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SECTION 45: The Legislative Power is always Arbitrary, and not to be trusted in the hands of any who are not bound to obey the Laws they make. - Algernon Sidney, Discourses Concerning Government [1698]

Edition used:

Discourses Concerning Government, ed. Thomas G. West (Indianapolis: Liberty Fund 1996).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SECTION 45

The Legislative Power is always Arbitrary, and not to be trusted in the hands of any who are not bound to obey the Laws they make.

If it be objected that I am a defender of arbitrary powers, I confess I cannot comprehend how any society can be established or subsist without them; for the establishment of government is an arbitrary act, wholly depending upon the will of men. The particular forms and constitutions, the whole series of the magistracy, together with the measure of power given to everyone, and the rules by which they are to exercise their charge, are so also. Magna Charta, which comprehends our ancient laws, and all the subsequent statutes were not sent from heaven, but made according to the will of men. If no men could have a power of making laws, none could ever have been made; for all that are or have been in the world, except those given by God to the Israelites, were made by them; that is, they have exercised an arbitrary power in making that to be law which was not, or annulling that which was. The various laws and governments, that are or have been in several ages and places, are the product of various opinions in those who had the power of making them. This must necessarily be, unless a general rule be set to all; for the judgments of men will vary if they are left to their liberty, and the variety that is found among them, shews they are subject to no rule but that of their own reason, by which they see what is fit to be embraced or avoided, according to the several circumstances under which they live. The authority that judges of these circumstances is arbitrary, and the legislators shew themselves to be more or less wise and good, as they do rightly or not rightly exercise this power. The difference therefore between good and ill governments is not, that those of one sort have an arbitrary power which the others have not, for they all have it; but that those which are well constituted, place this power so as it may be beneficial to the people, and set such rules as are hardly to be transgressed; whilst those of the other sort fail in one or both these points. Some also through want of courage, fortune, or strength, may have been oppressed by the violence of strangers, or suffer’d a corrupt party to rise up within themselves, and by force or fraud to usurp a power of imposing what they pleased. Others being sottish, cowardly and base, have so far erred in the foundations, as to give up themselves to the will of one or few men, who turning all to their own profit or pleasure, have been just in nothing but in using such a people like beasts. Some have placed weak defences against the lusts of those they have advanced to the highest places, and given them opportunities of arrogating more power to themselves than the law allows. Where any of these errors are committed, the government may be easy for a while, or at least tolerable, whilst it continues uncorrupted, but it cannot be lasting. When the law may be easily or safely overthrown, it will be attempted. Whatever virtue may be in the first magistrates, many years will not pass before they come to be corrupted; and their successors deflecting from their integrity, will seize upon the ill-guarded prey. They will then not only govern by will, but by that irregular will, which turns the law, that was made for the publick good, to the private advantage of one or few men. ’Tis not my intention to enumerate the several ways that have been taken to effect this; or to shew what governments have deflected from the right, and how far. But I think I may justly say, that an arbitrary power was never well placed in any men and their successors, who were not obliged to obey the laws they should make. This was well understood by our Saxon ancestors: They made laws in their assemblies and councils of the nation; but all those who proposed or assented to those laws, as soon as the assembly was dissolved, were comprehended under the power of them as well as other men. They could do nothing to the prejudice of the nation, that would not be as hurtful to those who were present and their posterity, as to those who by many accidents might be absent. The Normans enter’d into, and continued in the same path. Our parliaments at this day are in the same condition. They may make prejudicial wars, ignominious treaties, and unjust laws: Yet when the session is ended, they must bear the burden as much as others; and when they die, the teeth of their children will be set on edge with the sour grapes they have eaten.1 But ’tis hard to delude or corrupt so many: Men do not in matters of the highest importance yield to slight temptations. No man serves the Devil for nothing: Small wages will not content those who expose themselves to perpetual infamy, and the hatred of a nation for betraying their country. Our kings had not wherewithal to corrupt many till these last twenty years, and the treachery of a few was not enough to pass a law. The union of many was not easily wrought, and there was nothing to tempt them to endeavour it; for they could make little advantage during the session, and were to be lost in the mass of the people, and prejudiced by their own laws, as soon as it was ended. They could not in a short time reconcile their various interests or passions, so as to combine together against the publick; and the former kings never went about it. We are beholden to H-de, Cl-ff-rd and D-nby,2 for all that has been done of that kind. They found a parliament full of lewd young men chosen by a furious people in spite to the Puritans, whose severity had distasted them. The weakest of all ministers had wit enough to understand that such as these might be easily deluded, corrupted, or bribed. Some were fond of their seats in parliament, and delighted to domineer over their neighbours by continuing in them: Others preferr’d the cajoleries of the court before the honour of performing their duty to the country that employ’d them. Some sought to relieve their ruined fortunes, and were most forward to give the king a vast revenue, that from thence they might receive pensions: others were glad of a temporary protection against their creditors. Many knew not what they did when they annulled the Triennial Act, voted the militia to be in the king, gave him the excise, customs and chimney-money, made the act for corporations, by which the greatest part of the nation was brought under the power of the worst men in it; drunk or sober pass’d the five mile act, and that for uniformity in the church.3 This embolden’d the court to think of making parliaments to be the instruments of our slavery, which had in all ages past been the firmest pillars of our liberty. There might have been perhaps a possibility of preventing this pernicious mischief in the constitution of our government. But our brave ancestors could never think their posterity would degenerate into such baseness to sell themselves and their country: but how great soever the danger may be, ’tis less than to put all into the hands of one man and his ministers: the hazard of being ruin’d by those who must perish with us, is not so much to be feared, as by one who may enrich and strengthen himself by our destruction. ’Tis better to depend upon those who are under a possibility of being again corrupted, than upon one who applies himself to corrupt them, because he cannot otherwise accomplish his designs. It were to be wished that our security were more certain; but this being, under God, the best anchor we have, it deserves to be preserved with all care, till one of a more unquestionable strength be framed by the consent of the nation.

[1]Jeremiah 31: 29.]

[2][Hyde, Clifford, Danby.]

[3][The Triennial Act (1641) had stipulated that three years were not to pass without a parliament being summoned. The Act of Uniformity (1662) required the use of the Episcopal Book of Common Prayer. Clergymen who refused to comply lost their positions; and, by the Five Mile Act of 1665, they were forbidden to go within five miles of a place where they had held a church position.]