Front Page Titles (by Subject) SECTION 13: Laws were made to direct and instruct Magistrates, and, if they will not be directed, to restrain them. - Discourses Concerning Government
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SECTION 13: Laws were made to direct and instruct Magistrates, and, if they will not be directed, to restrain them. - Algernon Sidney, Discourses Concerning Government 
Discourses Concerning Government, ed. Thomas G. West (Indianapolis: Liberty Fund 1996).
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Laws were made to direct and instruct Magistrates, and, if they will not be directed, to restrain them.
I know not who they are that our author introduces to say, that the first invention of laws was to bridle or moderate the overgreat power of kings;1 and unless they give some better proof of their judgment in other things, shall little esteem them. They should have considered, that there are laws in many places where there are no kings; that there were laws in many before there were kings, as in Israel the law was given three hundred years before they had any; but most especially, that as no man can be a rightful king except by law, nor have any just power but from the law, if that power be found to be overgreat, the law that gave it must have been before that which was to moderate or restrain it; for that could not be moderated which was not in being. Leaving therefore our author to fight with these adversaries if he please when he finds them, I shall proceed to examine his own positions. The truth is, says he, the original of laws was for the keeping of the multitude in order. Popular estates could not subsist at all without laws, whereas kingdoms were govern’d many ages without them. The people of Athens as soon as they gave over kings, were forced to give power to Draco first, then to Solon to make them laws. If we will believe him therefore, wheresoever there is a king, or a man who by having power in his hands, is in the place of a king, there is no need of law. He takes them all to be so wise, just, and good, that they are laws to themselves, leges viventes.2 This was certainly verified by the whole succession of the Caesars, the ten last kings of Pharamond’s race, all the successors of Charles the Great, and others that I am not willing to name; but referring myself to history, I desire all reasonable men to consider, whether the piety and tender care that was natural to Caligula, Nero or Domitian, was such a security to the nations that lived under them, as without law to be sufficient for their preservation: for if the contrary appear to be true, and that their government was a perpetual exercise of rage, malice and madness, by which the worst of men were armed with power to destroy the best, so that the empire could only be saved by their destruction, ’tis most certain, that mankind can never fall into a condition which stands more in need of laws to protect the innocent, than when such monsters reign who endeavour their extirpation, and are too well furnished with means to accomplish their detestable designs. Without any prejudice therefore to the cause that I defend, I might confess that all nations were at the first governed by kings, and that no laws were imposed upon those kings, till they, or the successors of those who had been advanced for their virtues, by falling into vice and corruption, did manifestly discover the inconveniences of depending upon their will. Besides these, there are also children, women and fools, that often come to the succession of kingdoms, whose weakness and ignorance stands in as great need of support and direction, as the desperate fury of the others can do of restriction. And if some nations had been so sottish, not to foresee the mischief of leaving them to their will, others, or the same in succeeding ages discovering them, could no more be obliged to continue in so pernicious a folly, than we are to live in that wretched barbarity in which the Romans found our ancestors, when they first entered this island.
If any man say, that Filmer does not speak of monsters, nor of children, women or fools, but of wise, just and good princes; I answer, that if there be a right inherent in kings, as kings, of doing what they please; and in those who are next in blood, to succeed them and inherit the same, it must belong to all kings, and such as upon title of blood would be kings. And as there is no family that may not, and does not often produce such as I mentioned, it must also be acknowledged in them; and that power which is left to the wise, just and good, upon a supposition that they will not make an ill use of it, must be devolved to those who will not or cannot make a good one; but will either maliciously turn it to the destruction of those they ought to protect, or through weakness suffer it to fall into the hands of those that govern them, who are found by experience to be for the most part the worst of all, most apt to use the basest arts, and to flatter the humors, and foment the vices that are most prevalent in weak and vicious princes. Germanicus, Corbulo, Valerius Asiaticus, Thrasea, Soranus, Helvidius Priscus, Julius Agricola, and other excellent men lived in the times of Tiberius, Caligula, Claudius and Nero; but the power was put into the hands of Sejanus, Macro, Tigellinus, and other villains like to them: and I wish there were not too many modern examples to shew that weak and vicious princes will never chuse such as shall preserve nations from the mischiefs that would ensue upon their own incapacity or malice; but that they must be imposed upon them by some other power, or nations be ruined for want of them. This imposition must be by law or by force. But as laws are made to keep things in good order without the necessity of having recourse to force, it would be a dangerous extravagance to arm that prince with force, which probably in a short time must be opposed by force; and those who have been guilty of this error, as the kingdoms of the East, and the ancient Roman empire, where no provision was made by law against ill-governing princes, have found no other remedy than to kill them, when by extreme sufferings they were driven beyond patience: and this fell out so often, that few of their princes were observed to die by a common death. But since the empire was transmitted to Germany, and the emperors restrain’d by laws, that nation has never been brought to the odious extremities of suffering all manner of indignities, or revenging them upon the heads of princes. And if the pope had not disturb’d them upon the account of religion, nor driven their princes to disturb others, they might have passed many ages without any civil dissension, and all their emperors might have lived happily, and died peaceably, as most of them have done.
This might be sufficient to my purpose: for if all princes without distinction, whether good or bad, wise or foolish, young or old, sober or mad, cannot be entrusted with an unlimited power; and if the power they have, ought to be limited by law, that nations may not, with danger to themselves as well as to the prince, have recourse to the last remedy, this law must be given to all, and the good can be no otherwise distinguished from the bad, and the wise from the foolish, than by the observation or violation of it. But I may justly go a step farther, and affirm, that this law which by restraining the lusts of the vicious and foolish, frequently preserves them from the destruction they would bring upon themselves or people, and sometimes upon both, is an assistance and direction to the wisest and best; so that they also as well as the nations under them are gainers by it. This will appear strange only to those who know not how difficult and insupportable the government of great nations is,3 and how unable the best man is to bear it. And if it surpass the strength of the best, it may easily be determined how ordinary men will behave themselves under it, or what use the worst will make of it. I know there have been wise and good kings; but they had not an absolute power, nor would have accepted it, tho it had been offer’d: much less can I believe that any of them would have transmitted such a power to their posterity, when none of them could know any more than Solomon, whether his son would be a wise man or a fool. But if the best might have desired, and had been able to bear it (tho Moses by his own confession was not) that could be no reason why it should be given to the worst and weakest, or those who probably will be so. Since the assurance that it will not be abused during the life of one man, is nothing to the constitution of a state which aims at perpetuity. And no man knowing what men will be, especially if they come to the power by succession, which may properly enough be called by chance, ’tis reasonably to be feared they will be bad, and consequently necessary so to limit their power, that if they prove to be so, the commonwealth may not be destroy’d, which they were instituted to preserve. The law provides for this in leaving to the king a full and ample power of doing as much good as his heart can wish, and in restraining his power so, that if he should depart from the duty of his office, the nation may not perish. This is a help to those who are wise and good, by directing them what they are to do, more certainly than any one man’s personal judgment can do; and no prejudice at all, since no such man did ever complain he was not suffer’d to do the evil which he would abhor if it were in his power; and is a most necessary curb to the fury of bad princes, preventing them from bringing destruction upon the people. Men are so subject to vices and passions, that they stand in need of some restraint in every condition; but most especially when they are in power. The rage of a private man may be pernicious to one or a few of his neighbours; but the fury of an unlimited prince would drive whole nations into ruin: And those very men who have lived modestly when they had little power have often proved the most savage of all monsters, when they thought nothing able to resist their rage. ’Tis said of Caligula, that no man ever knew a better servant, nor a worse master.4 The want of restraint made him a beast, who might have continued to be a man. And tho I cannot say, that our law necessarily admits the next in blood to the succession (for the contrary is proved) yet the facility of our ancestors, in receiving children, women, or such men as were not more able than themselves to bear the weight of a crown, convinces me fully, that they had so framed our laws, that even children, women, or ill men, might either perform as much as was necessarily required of them, or be brought to reason if they transgressed, and arrogated to themselves more than was allow’d. For ’tis not to be imagined, that a company of men should so far degenerate from their own nature, which is reason, to give up themselves and their posterity, with all their concernments in the world, to depend upon the will of a child, a woman, an ill man, or a fool.
If therefore laws are necessary to popular states, they are no less to monarchies; or rather, that is not a state or government which has them not: and ’tis no less impossible for any to subsist without them, than for the body of a man to be, and perform its functions without nerves or bones. And if any people had ever been so foolish to establish that which they called a government, without laws to support and regulate it, the impossibility of subsisting would evidence the madness of the constitution, and ought to deter all others from following their example.
’Tis no less incredible, that those nations which rejected kings, did put themselves into the power of one man, to prescribe to them such laws as he pleased. But the instances alleged by our author are evidently false. The Athenians were not without laws when they had kings: Aegeus was subject to the laws, and did nothing of importance without the consent of the people; and Theseus not being able to please them, died a banished man: Draco and Solon did not make, but propose laws, and they were of no force till they were established by the authority of the people.5 The Spartans dealt in the same manner with Lycurgus; he invented their laws, but the people made them: and when the assembly of all the citizens had approved and sworn to observe them till his return from Crete, he resolved rather to die in a voluntary banishment, than by his return to absolve them from the oath they had taken.6 The Romans also had laws during the government of their kings; but not finding in them that perfection they desired, the decemviri were chosen to frame others, which yet were of no value till they were passed by the people in the comitia centuriata;7 and being so approved, they were established. But this sanction, to which every man, whether magistrate or private citizen, was subject, did no way bind the whole body of the people, who still retained in themselves the power of changing both the matter and the form of their government, as appears by their instituting and abrogating kings, consuls, dictators, tribunes with consular power, and decemviri, when they thought good for the commonwealth. And if they had this power, I leave our author to shew, why the like is not in other nations.
[Patriarcha, ch. 24 (“Laws Not First Found Out to Bridle Tyrants but the People. The Benefit of Laws. Kings Keep the Laws, though Not Bound by Them”), p. 102.]
Quam grave & intolerandum sit cuncta regendi onus. Tacit. [Tacitus, Annals, bk. 1, ch. 11.]
Nec meliorem servum, nec deteriorem dominum. [Ibid., bk. 6, ch. 20.]
Plut. vit. Solon. [Plutarch, Life of Solon.]
[Plutarch, Life of Lycurgus.]
Ingenti hominum consensu propositis decem tabulis populum ad concionem convocarunt, & quod bonum, faustum faelixque sit republicae, ipsis, liberisque eorum esset, ire & legere propositas jussere. T. Liv. l. 3. [“With the consent of the vast majority, when the ten tables had been proposed, they called the people to an assembly; and they ordered them to go and choose whichever of the proposed laws would be good, auspicious, and happy for the republic, themselves, and their children.” Livy, History of Rome, bk. 3, ch. 34.]