by a style epigrammatic and oracular, and adorned with the delicate lights and graces which so frequently accompany superficial attainments:—“That masculine and rapid genius, which dived to the bottom of every subject, while it seemed only to glance upon the surface.”1
From what has been already said of the Athenian government, considered as a model of Democracy, and of the French Government as a model of Monarchy, it appears how difficult it is to judge of the political state of a nation from an examination of their written laws; and that a constitution approaching in theory to one of the simple forms may, in fact, be a mixed constitution in its exercise. We now proceed to make some remarks on governments, which are professedly mixed, and which, by the plan of their constitution, admit different orders of the community to a share in the legislative authority.
That those governments which approach nearly to the simple forms, are all attended with inconvenience, and that the business of political wisdom lies in properly combining them together, was remarked by some of the great writers of antiquity. On this subject they have left us many valuable observations, although their limited acquaintance with the history of mankind necessarily rendered their views of the subject, in many respects, partial and erroneous. The history of modern Europe has furnished us with many important experiments and facts unknown to them, and has pointed out to us clearly a variety of their mistakes. But still our stock of facts is small when compared with the boundless field of speculation which the theory of government presents to the mind; and therefore it is highly probable that many of the maxims which are now current among our most enlightened politicians, will be treated with ridicule by our wiser posterity. Nor is it. going too far to say with Mr. Hume, that “the world is too young as yet to entitle us to form political predictions with confidence from the history of past ages.”*
“It is customary among writers to establish three sorts of government,” says Polybius, “Kingly governments, Aristocracy, and Democracy; upon which one may very properly ask them, whether they mean to state these as the only forms of government, or as the best; for in both cases they seem to be in an error, since it is manifest that the best form of government is that which is compounded of all three. This,” says he, “is founded not only on reason, but in experience; Lycurgus having set the example of this form of government in the institution of the Lacedemonian Commonwealth.”
“This legislator then,” Polybius continues, “having considered with himself, that, according to the necessary and established course of all things, the several accidents and changes that have now been mentioned were inevitable, formed this conclusion; that every simple and single kind of government was insecure, on account of its proneness to degenerate into that more vicious kind, which was most nearly allied to it by nature. For as rust is the inbred bane of iron, and worms of wood; and as these substances, even though they should escape all external violence, at last fall a prey to the evils that are, as it were, congenital with them; in the same manner likewise, every single kind of government breeds within itself some certain kind of vice, which is attached by nature to its very form, and which soon causes its destruction. Thus Royalty degenerates into tyranny; Aristocracy into oligarchy; and Democracy into savage violence. Nor is it possible, as we have already shewn, but that, in the course of time, these conversions must be thus produced. Lycurgus, therefore, foreseeing this necessity, instead of adopting any one of the single forms of government, collected what was excellent in them all, and so joined together the principles that were peculiar to each several form, that no one of them might be extended beyond proper bounds, and slide into the evil to which it was inclined by nature. But that each separate power, being still counteracted by the rest, might be retained in due position, and the whole government be preserved in equal balance, as a vessel when impelled to either side by the wind, is kept steady by a contrary force. Thus, the dread of the people, to whom a certain share was allotted in the government, restrained the excesses and the abuse of royalty. The people, on the other hand, were retained in a due submission to the kings, by their apprehension of the power of the senate. For the members of the senate being all selected from the best among the citizens, were always ready to support the cause of justice; and by throwing their own weight into the scale when either was in danger of being oppressed by the other, to give such strength to the weakest party as the constitution of the state required. By these means the Lacedemonians preserved their liberty entire for a much longer time than other people.”1
The same author remarks, that “all the three forms were blended in the Roman Commonwealth, in such a manner as to render it impossible even for a Roman citizen to assert positively whether the Government was on the whole Aristocratical, Democratical, or Monarchical; for when we attend to the power of the consuls, the government plainly appears to approach to a monarchical description; when we attend to the senate, it seems to be an Aristocracy; and when to the people, a Democracy.”
This observation of Polybius with respect to the state of the Roman Government, at the time when he had an opportunity of studying it, has always appeared to me to reflect peculiar honour on his penetration, and that on account of the very circumstance which has led Grotius to criticise it. “But neither,” says Grotius, “in this instance, do I follow the authority of Polybius, who refers the Roman Commonwealth to the class of mixed governments; for at the time of which Polybius speaks, it was purely a popular government, if, abstracting from its actual administration, we attend to the constitutional claims of the people.”1
Among the numerous commentators of Grotius, there is one who has very modestly suggested the true answer to this objection.
“Auctor inter eos qui circa formas imperii falluntur, etiam Polybium refert, qui Rempublicam Romanam suis temporibus mixtam fuisse dicent. At bene notandum, Polybium non loqui de mixtura status, sed administrationis; forma enim reipublicæ erat mere popularis, sed administratio divisa fuit inter Consules, Senatum et Populum.”* It is here very justly observed, that Polybius is not, in the foregoing passage, speaking of the theory of the Roman Constitution, (about which there could be no diversity of opinion,) but of what common observers (as I formerly remarked [supra, p. 404,]) are so apt to overlook,—the actual state of that constitution, modified as it was by time, and chance, and experience. That he was perfectly aware, too, of this distinction himself, appears from the following passage, (immediately following that already quoted concerning the constitution of Sparta,) in which, with admirable sagacity, he contrasts the Roman Government, which was the gradual result of circumstances and emergencies, with that of the Lacedemonians, which he considered (whether justly or not is a different question) as planned by the foresight and sagacity of Lycurgus. “And thus it was that Lycurgus, having been taught by reason to foresee a certain train of causes and events, was able to give a lasting strength to his establishments. The Romans, on the other hand, though they arrived, indeed, at the same perfection in the constitution of their state, were not led to it by foresight or by reason. But, during the course of many contests and disorders, in which they were engaged, having been careful always to adopt, upon every change, such improvements as the occasion itself suggested to them, they at last obtained the same end likewise, as that which Lycurgus had proposed, and completed the most beautiful frame of government of all that are in our times known.”1
In the writings of Cicero, various passages occur to the same purpose with that which I have now quoted from Polybius. “Statuo,” says he in one of his fragments,2 “esse optime constitutam rempublicam quo ex tribus generibus illis, Regali, Optimo, et Populari, est modice confusa.” And in another passage he has endeavoured to illustrate this observation by comparing the political order which results from such a combination of powers, to the harmony resulting from the different parts in a musical concert. “Ut in fidibus ac tibiis, atque cantu ipso ac vocibus, concentus est quidam tenendus ex distinctis sonis, quem immutatum ac discrepantem aures eruditæ ferre non possunt, isque concentus ex dissimillimarum vocum moderatione concors tamen efficitur et congruens: sic ex summis et infimis et mediis interjectis ordinibus, ut sonis, moderata ratione civitas consensu dissimillimorum concinit; et quæ harmonia a musicis dicitur in cantu, ea est in civitate concordia; arctissimum atque optimum, omni in republica, vinculum incolumitatis; quæ sine justitia nullo pacto esse potest.”*
To these quotations I shall only add the well-known passage in Tacitus, in which, though he expresses his doubts concerning the possibility of reducing the theory to practice, he admits the advantages which a mixed government, formed by a combination of the three simple forms, appears to possess in speculation. “Cunctas nationes et urbes, populus, aut primores, aut singuli regunt. Delecta ex his et consociata reipublicæ forma, laudari facilius quam evenire; vel, si evenit, haud diuturna esse potest.”1
These passages may at first view appear somewhat extraordinary, when we consider that the English Constitution affords the first instance in the history of mankind in which the theory delineated by the ancient philosophers has been realized with success. But the truth is, that however difficult it may be to find such a combination of circumstances, as is favourable to the establishment of such a government, the advantages likely to result from it, supposing it to exist, are abundantly obvious. Indeed, the general idea of it is suggested to us by the principles of human nature, and the common course of human affairs.
I before took notice [supra, p. 402] of that natural aristocracy which we find in every community, arising from the original differences among men, in respect of intellectual and moral qualities. That these were intended to lay a foundation for civil government, no man can doubt who does not reject altogether the inferences which are drawn from the appearances of design in the human constitution.
As the possession of power, however, is to the best of men a source of corruption, the general utility requires that some checks should be imposed on the pretensions of the aristocracy; and the only effectual checks may be easily perceived to be, a popular assembly, on the one hand, to secure the enactment of equal laws, and a single magistrate, on the other, possessing the sole executive power, to prevent the competitions and rivalships among the order of nobility.
The fact which I have now stated with respect to the existence of a natural Aristocracy in every community, as well as the advantages to be derived from it, if properly restrained and regulated, and the mischiefs to be apprehended from it, on a contrary supposition, are eloquently described in the following passage from Lord Bolingbroke:—“It seems to me, that, in order to sustain the moral system of the universe, at a certain point, far below that of ideal perfection, (for we are made capable of conceiving what we are not capable of attaining,) it has pleased the author of Nature to mingle, from time to time, among the societies of men, a few, and but a few, of those on whom He has been graciously pleased to confer a larger portion of the ethereal spirit than, in the ordinary course of His providence, He bestows on the sons of men. These are they who engross almost the whole reason of the species; who are born to direct, to guide, and to preserve. . . . If they retire from the world, their splendour accompanies them, and enlightens even the darkness of their retreat. If they take a part in public life, the effect is never indifferent. They either appear the instruments of Divine vengeance, and their course through the world is marked by desolation and oppression, by poverty and servitude; or they are the guardian angels of the country they inhabit, studious to avert the most distant evil, and to procure peace and plenty, and the greatest of human blessings,—Liberty.”*
Since, then, there is in every society a natural aristocracy, arising partly from original inequalities among men, and partly from the influence of birth and fortune, in what manner shall the legislator avail himself of the assistance of those who compose it, and, at the same time, guard against the dangers to be apprehended from their uncontrolled authority? The answer seems obvious. Form that order of men who, from their situation in life, are most likely to comprehend the greatest number of individuals of this description, into a senate possessing no share of the executive power, and control their legislative proceedings by the executive magistrate, on the one hand, and by an assembly of popular representatives on the other.
“The people without the senate,” says Harrington, “would want wisdom; the senate without the people would want honesty.”*
In stating these general principles, I would not be understood to insinuate, that it is possible to devise a plan of government universally applicable to all the situations of mankind. On the contrary, nothing can be more certain or more evident than this,—that as the form of a government has an influence on the character of the people, so there is a certain national character necessary to support the government, and which, while it continues the same, will render all violent innovations impracticable. Even where a Despotism is established, the situation of the people can be improved only-by very slow degrees; and any violent attempt to alter it has, in general, produced only a change of masters, after a short paroxysm of bloodshed and anarchy.
Neither would I wish it to be understood, that governments have, in general, taken their rise from political wisdom. On the contrary, almost every one of which we have any account has been the gradual result of time and experience, of circumstances and emergencies. This we may affirm to have been universally the case with those which have taken their rise in the rude periods of society; for surely no person, without extreme credulity, can listen to the accounts in ancient historians, of those fabulous legislators, who, by the force of eloquence, or the reputation of wisdom, assembled together a set of savages, who formerly wandered in the woods, convinced them of the utility of government, and persuaded them to submit to any regulations they should think proper to prescribe. The case is considerably different in a more enlightened age. A statesman may avail himself of the power he possesses in introducing new institutions which, in process of time, may produce important effects on the character of a nation; or a people who have been trained to political order under one form of government, may, after a violent revolution, choose (like the American States) to introduce among themselves a new set of usages and institutions. But even in such instances, there are certain limits within which innovations are practicable. They must have a certain degree of reference to the character and manners of the people, otherwise it is impossible that they should permanently maintain the good order or secure the happiness of the community.
Of the necessity of accommodating every new institution to the character of those for whom it is intended, Bacon has taken notice in the First Book, De Augmentis Scientiarum, in which he also remarks the danger which literary men run of overlooking this consideration, from the familiar acquaintance they acquire in the course of their studies with the ideas and sentiments of better ages. He says:—
“Solon interrogatus, an optimas civibus suis dedisset Leges? ‘Optimas,’ inquit, ‘ex illis, quas ipsi voluissent accipere.’ Ita Plato, videns corruptiores suorum civium mores quam ut ipse ferre posset, ab omni publico munere abstinuit, dicens: ‘Sic cum Patria agendum esse ut cum Parentibus; hoc est, suasu, non violentia, obtestando, non contestando.’ Atque hoc ipsum cavet ille, qui a consiliis Cæsari: ‘Non,’ inquit, ‘ad vetera instituta revocans, quæ jampridem corruptis moribus ludibrio sunt.’ Cicero etiam hujus erroris arguit Catonem secundum, Attico suo scribens; ‘Cato optime sentit, sed nocet interdum Reipublicæ; loquitur enim, tanquam in Republica Platonis, non tanquam in fæce Romuli.’ ”*
We may observe, farther, as a proof of the impossibility of establishing general political rules, which are to apply universally to mankind, that the institutions which it is expedient for a state to adopt, are often determined by circumstances external to itself; by the relation, for example, in which it stands to the states in its neighbourhood.
Thus when Charles the Seventh of France, under the pretence of keeping always on foot a force sufficient to defend the kingdom against the sudden invasions of the English, established the first standing army known in Europe,1 self-preservation made it necessary for the other nations of the Continent to follow his example; and in this manner a change which essentially affected their internal policy was recommended to them, or rather forced upon them, by the measures of a foreign prince.
The extent of territory too, and the amount of population which a state may possess with advantage, (in either of which a change will require a correspondent change in the political institutions,) may frequently depend on circumstances external to itself. In the case of states placed in the neighbourhood of each other, a certain equality is necessary to procure to each that degree of consideration which may secure its independence. In the opinions of many politicians, the happiest situation, and the most favourable to the human character, in which mankind have ever been placed, is where they have been formed into small and independent Republics; but in modern Europe, the Republics of the same extent, with those of ancient Greece, appear so insignificant when compared with the extensive monarchies with which they are surrounded, that they resemble (to borrow an allusion of Dr. Ferguson’s) the shrubs in a wood which are choked by the trees under whose shadow they grow.* The disproportion is so great as to frustrate the advantages with which they would otherwise be attended. The same author remarks, that “when the kingdoms of Spain were united; when the great fiefs in France were annexed to the Crown, it was no longer expedient for the nations of Great Britain to continue disjoined.”† Abstracting entirely from their relative interests, or the comparative advantages which they derived from the union of the crowns, the alterations in the state of the great continental powers rendered that event equally necessary to the safety of both.
These miscellaneous remarks may, I hope, be of some use as a supplement to the theoretical views of government given by Montesquieu and his commentators.
I now proceed to make a few observations on the peculiar advantages of that combination of political powers which takes place in our own constitution.
Before, however, I enter on this subject, it may be proper for me to explain the idea I annex to the word Constitution, a word often used in a very vague and inaccurate manner, and which has sometimes been defined in such a way as to convey a false notion of the origin of our government. Such an explanation is the more necessary, as in consequence of an erroneous conception of the true import of this expression, some foreign politicians have been led to assert, that in England there is no constitution at all; inasmuch as there are no fundamental laws of superior authority to the Acts of the existing legislature. The English Government (it is said) has been the gradual offspring of circumstances and events, and its different parts arose at different times;—some of them from acts of the legislature prompted by emergencies, and some of them from long established customs or usages, of which it is not always possible to trace the origin, so that no part of it is sanctioned by an authority paramount to that which gives force to every other law by which we are governed. It is pretended, therefore, that there are no fundamental or essential principles in our government, which fix a limit to the possibility of legislative encroachment, and to which an appeal could be made, if a particular law should appear to be hostile to the rights and liberties of the people. But surely the conclusion in this argument does not follow from the premises. For do we not every day speak of laws being constitutional or unconstitutional; and do not these words convey to men of plain understanding a very distinct and intelligible meaning, a meaning which no person can pretend to misapprehend, who is not disposed to cavil about expressions?
It appears to me, that what we call the constitution differs from our other laws, not in its origin, but in the importance of the subject to which it refers, and in the systematical connexion of its different principles. It may, I think, be defined to be that form of government, and that mode of administrating it, which is agreeable to the general spirit and tendency of our established laws and usages.
According to this view of the subject, I apprehend that the constitution, taken as a whole, ought to modify every new institution which is introduced, so that it may accord with its general spirit; although every part of this constitution taken separately, arose itself from no higher authority than the common acts of our present legislature.
To illustrate this proposition it may be proper to remark, that although the Constitution was the gradual result of circumstances which may be regarded as accidental and irregular, yet that the very mode of its formation necessarily produced a certain consistence and analogy in its different parts, so as to give to the whole a sort of systematical appearance. For unless every new institution which was successively introduced, had possessed a certain reference or affinity to the laws and usages existing before, it could not possibly have been permanent in its operation. Wherever a Constitution has existed for ages, and men have enjoyed tranquillity under it, it is a proof that its great and fundamental principles are all animated by the same congenial spirit. In such a constitution, when any law contrary to the spirit of the rest is occasionally introduced, it soon falls into desuetude and oblivion; while those which accord in their general character and tendency, acquire additional stability from the influence of time, and from the mutual support which they lend to each other. Of such a law we may say with propriety that it is unconstitutional, not because we dispute the authority from which it proceeds, but because it is contrary to the spirit and analogy of the laws which we have been accustomed to obey.
Something similar to this obtains with respect to languages. These, as well as governments, are the gradual result of time and experience, and not of philosophical speculation; yet every language, in process of time, acquires a great degree of systematical beauty. When a new word, or a new combination of words, is introduced, it takes its rise from the same origin with every other expression which the language contains;—the desire of an individual to communicate his own thoughts or feelings to others. But this consideration alone is not sufficient to justify the use of it. Before it is allowed by good writers or speakers to incorporate itself with those words which have the sanction of time in their favour, it must be shewn that it is not disagreeable to the general analogy of the language, otherwise it is soon laid aside as an innovation, revolting, anomalous, and ungrammatical. It is much in the same manner that we come to apply the epithet unconstitutional to a law.
The zeal, therefore, which genuine patriots have always shewn for the maintenance of the Constitution, so far from being unreasonable, will be most strongly felt by the prudent and intelligent, because such men know that political wisdom is much more the result of experience than of speculation; and that when a Constitution has been matured by such slow steps as ours has been, in consequence of the struggles of able and enlightened individuals, jealous of their liberties, and anxious to preserve them, it may be considered as the result of the accumulated experience and wisdom of ages; possessing on that very account the strongest of all possible recommendations and sanctions, an experimental proof of its excellence, of its fitness to perpetuate itself, and to promote the happiness of those who live under it.
[* ] [Hume’s Essays, Vol. I.—Essay, Of some remarkable Customs.]
[1 ] The following passage is to be found in Encyclopédie Méthodique, Commerce, Tom. III. Art. Noblesse:—“En Angleterre la loi des successions attribue aux aînés dans les familles nobles les biens immeubles à l’exclusion des cadets qui n’y ont aucune part. Ces cadets sans bien cherchent à réparer leurs pertes dans l’exercice du négoce, et c’est pour eux un moyen presque sûr de s’enrichir. Devenus riches, ils quittent la profession, ou même sans la quitter, leurs enfans rentrent dans tous les droits de la noblesse de leur famille; leurs aînés prennent le titre de Milord si leur naissance et la possession d’une terre pairie le leur permettent. Il faut néanmoins remarquer, que quelque fière que soit la noblesse Angloise, lorsque les nobles entrent en apprentissage, qui selon le réglement doit être de septs ans entiers, jamais ils ne se couvrent devant leur Maîtres, leur parlant et travaillant tête nue, quoique souvent le maître soit roturier, et de race marchande, et que les apprentis soient de la première noblesse.”
[* ] [And—that “the King can create a Nobleman, but is unable to make a Gentleman;” i.e., a man of family.]
[* ] [Esprit, &c., Liv. III. chap. vii.]
[* ] [Ibid.]
[1 ] See also Book II. chap. iv., and Book IV. chap. ii.
[* ] [Esprit, &c., Liv. III. chap. iv.]
[† ] [Ibid. chap. v.]
[* ] [Ibid.]
[† ] [Ibid. chap. vi.]
[‡ ] [Ibid. chap. vii.]
[§ ] [Ibid. Liv. IV. chap. ii.]
[∥ ] [Ibid.]
[* ] [Ibid. Liv. V. chap. ix.]
[1 ] “Ce génie male et rapide qui approfondit tout en paroissant tout effleurer.”—[Discours à l’Académie Française, (Œuvres, Tome VIII. p. 661, edit. 1817.)]
[* ] [Essays, Vol. I.—Essay, Of Civil Liberty; apparently quoted from memory.]
[1 ] Hampton’s Polybius, Vol. III. p. 19.—[In the original History, Book VI. chapter ix., seq.]
[1 ] “Sed nec Polybii hic utor auctoritate, qui ad mixtum genus reipublicæ refert Romanam rempublicam, quæ illo tempore, si non actiones ipsas, sed jus agendi respicimus, mere fuit popularis: Nam et senatus auctoritatis, quam ad optimatum regimen refert, et consulum, quos quasi reges fuisse vult, subdita erat populo. Idem de aliorum politica scribentium sententiis dictum volo, qui magis externam speciem et quotidianam administrationem quam jus ipsum summi imperii spectare, congruens ducunt suo instituto.”—[De Jure Belli, &c.,] Lib. I. cap. iii. [§ 19.]
[* ] [See the Commentary of Henry de Cocceii, on Lib. I. c. iii. § 19.]
[1 ] “On a injustement accusé les ancions de n’avoir pas eu l’idée d’une monarchie temporée.
“Aristotle en a posé l’équilibre sur la distinction des trois pouvoirs, et Lycurgue en avoit fait la base du gouvernement de Lacedomène.”—See Barthélemi, Voyages d’Anacharsis.
[2 ]De Republica, [Lib. II.]
[* ] [Ibid.]
[1 ]Annales, Lib. IV. [cap. xxxiii.]
[* ] [Letter on the Spirit of Patriotism, Works, Vol. IV. pp. 187, 190.]
[* ] [Oceana.]
[* ] [Works, Vol. VIII. p. 22, Montagu’s edition.]
[1 ] ad 1445. See Robertson, Vol. I. p. 94, [Dublin edit. 1770. Charles V., Preliminary View of the State of Europe, Sect. ii.]
[* ] [Essay on Civil Society, Part I. Sect. ix. p. 100, edit. 1793.]
[† ] [Ibid. p. 99.]