Front Page Titles (by Subject) Book XI: Of the Laws Which Establish Public Liberty, In Relation to the Constitution. - A Commentary and Review of Montesquieu's 'Spirit of Laws'
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Book XI: Of the Laws Which Establish Public Liberty, In Relation to the Constitution. - Antoine Louis Claude, Comte Destutt de Tracy, A Commentary and Review of Montesquieu’s ’Spirit of Laws’ 
A Commentary and Review of Montesquieu’s ’Spirit of Laws’: To which are annexed, Observations on the Thirty First Book by the late M. Condorcet; and Two Letters of Helvetius, on the Merits of the same Work, trans. Thomas Jefferson (Philadelphia: William Duane, 1811).
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Of the Laws Which Establish Public Liberty, In Relation to the Constitution.
The problem of the distribution of the power of a society, so as to be most favorable to liberty, cannot be solved so long as too much power is given to a single man.
Spirit of Laws, Book XI.
I have thought proper to divide my commentary on this book, into two chapters. The first alone bears directly upon the work of Montesquieu; the second only flows out of the first but Montesquieu has not gone so far into the subject in his enquiry.
Is the Problem Solved, As To the Best Means of Distributing the Power of Society, So As to Be Most Favorable to Liberty?
In this book, the title of which does not present an idea sufficiently distinct, the degree of liberty which may be enjoyed under each constitution of government is examined; that is to say.... the effects produced on the liberties of the citizens by the laws forming the constitution of the state. Such laws are those only which regulate the distribution of political power; for the constitution of a society is nothing more than the collection of rules determining the nature, extent, and limits, of the authorities ruling it; so that when these rules are to be united into a single body of laws, serving as the bond of the political edifice, the first precaution to be taken, is not to admit any thing irreconcilable with the objects proposed to be secured; without which precaution it is not exactly a constitution, but an expedient, calculated for a greater or a less considerable portion of the general body of the nation.
To know what influence the organization of society has on the liberty of its members, we should perfectly understand what is meant by liberty. The word liberty, like all others intended to express abstract ideas of a very general nature, is often taken in a multitude of different acceptations, which are so many particular parts of its comprehensive signification; thus we say, a man has become free, when he has finished an enterprize, in which he had been wholly occupied; when he has given up a slavish office; when he has renounced a station, which imposed responsible duties on him; when he has broken the yoke of certain passions, or connexions, which kept him in subjection; when he has escaped from a prison; when he has withdrawn himself from the dominions of a tyrannical government: we likewise say, the liberty of thinking, speaking, acting, writing; that his speech, respiration, and all his movements are free, when nothing constrains him in these respects: then all these particular faculties of liberty are ranged into classes, forming different groups according to their several natures; such as physical, moral, natural, civil, and political liberty; whence it happens, that when forming a general idea of liberty, everyone composes it of that kind of liberty, to which he attaches the greatest importance, of a freedom from those constraints against which he is the most prejudiced, and which appear to him the most insupportable; some make it to consist in virtue, in indifference, or in a kind of impassibility, like those stoics who pretended that their sages remained free, even when in chains; others place it in society; others in competency and ease, or in a state unconnected with and independent of any social ties; others again pretend, that to be free is to live under certain forms of government or generally under one that is moderate and enlightened. All these opinions are just, according to the sense in which liberty is understood; but in none is it seen in all its forms, nor is its proper character embraced in any of their definitions. Let us examine what these different kinds of liberty possess in common, and in what they severally resemble each other; for it is in this way only we can approach the general ideas, abstracted from all the particular ideas which are comprehended therein.
If we consider it attentively, we shall perceive that one property common to all descriptions of liberty, is that it procures, for the individual enjoying it, the exercise of his will in a greater extent than if deprived of that enjoyment; therefore, the idea of liberty, in its most abstract form, as well as in its greatest extent, is nothing more than the idea of the power to do that which the mind wills; and in general, to be free is to be enabled to do what we please.
Hence we perceive that liberty is applicable only to beings endowed with will; and when we say of water that it runs more freely when the obstacles opposed to its passage are taken away, or that a wheel turns more freely when the friction retarding it is diminished; it is by comparison we express ourselves, because we presuppose that the water inclines, or possesses a quality which disposes it to run, and the wheel a like disposition to turn; or that such is the necessary effect in given circumstances.
For the same reason, this question so much debated.... Is our will free? should never be urged, for it is an abuse of terms; liberty only relates to the will when formed, and not before the will exists: what has given rise to an enquiry of this kind is, that on particular occasions the motives acting upon us are so powerful, that they determine us immediately to will one thing in preference to or rather than another, and then it, is said, we will irresistably or are necessitated to will; while in other circumstances, the motives not being so strong, of acting with less impulsion, leave us the power of deliberation, to reflect on and weigh them in our minds; in this state, we think we possess the power either to resist or to obey those impulses, and to take one determination in preference to another, solely because we will it; but this is an illusion, for however weak a motive may be, it necessarily determines our will, unless it be balanced by a more powerful motive, and then this is as necessarily determined as the other would have been, if alone; we will or we do not will, but we cannot will to will; and if we could, there would yet be an antecedent cause of this will, and this cause would be beyond the range of the will, as are all those which cause it; and therefore we must conclude that liberty exists only after the will, and in consequence of its unrestrained exercise; or that liberty is no more than the power of executing the will. I ask the reader's pardon, for this metaphysical discussion on the nature of liberty, but it will soon be perceived; that it is neither inappropriate nor useless. It is impossible to speak intelligibly on the interests of men without a previous and due understanding of their faculties; if there be any thing more materially deficient than another, in the writings of the great man on which I comment, it is particularly in this preliminary study, and we may perceive how vague the ideas are which he presents to us of liberty, although he had devoted three chapters to that particular subject. We have made nearly the same exceptions to his idea of the word law, in the first book.
Liberty, in the, most general acceptation of the word is nothing else than the power of executing the will, and accomplishing your desires; now the nature of every being endowed with will, is such that this faculty of willing causes his happiness or unhappiness; he is happy when his desires are accomplished, and unhappy when they are not; and happiness or misery are proportioned in him according to the degree of his gratification or disappointment. It follows that his liberty and happiness are the same thing. He would always be completely happy if he had always the power of executing his will, and the degree of his happiness is always proportionate to the degree of his power.
This remark explains why men, even without suspecting it, are all so passionately fond of liberty; for they could not be otherwise, since whenever there exists a desire, under whatever name it may appear, the possibility of accomplishing that desire is implied, and willed or wished; it is always the possession of a portion of power, or the removal of some constraint, which constitutes a certain portion of happiness. The exclamation.... "O if I could!" comprehends the desire of accomplishing all our wishes; every wish would be gratified if we could effect it by willing it: all powerful, or what is the same thing, entire liberty, is inseparable from perfect happiness.
This remark conducts us farther, and explains to us why men have formed to themselves different ideas liberty, according to their different ideas of happiness. They must always have attached the idea of liberty in an eminent degree, to the power of doing what they please, and of which satisfaction is the attribute. Montesquieu, in his second chapter, appears to be astonished that many people should entertain false ideas of liberty, making it consist in things foreign to their solid interests, or at least not essential thereto; but he should have first considered that men have often placed their happiness and satisfaction in the enjoyment of unimportant or even hurtful things: the first fault committed, the second follows as a consequence. A Russian in the time of Peter the great, placed his greatest interest in his long heard, which was in fact of no use, or an incumbrance, or very ridiculous. The native of Poland was passionately attached to his liberum veto, which was the great source of affliction to his country. Both Russians and Poles would have deemed themselves subjected to the greatest tyranny, if obliged to part with either; and their subjection was certainly great, when they were deprived thereof, for their strongest desires were frustrated. Montesquieu answers himself by adding this remarkable phrase.... "In fine, every one has called that government free, which was most conformable to his inclinations;" which is unquestionably true, it could not be otherwise, and each has so expressed himself reasonably, because every one is truly free when all his wishes are gratified, and we cannot be free in any other manner.
From this last observation flows many consequences; the first which presents itself is.... that a nation should be considered truly free as long as it continues satisfied with its government, even if in its nature the government should be less conformable to the principles of liberty than another which displeases him. It is often mentioned that Solon said.... "I have not given to the Athenians, the best possible laws that they could receive,".... that is, the best they were worthy of. I do not believe that Solon said so; such contemptuous boasting would have been very ill placed in the mouth of one who had adapted his laws so injudiciously to the character of the nation, that they did not last his life time. But I believe he did say "I have given them the best laws they would receive." This might have been true, and justifies him under the circumstances of his want of success; and it necessarily must have been so, because as he did not impose his laws by force, he was necessitated to give them as they would be received; now the Athenians, in adopting such imperfect laws, were certainly ill advised; but they were very free; while in modern times a great part of France, in receiving their constitution of the year three, (1795) however free it might be in its form, were really slaves, since it was established in opposition to their will; hence we may conclude, that institutions can be ameliorated only in proportion to the increase of information among the people at large, and even those which are the best absolutely are not always so relatively; for the better they are, the more they are opposed to false ideas, and if they are disagreeable to too great a number, they cannot be maintained without using forcible means, after which there could be no more liberty, no more happiness, no more security; this may serve as an apology for many institutions bad in themselves, which may have been at one period well adapted to the circumstances in which they existed, but furnishes no argument for our preserving them when they are found to be pernicious.... and it may also serve to explain the causes of failure of many good institutions, and will not prevent us from adopting them at a more favorable time.
The second consequence of the observation which we have made above is, that the government under which the greatest liberty is enjoyed, whatever may be its form, is that which governs the best, for in it the greatest number of people are the happiest; and when we are as happy as we can be, our desires are accomplished as much as possible. If the most despotic prince should administer public affairs in a perfect manner, we should enjoy the greatest possible happiness under his rule, which is the same thing as liberty. It is not then the form of government in itself, that is so important; it would indeed be a very weak argument in its favor, that it was in form more agreeable to reason, because it is not mere speculation or theory, which constitute the happiness of mankind in society, but practical good and beneficial results; for it concerns individuals who possess the faculties of life, and are sensible of good and evil, not ideal or abstract beings. Those, who in the political convulsions of our times, said.... "I do not care about being free, all I desire is to be happy," uttered a sentiment contradictory in itself.... being both very sensible and very insignificant: sensible, in as much as happiness is the only object worthy of our attention; insignificant, in as much as happiness is really true liberty. For the same reason, those enthusiasts, who said that happiness is not to be taken into consideration, when liberty is in question, are guilty of the same absurdity; for if happiness could be separated from liberty, it should without hesitation be preferred: but we are not happy when we are not free, for certainly suffering is not doing as we wish. The only circumstance, therefore, which renders any one social organization preferable to another, is its being better adapted to render the members of society happy; and if in general it be desired, that the social constitution should leave to the people a great facility to make known their wishes, it is then more probable that under a government which secures this power, they are governed as they desire.
Let us examine, with Montesquieu, which are the principal conditions to be fulfilled in order to accomplish this end; and like him, let us only occupy ourselves on the question generally, without respect to any local or particular conjuncture.
This justly celebrated philosopher has remarked, in the first place, that public functions may be reduced to three principles: that of making laws.... that of conducting internal and external affairs, according to the intention of the laws.... and, that of passing judgment on private or civil differences, as well as on accusations of private and public offences: that is to say, in other words.... that social action is comprised in willing, executing, and judging.
Then it may be easily perceived that these three great functions, or even two of them, could not be united in the same person or persons, without the greatest danger to the rest of the citizens; for if the same man, or body of men, were at the same time authorised to will and to execute, the single person or the body of men, would be too powerful for any to interpose or form a judgment, and consequently would be obliged to submit. If the one only who made the law also judged, it is probable that he would soon rule the one entrusted with the execution, of the law; and in short, this last person who executes, being always the most to be feared, on account of the physical force entrusted to him; if he should be invested with the function of judging, there can be no doubt that he would soon so arrange the means of authority, that the legislating power must enact such laws only as he should please.
These dangers are too palpable to attach any merit to their discovery; the great difficulty appears to be, how to devise the means of avoiding them. Montesquieu spares himself the trouble of such an enquiry, by persuading himself that they are already found: he even blames Harrington for occupying himself with the subject. "We may say of him," says Montesquieu, "that he has only sought liberty, after stumbling upon it without knowing it; that he looked for Chalcedon with the coast of Byzantium in his view." He is so well satisfied of the problem being solved, that he says in another place.... "To discover political liberty in the constitution, does not require so much trouble, if we can possess it where it is; if we have found it, why seek it:" and he immediately presents the form of the English government, as he imagined it to exist in its administration. It is true, that at the period in which he wrote, England was a very flourishing and celebrated state; its government was, of those till then known, that which produced, or appeared to produce, the most flattering results in every respect. However, this superiority, partly real, partly apparent, but in a greater measure the effect of causes wholly foreign, should not have prepossessed so strong a mind as Montesquieu, or induced him to suppress the errors of the theory, or to insinuate that it leaves nothing more to be desired.
This prepossession in favor of English institutions and ideas, led him in the first place to forget, that the legislative, executive, and judicial functions, are properly only delegated trusts, functions which may indeed confer power and credit, on the persons invested with them, but are not therefore self-existent in the persons who exercise them. There is by right, only one power in society, and that is the will of the nation or society, from which all authority flows; and in fact there is not any other change, than that of the authority delegated to the man, or body of men, of the several functions by which they disburse the necessary expences, and exercise all the physical force of the society. Montesquieu does not deny this, he is only unmindful of it; he is entirely taken up with his triple powers, his legislative, executive, and judiciary, considering them as rivals, and as powers independent of each other; and that it is only necessary to reconcile or restrain them, each by the other, in order to make every thing go on well, without taking any notice, whatever, of the natural power from which they are derived, and upon which they depend.
By not perceiving that his executive power is the only real one in fact, and that it influences all the others, he concedes, without consideration or enquiry, this power to an individual, and even makes it hereditary in that individual's family, and for no other reason than because one man is better calculated for action than many: if this principle were well founded, it would have been yet worth enquiry, whether if an individual be so much better fitted for action, he would suffer any other free action to exist round him; and moreover, whether this individual, chosen at hazard, is so likely to be competent to the exercise of that wise deliberation which should precede every action.
He also approves of the legislative power, being confided to the legislators, freely elected by the people for a limited period, and from all parts of the nation; but what is still more extraordinary, he approves of the existence of the privileged hereditary body in the nation, and that this body should compose of itself, by right, a part of the legislative body, distinct and separate from that elected by the people, and that it should possess the right of a negative upon the resolves of the elected representatives! His reasons are curious; it is, he says, "because their prerogatives are odious in themselves, and they should be enabled to defend them;" it would seem a more natural conclusion, we should think, that being odious they should rather be abolished.
He also thinks, that this second section of the legislative body is very useful, because there can be placed therein, all that is really important in the judiciary authority, the passing of judgment on crimes against the state; so that, as he says, it becomes the regulating power, of which both the executive and legislative powers stand in need to mutually temper them. He does not look to facts in the history of England, nor perceive what it attests, that the house of lords is any thing else, rather than an independent and regulating power; that it is, in fact, only an appendage to the court, the advanced guard of the executive power, whose fortunes it has always followed; and that giving this irresponsible body a negative in legislation and a high judiciary function, is only investing the court with an additional force, and rendering the punishment of state criminals a matter of mere discretion with the executive, or rendering it impossible to punish whenever it is not the pleasure of the court.
Notwithstanding these advantages, and the great power which the executive has at its disposal, he does not think the right of a negative upon the laws necessary to the executive; nor that of convoking, nor of proroguing, nor of dissolving them; and he imagines that the popular representatives possess a sufficient defence, in their precautionary power of voting the supplies only for one year, as if they must not renew them every year, or witness a dissolution of the government; and that this power is further augmented by their having it in their discretion to prohibit or permit the raising of a military force, or the establishment of camps, barracks, or fortified places; as if they must not be forced into the establishment of either, whenever a necessity shall call for it... a necessity which the executive can at any time create.
Montesquieu terminates this long detail, by a sentence obscure and embarrassed.... "This is the fundamental constitution of the government of which we speak; the legislative body being composed of two parts, each of them constrains the other, by their mutual preventative faculty; both are restrained by the executive, which will itself be restrained by the legislative:" and to this he adds this singular reflection: "These three powers should naturally form a state of repose it or inaction; but as in the nature of things they must move, they are under the necessity of acting in concert." I must acknowlege, that I do not perceive the absolute necessity of this conclusion; on the contrary, it appears evident, that where every thing is constituted, so as to constrain or impede motion, nothing can be perfectly accomplished. If the king were not effectively master of the parliament, and if he did not consequently lead them, I can see nothing in this weak fabric of government that could prevent him; neither can I perceive any thing in favor of such an organization.... which is in my opinion very imperfect.... but a circumstance which belongs to it rather than forming a part of it, and which has not been noticed.... that is, the constancy with which the nation wills that it should so subsist. But as at the same time, they are wisely attached to the maintenance of personal liberty and the freedom of the press, the power is always preserved of making the public opinion known; so that when the king abuses his power, of which he really possesses too much, he is subject to be opposed by a general movement in favor of those who resist his oppression; as has been twice exemplified in the seventeenth century, and which is always very easy in an island, where there can be no motives, consistent with the principles of the government, for maintaining a large standing army. This is in fact the only effective veto, which is to be found under the English constitution, compared with which all the rest are nothing.
The great point in the English constitution is, that the nation six or seven times deposed its kings: but then it must be remarked, that this is not a constitutional expedient; it is rather all insurrection arising out of necessity, as it was formerly said to be according to the laws of Crete. Legislative deposition, to my great astonishment, Montesquieu praises in another part of his book, notwithstanding it is certain that this remedy is so cruel, that a sensible people would endure great evils, before they could resort to it; and though it may happen that they defer redress so long, that if the usurpation be conducted with address, the people may insensibly acquire the habit of slavery so inveterately, as no longer to feel the desire, or may cease to posses the capacity, of breaking their chains by any means.
What very much characterises the warmth of Montesquieu's imagination, is, that on the faith of three lines from Tacitus, which would require a copious commentary, he has persuaded himself, that he found among the savages of ancient Germany, the model and the spirit of the government, which he considers as a masterpiece of human reason; in the excess of his admiration, he thus exclaims.... "This excellent system was discovered in the woods:" and a little after he adds.... "It does not belong to me to examine whether the English actually enjoy liberty or not, it is sufficient to say, it is established by their laws." Nevertheless, I am of opinion, that the first point was well worthy of examination, were it only to assure himself, that he had a just knowlege of the second; because if he had bestowed more attention on their laws, he would have discovered that among the English, there exists really no more than two powers instead of three; that these two powers exist only when both are present, because one has all the real force and no public attachment, while the other possesses no force, but enjoys all the public confidence, until it manifests a disposition to overpower its rival, and sometimes even then: that these two powers, by uniting, are legally competent to the change of the public established laws, and even those which determine their relations and their existence, for no law obstructs them, and they have exercised this power on various occasions: so that, in fact, liberty is not truly established by their political laws; and if the English really enjoy liberty to a certain extent, it originates in the causes which I have explained, and has reference to certain received usages in their civil and criminal proceedings, rather than to positive laws; as, in fact, it is altogether without law established.
The great problem, therefore, of the distribution of the powers of society, so that neither of them may trespass on the authority of the other, or the limits assigned them by the general interests; and that it may always be easy to keep them within bounds, or to bring them back by peaceable and legal means, is not, I conceive, resolved in that country: I would rather claim this honor for the United States of America, the constitution of which determines what should be done when the executive, or when the legislative, or when both together, go beyond their legitimate powers, or are in opposition to each other; and when it becomes necessary to change the constitutional act of a state, or of the confederation itself. But it may be objected, that in case of such regulations, the great difficulty lies in their execution; that the Americans, when the authorities of a particular state are in question, are guaranteed by the force of the superior authority of the confederation; and that when it becomes a question of guarantee, it resolves itself into the union of the several confederated states, acting for one state; and that in this view of the facts, we have rather eluded than solved it, by the aid of the confederative system; and that it therefore remains to be explained, how the same end could be obtained, where the established government is an indivisible body or unity.
Such a subject requires to be treated of in the manner of a theory, rather than historically; I shall therefore endeavor to establish à priori, the principles of a truly free, legal, and peaceable constitution; for which purpose we must take a fair point of view, from ground a little more retired and elevated.
How Can the Proposed Problem Be Solved?
The problem can only be solved by never placing more power in the hands of a single man, than may be taken from him without violence; and by changing every thing with him.
Spirit of Laws, Book XI.
We have said, that perfect power or perfect liberty, is perfect happiness: this perfect state is not assigned to man: it is incompatible with the weakness of all finite beings.
If it were possible for a man to live in a state of self-dependence and absolute independence, he would certainly not be constrained by the will of other men, but he would be the slave of all the powers of nature, so as not to be able to resist them sufficiently for his own preservation.
When men, therefore, unite in society, it is not true, as has been so often said, that they sacrifice a part of their liberties to enjoy the rest with security; on the contrary, every one of them acquires by association an encrease of power. This it is that so imperiously inclines men to unite, and is the reason why there is so much less evil in the most imperfect state of society, than in a state of separation; men are from time to time oppressed by society, but they are constantly receiving assistance therefrom. Suppose yourself placed in the desert of Lybia, proceed from thence into the territory of the emperor of Morocco, and you imagine yourself arrived in a hospitable country. For men to live together, every one should make some kind of arrangement, perfect or imperfect, with all the others; it is the manner of this arrangement in which consists what is called the constitution of society.
These social arrangements were made in the beginning of all societies, and without any principles to govern their formation; afterwards they were modified, ameliorated, and even rendered worse in many respects, according to circumstances; and hence originates the almost infinite number of social organizations among men, of which scarce one resembles any other, without our being able, in general, to say which is the worst. These rude arrangements necessarily subsist, as long as they do not become absolutely insupportable to the greatest part of those who are interested therein, for changing them generally costs very dear. But let us suppose a large and enlightened nation to become tired of their constitution, or rather conscious of not having duly digested and determined upon a good one, as is generally the case; let us examine what it should do to form one, according to the light of reason simply.
It appears evident to me, that it could only take one of the three following courses:.... either to channge the authorities governing it, and to arrange among themselves reciprocally the limits of the several functions, and clearly to define their rights and duties; that is to say, the cases wherein they should be obeyed or might be resisted:.... or to nominate some enlightened person to draw up a complete plan of a new government:.... or to confide this important task to an assembly of deputies freely chosen for the purpose, and exercising no other function.
The first of these methods was pursued by the English in 1688, when they consented, at least tacitly, to their parliament dethroning James II. receiving William III. and making a convention with him called the bill of rights, and which they in fact ratified by their obedience and even attachment. The second method was had recourse to by several ancient nations: and the third has been preferred by the Americans and French in modern times, when they shook off the yoke of their former monarchs. But the Americans have followed it exactly, excepting in the first instance; whereas the others have departed therefrom two different times, by leaving the power of governing and constituting in the same persons; each of these three courses has its advantages and disadvantages.
The first is the most simple, prompt, and easy in practice; but it amounts to only a kind of transaction between the different authorities, and the limits of their power taken together, will not be circumscribed with due exactness, nor will the means of reforming or entirely changing it, be provided for, nor will the rights of the nation, in respect to the rulers, be well known.
The second promises a more perfect renovation and more complete legislation; it even gives some reason to hope that a new system of government, originating with and formed by one person, will possess more uniformity and a better combination; but independently of the difficulty of finding a sage, worthy of placing so much confidence in, and the danger of granting it to an ambitious person, who would render it subservient to his own purposes, it is to be apprehended, that a plan the conception of any single man, and which had not been submitted to discussion, may not be sufficiently adapted to the national ideas, and would not, therefore, obtain the public sanction. It is even almost impossible, that it should obtain the general consent, unless its author, like most of the ancient legislators, should call in the divinity to his assistance, and persuade the people that he was only the interpreter of a supernatural power.
But this cannot be put in practice in our time; moreover, reason can never be well established, when it is founded on imposture: besides that there is this inconvenience, a constitution is always essentially bad, when it does not contain in itself a clear, legal, and peaceable means of modifying and changing it: when it is not so contrived, as to adapt itself to the progress of time and experience; or when it assumes a character of perpetuity and stability, inconsistent with any human institution; now it is very difficult to conceive, that all this should not be found in any government, which has been held forth as the work of a God.
Respecting the third manner of forming a constitution, when we reflect how much more unreasonable men are when united, than any of them taken separately; how much inferior the enlightened views of an assembly are to the best informed of its members; how much exposed its resolutions are to wavering and incoherency; we naturally conclude that its work cannot be the most perfect possible; and it may also be feared, that this assembly might assume to itself the sole power, and with a view not to be divested of that power, may very much retard the accomplishment of the purposes for which they were delegated, and by this or such means so lengthen out its authority, as to degenerate into a tyranny or anarchy.
The first of these objections is founded; but we must likewise consider, that this assembly, being composed of members approved of in different parts of the territory, and who are acquainted with the dispositions of the inhabitants, whatever it may determine upon will be very likely to be acceptable in practice, and received not only without effort but with pleasure.
Secondly: that the information of this assembly will always be superior to that of the people at large, and every thing being naturally and fully discussed by it, the motives of its determinations will be known and examined; and as it is itself formed upon a knowlege of public opinion, it will be in fact the opinion of the public; so that it will very much contribute to the rectification of general ideas, and to the progress of the social tie among the people: now these advantages are superior in effect to a greater perfection in the theory of the social organization which may be adopted.
The second inconvenience is more apparent than real, for a society should not undertake to form a new constitution, until it shall have united all the powers of society in such as are favorable to the undertaking; this is the thing previously necessary; it is in this that revolution and destruction properly consist; all the rest is only organization and reconstruction. Now this provisory authority which convokes an assembly charged with constituting a form of government, should invest it with that single function only, reserving to itself the superintendance of the social machine until completely renovated; for the transactions of society should suffer no interruption: there should always be an intermediary authority between the new and the old. The famous national convention of France, which has perpetrated so much evil against humanity, and cast a temporary odium even upon reason itself; which, notwithstanding the great capacity and virtue of several of its members, permitted itself to be ruled by fanatics and hypocrites, villains and impostors, and thereby rendered useless, as if by anticipation, its best conceptions; this body became exposed to so many misfortunes, from the legislative body which preceded it, having devolved all their functions and powers upon it at the same time. The legislative body, after conceiving itself obliged to overturn the throne, after having proclaimed the national desire for a republic, (as we have said according to Montesquieu's idea) that is to say, for the destruction of the hereditary executive power, should have called a convention, to realize these views only, and to organize society in a manner corresponding therewith; meantime they should have continued to watch over the interests of the moment, and reserved to themselves the care of conducting the national affairs. Then the national convention would infallibly have accomplished its legitimate purpose in a very short time and without commotion.
For the same reason, the first continental congress of America, and the first national assembly of France, having taken the power from the old authorities, and being thereby the sole and exclusive governing powers, they should not have made themselves constituent authorities, but have convoked an assembly for that special purpose, and acted under their protection.11 Notwithstanding this irregularity, experience has proved that they did not prolong their existence unnecessarily, and resigned their authority as soon as the public interests required, or rather permitted it: and even the Frenel constituent assembly was so impatient to dissolve itself that it committed a great fault, in declaring its member incapable of being chosen for the legislative assembly which was to follow it: depriving themselves also every influence in ulterior transactions.
Of the three modes which a nation may adopt, that is desirous of altering its constitution, I believe the last is that which unites the most advantage and the least inconvenience; but whatever be that mode which is preferred, to choose it there should be an assemblage, and the assembly should be convoked by the authority actually existing.
If we desire to proceed with method, we should examine the first point: events never present themselves with the same regularity as they may be arranged by theory; but by a due attention to events, we may always find in the concatenation of causes which lead to their successive effects, a series of ideas which are nothing else than the data which constitute a good or an erroneous theory, the thread of which we should never lose sight of, if we mean not to go astray.
It is evident that the nation we speak of should be consulted for the object in question.... that is, on the choice of the means which it desires to employ in reconstructing the edifice of society: it is no less true that all the members of a considerable society, cannot be assembled in one place for purposes of deliberation; the provisional authority which governs, should therefore convoke several assemblies in different parts of the territory, and regulate the mode in which their suffrages shall be collected; thus far there can be no doubt. But here a question presents itself, which will determine many others, for it will be met with in a thousand forms in all the subsequent details: should all the citizens be equally called to such assemblies, and vote in the same manner? I answer decidedly in the affirmative, and I will give my reasons.
It is generally said, and Montesquieu has also said it, that "there are always in a state, people who are distinguished by birth, riches, or honors; that if they were confounded with the people, and had only a voice in common with the rest, to them liberty would become slavery, and they would have no interest in defending liberty so established, because the greatest preponderacy of public power would be against them. Their part in the legislation of the state, should be, therefore, proportioned to the other advantages which they possess; which would be accomplished by constituting them into a body, possessing the power of checking the enterprizes of the people, as the people would have a like right to check theirs."
I must acknowlege, that these arguments do not carry conviction to my judgment; indeed they appear to me, a mass of confusion, which it may be proper to extricate from disorder.
Beginning with birth, a man possessed of a name celebrated for great talents, or great public services, or only a name honored by a manner of living above the common, or by functions to which distinction is attached in society, possesses the advantages of being more generally known, rather than of rendering more various or more useful services to society; he may be generally presumed to have a better education, more enlarged ideas, and acquirements more extensive; he attracts more attention, and possibly more good will is borne towards him; his happiness may excite less envy, and his misfortunes inspire more interest. These are no doubt great advantages; but they cannot be lost, they exist in the nature of man and of society; no law can give, and no law can take them away; they stand in no need of special protection to assure their existence. But is it to be asserted, that these great advantages must also confer on the possessor, a positive right to more; to places of distinction, to powers, and prerogatives, of which his fellow citizens are deprived? Here the case is very different; such rights, if permitted to exist, can only be conferred by the society and granted for their use, and to society alone it belongs, to determine whether they are useful or pernicious, the individuals enjoying such advantages, should possess no particular power to defend them against the general interest.
The same principle holds good as to wealth: undoubtedly wealth in itself is a very great power; it has nearly the same advantages as birth, and others peculiarly its own. A great fortune gives to him who is the possessor a great superiority in every society, if he only knows how to use it, over those who are not wealthy; and on this account particularly, it is not necessary to add any power or privilege to wealth; for if this great fortune should happen to be a patrimonial right, it is guaranteed by the laws that relate to property and the protection of personal rights; if it consist of rewards conferred by the state, either as a recompense or a salary, there can be no reason for subjecting the state, in the distribution of its gifts, to any other consideration than those of public convenience and justice.
The same may be said, and with additional force, with respect to honors; if we understand by this word honor, the splendor and consideration which is attached to birth, fortune, or personal glory; no law can dispose thereof. If, on the contrary, by honor is to be understood, the distinctions and favors which government may have the right to grant, they should never be accompanied by any power capable of maintaining possession of them in opposition to the will of society.
It is therefore always useless or injurious that those who already possess great advantages in society, should also be invested with a superiority of power, which, under the pretext of defending themselves, would be the means of social oppression. It is certainly enough that those who do possess advantages which are not common to the society at large, are secured by the laws in the unmolested enjoyment of them. It is absurd to say that if they did not enjoy this increase of power, they would believe themselves oppressed, and would consider general liberty as slavery to them; it is as if men possessed of great bodily strength should declare themselves very much oppressed, in that they are not permitted so to use that strength for their particular benefit, because they are prevented from employing it against their fellow citizens and from forcing the weak to work for the profit of the strong against their own will.
This system of balancing, I consider as erroneous and indefensible: it originates in imperfect combinations, which confer powers of defence on particular personages, under the idea of protecting them against the general interest; by this means some of the public authorities can support themselves against other authorities, without having recourse to the general will; but this balancing is not securing peace, it is declaring war. We have seen above, that in this last case, notwithstanding the praises bestowed on the English government, nothing could be done, if, notwithstanding this pretended balance, there were not a really efficient power which put all in motion. It would be the same in the state which we are speaking of; society would be shackled or torn to pieces, if all the particular privileges were not really and practically destroyed, or tolerated by the general acquiescence of the nation.
I must add, that this pretension to a power independent of the people at large, and capable of contending against the people, is the cause of that constant warfare which is every where seen between the rich and the poor, and which, if it were abrogated in society, would render it no more difficult to enjoy a thousand ounces of gold than one ounce; for the laws cannot defend small possessions without equally defending the great; nor is that envy even to hatred cherished against the opulent, when they are not the source and means of insolence and oppression; and even if they could not escape the envy of those who are in poverty, the influence which naturally and necessarily arises out of wealth, more than counterbalances any danger that it could be supposed to be exposed to.
It may be also said with truth, that the wealth of men forming a continued progression, from the humblest poverty to the most affluent fortune, and that even the fortunes of the same individuals, being subject to continual fluctuations, we should not be able to place the line of demarcation which exactly determines the rich and the poor. To constitute two opposite parties, if there were not already in society bodies of men formed and distinguished by favors, privileges, and powers, which the other members of society have not, would seem of itself preposterous; since it would be only forming a classification, in which each would be held up to the hatred or fear of the other, and holding forth incentives to intestine war, which could not exist without some motives; such discriminations are not, therefore, calculated to prevent them.
Another reason urged for giving those who have great advantages in society, additional power, is, that they generally unite with these advantages, that of information; and that consequently, taking it generally, it is better to be governed by men of intelligence, than by those who do not possess it in the same degree. This is true; but it may be avowed, that if superiority of knowlege, is really that which is desired to be rendered predominant, it must be perceived, that intellect or talent are not always united with other advantages; that superiority of understanding, is above all other advantages, that which can best defend itself and take its rank in society, when nothing else obstructs it, and that it is particularly essential to the free developement, of superior minds, and to give them more room for useful action, that no special protection should be granted to others. Talents will naturally prevail, whenever it is not contrary to the general interest; reason is perverted, by giving to it privileges for its support, which may induce ideas, that its interests are directly hostile to those of society.
I therefore conclude, that all the citizens should be equally convoked, and vote in the same manner on those occasions where the means of giving a new organization of society is to be provided for by election: for all are alike interested, since all that every one possesses, all their interests, and their very existence, are there alike involved in a common fate. It is of little consequence that the existence of some on account of wealth or any other extrinsic circumstance, is apparently more important or precious than that of others; each person's existence is all his own, and the idea of all is not changed by the idea of more or less. Those individuals only should be excluded from elections, who, on account of their age, have not yet reached the years of discretion.... those who are by legal judgments disqualified, or who have forfeited their rights by some public offence.... perhaps those also, who having accepted some function, may be considered as having placed their suffrages at the will of another person.
It may be asked, should women be permitted to vote at these assemblies? Men whose authority is very respectable, have been of this opinion. I am not of this opinion. Women are sensible and rational beings, have undoubtedly the same rights, and nearly the same intelligence and capacity as men, but they appear not to be destined to maintain those rights and employ their capacities in the same manner. The interest of individuals in society is, that every thing should be well conducted; consequently, as we shall often see, when we enter into details, that it is not the interest of every one to take a direct part in all that is done; it is on the contrary their interest to be occupied with that to which they are properly adapted; now women are certainly destined for domestic duties, and men for public functions. It becomes them to advise the men as wives or mothers, but not to contend with them in public affairs. Men are the natural representatives and defenders of those they love; these should influence but not assume their place, nor contend with them. There is between beings of constitutions so different and so necessary to each other, a dissimilitude, but not an inequality. Besides, this question is more curious than useful; it has and always will be solved in practice, according to my opinion, excepting in some case where along series of habitudes have perverted the intentions of nature and caused then to be lost sight of.
Every man then should be equally entitled to meet in the assembly we speak of, women should take no public concern therein. I also think that these assemblies should, in preference to all means of forming a constitution, prefer that of delegating the task of draughting it to an assembly elected freely from among the people, and who should be limited to the exercise of that function alone; for sake of perspicuity we shall call such an assembly, a convention. The members of this body, therefore, are to be nominated.
The first assembly may either itself elect these deputies, or choose electors for this purpose. This is the place to revert to the principles we have established in speaking of women. The interest of the members of society is, that every thing should be well conducted; therefore women should not take a direct part in all that is done, but confine themselves to what is best adapted to them; whence I conclude that those assemblies which contain the whole of the citizens, and which we may denominate primitive, because they are the foundation of the edifice, should confine their functions to the nomination of electors. This it may be said is rendering the influence of each citizen very indirect on the formation of laws. I agree, it is so; but it should be understood, that I here speak of a populous nation, spread over a vast territory, and which has not adopted the federative system, but exists in the state of indivisibility. Now the number of deputies to be elected must be necessarily too small for each original assembly to have one; either then the votes of all the assemblies should be collected, which is subject to a great many inconveniencies, or allow an intermediate proportion. Beside the citizens at large cannot be supposed to know generally all those who are properly qualified for such a purpose, and therefore not competent to make the very best choice from knowlege; in which circumstances it would be a good expedient to choose from among the members of the primitive assembly some person worthy of confidence and capable of making a proper selection for the purpose. It will generally happen that the men so chosen will be men of more information than the great mass of the people; better educated, of more comprehensive views, less subject to local prejudices, and will consequently fulfil this function better: this is what may be styled a good aristocracy. So that without being influenced by any example or authority, following the simple light of natural reason, we are now arrived at the formation of a body entrusted with establishing a constitution for society. Let us in like manner examine what this constitution should be, and upon what principles it should be founded.
We shall not here enter into details, which must always be in some degree governed by local circumstances, but enquire after those great principles, which are of an equal and general application. It has already been established, that the executive and legislative powers, should not be united in the same person or persons; let us now determine to whom each should be confided; we shall then enquire how the depositaries of each authority should be appointed or removed, commencing with the legislative power.
No country, I believe, has ever entrusted to a single individual, the exclusive function of making the laws;12 that is to say, to will for society at large, without having any other function: the reason probably is, that when a nation has had sufficient confidence in an individual, to consent that his particular will should be considered as the expression of the general will, it has always allowed him at the same time, to assume sufficient power to carry this will into execution; in such a case he is invested with every power at the same time: this is very dangerous, as we have seen, and many nations have had reason to repent of their having adopted such a course; whereas the other, which appears so singular, would be without any inconvenience, as it respects liberty. Certainly a single man, whose functions consist only in forming laws, without having any power at his disposal, would not be formidable, he might at all times be removed from his place, if it should be deemed necessary; he could not even hope to keep possession of it, but inasmuch as his determinations should conduce to the general welfare. It would then be his interest to give wise decisions, to watch over their execution, to urge the punishment of infractions, as an evidence that the failure of success does not originate in the law, but from the law not being duly executed; for he would be obeyed only as a prudent friend, whose advice is followed as long as advantage is derived from it, not as a master, whose worst orders we are under the necessity of executing;13 thus liberty would be at its height.
Two objections may be made against this idea; the one, that this sole legislator would not possess sufficient power, to cause the laws to be executed; the other, that he could not alone attend to all the immense duties of his station. To this I answer, in the first place, that a legislative body of three or four hundred persons, or of a thousand if you will, has no more real and physical power than a single person, it leaving only the power of opinion, which this individual may in live manner obtain, when invested with public confidence, and when it is determined, that he may be deprived thereof in certain cases, and according to certain forms; but as long as he is in office, his decision should be followed and executed. As to what respects the extent and multitude of his duties, I shall observe, that a well regulated state does not require new laws every day, and that even their multiplicity is a very great evil; beside the lawgiver may have assistants or agents under his direction, instructed in the different parts of his duty, who might explain subjects and facilitate his work. In fact, many monarchs are charged not only with making, but also with executing the law, and are found adequate to this double function.
I shall further add, that it is even much more easy to find a single man of talents, than two hundred, or a thousand; so that with a single lawgiver, it is probable that legislation would be conducted with more knowlege and talents than by an assembly of legislators; and it is certain there would be more connection and unity, which is an important advantage. In short, I believe that nothing solid can be said in favor of the contrary opinion, if it be not: first, that a legislative body composed of a great many members, each having influence in different parts of the territory, will more easily obtain the general confidence, and will more readily be obeyed; secondly, that its members cannot all leave it at the same time, the body may be renewed in parts without producing any interruption or change of system; whereas, when every thing depends on a single man, when he is changed every thing changes with him.
I must acknowlege the force of these two reasons, particularly the last; and besides, I shall not obstinately uphold an extraordinary opinion which may seem paradoxical; consequently I consent that the legislative power shall be confided to an assembly, on condition, however, that its members be appointed only for a short period of time, and all possess the same privileges. We might, if requisite, for the order and maturity of deliberation, divide the assembly into two or three sections, making some little difference in their functions, and the duration of their mission; but these sections in themselves, should be of the same nature, and particularly they should have no right of an absolute negative, against each other. The legislative body should be essentially one, and deliberate collectively, but not contend with itself. All systems which assume the name of balances, are no more than tricks; unless it may be said that they constitute an established civil war.
We are now arrived at the executive power, respecting which I must say, though it be held forth as absolutely indispensible, that it should not altogether be confided to a single person. The only reason which has ever been given in favor of the individuality of the executive, is that a single man is better calculated for action than several men united; a position utterly false. Unity is in willing, not in executing; the proof of which is, that we have but a single head and several members which obey it; and another more direct proof is, that there is no monarch who has not several ministers, and these are the persons who really execute, he only wills.... and often does nothing whatever. This is so true, that in a country organized like England, the king is actually a non-entity, only where he has a share in the legislative power, and if this were but taken away from him, he would be completely useless: the legislative body and ministers would be really the government. As it is, the king in that government is only a superfluous wheel in the machine, augmenting its friction and its expence, answering no other purpose than to fill with the least possible inconvenience, a station fatal to public tranquillity, which every ambitious person would desire to take possession of, if not already occupied, because accustomed to see it exist; but if this habit were, or could be broken, it is evident, that the creation of such a place would not be thought of, since, notwithstanding its existence and vicious influence, whenever public affairs require it, the function of king is disregarded and set aside, since deliberations and decisions, war and peace, are arranged between the council of ministers and parliament, and when one or the other changes, every thing changes, though the king, who truly does nothing, remains the same.
All this is so constant and founded on human nature, that a nation never submitted itself to a monarch with the intention that the executive should be in one, but to be governed by a single will, which has been held prudent to avoid the inconvenience of discordant wills. Now the natural measure to be pursued, in taking this resolution up at a time when society has not yet arrived at perfection, is to give this will, to which it is desirous of submitting, the power of bringing all others to submission, and thence arises absolute monarchy. Such were monarchs when first voluntarily and inconsiderately created: afterwards, it was perceived, that the nation was oppressed or injuriously governed by them; a union was formed, not with the intention of restraining them by open force, because ignorant of the method of so doing, and much less with that of suppressing them, because unacquainted with the means of replacing them by proper substitutes; but being accustomed to entertain a certain respect for them, they entertained the desire of counselling and instructing them, of making fair representations, of pointing out the true interests of the good people, and of persuading them that their personal interests were the same.
This has been attended with more or less success, according to the times, countries, and circumstances, under which it has occurred. But a nation cannot be united for any length of time, nor make remonstrances, supplications, or complaints, without recollecting or perceiving that it has the incontestible and inherent right to give its orders and dictate its will. It has then claimed for itself, or at least for its deputies, the legislative power, and when it has resolved to exercise that power, the monarch was necessarily induced to let them take it, lest they should also demand the executive. Precisely at this point, the two powers which originally were vested in one person, were resumed and distributed among several persons, and the nation was easily persuaded that the executive power would be usefully and peaceably exercised, and might be delegated with safety to a single person, and even made hereditary in his family; the friends of the monarch never losing sight of exercising the power left, to regain what was from necessity relinquished. It is nearly in this way that the institutions of government have been conducted among the nations who have submitted to a monarchical authority; they in the course of time have obtained a national representation, somewhat regular, which consequently becomes a moderate government; and this is the reason, that under such governments the people are only half free, and are every moment in danger of becoming slaves.
However, it is not in the nature of the executive power to be better exercised by a single man, than by several united; nor can the execution of the laws have essentially more need of being confided to a single person than legislation; for the majority of a council of a few members produces an unity of action, the same as a single chief, and dispatch will be equal, if not superior: nor is it always to be desired, that action should be so sudden and rapid. But it may on the contrary be said, that the affairs of a great nation, directed in general by a legislative body, requires in its execution to be conducted in an uniform manner, and according to the same system; now this cannot be expected of a single man; for besides that he is more liable to change his views and principles than a council, when he is absent or changed, all is wanting or changed with him; whereas, the council is only renewed in part, its spirit is really unchangeable, and eternal as the political body. This consideration is certainly of greater importance than that which is so much upheld in favor of the contrary opinion: however, I do not consider it as peremptory.
In matters so complicated, where there are so many things to be considered, so many consequences to be foreseen; the foresight or reason of one cannot be truly decisive. Let us examine the subject a little more intimately, and endeavor to discover in farther details, the consequences resulting from a single chief being the depository of the executive power; we shall then be better enabled to judge of causes.
This single chief can be only hereditary or elective. If he be elected, it is for his life or for a certain period. Let us commence with the last supposition. If the same sagacity and discretion, which had limited the exercise of executive authority to a few years, also requires of him to follow certain forms, and to associate with him certain persons, against whose advice he must not act, and if efficient means be taken to prevent his breaking through these restraints, then without doubt this principal agent will not be inconvenient, his station would not be of such importance, as to render the something wanting always very troublesome; he would probably be chosen from among the men most capable and most respected; he would exercise the office only during that period of life, when the faculties of men are unfolded; he would not be so entirely separated from the other citizens, as to feel an interest distinct from those of the state; he might be changed without commotion, and without every thing's changing with him; nor would he be in reality a single chief, for he would not have the entire disposition of the national power; his authority, therefore, does not correspond with the idea of a monarch; he is only the first magistrate of a free people, which they may continue to be. The more we depart from this supposition, the more we shall see advantages diminish and inconveniencies encrease.
I shall even suppose this same single chief elected in a similar manner for a limited time, and no precaution taken respecting his disposing of the public money and troops, though always under the direction of the legislative power. This office becomes immediately too important to be disposed of without competition; factions are formed, and contentions follow; the avenue of ambition is laid open, and the period of election becomes a period of exasperation; the competitors will themselves become violent; individuals on both sides will endeavor to render themselves formidable, anal the idea of election ceases when power alone operates. When a candidate fails to be elected himself, he will endeavor that the choice shall fall upon an old man, a child, or some silly person, and through that means obtain the disposition of every thing, and the attainment will be held worth the trouble. Capable men are then no more at the head of affairs, and if there should be such a person, it will be an ambitious man more dextrous than his competitors. He holds in his hands all the real power, and it will be employed exclusively for himself: he is too much elevated above his fellow citizens to have an interest in common with them; and he stands only in need of the opportunity to perpetuate his power: the people require tranquillity and happiness, his element is bustle, disorder, contention; war, which rendering his talents necessary, gives him more power; his measures may not be necessary to the interests of his country, as military renown cannot make them prosperous, and external advantages are not required by their internal possessions.... conquest cannot give them quiet: but it becomes impossible now to change this chief for another. This effect is so easily produced in such circumstances, that no man possessed of such power, has ever failed to keep that power during his life;.... or he has been forced from it, at the expence of great public calamity.
We are now arrived at the second supposition, that of a single chief invested with the executive power for life: I have not much to say upon this; it will be perceived that all which I have urged on the preceding cases, is still more applicable to this. Arrived at this point, we must content ourselves to live in a state of convulsion and insecurity; and even to see society itself menaced with dissolution, till the chief is suffered to become hereditary; as has been the case in Holland, and every where else; very fortunate if by chance or the reaction of opposing interests, the succession become constantly and clearly determined; that by being sufficiently moderate and reasonable, the society be not torn to pieces by civil conflicts, nor become a prey to some foreign power, which has so frequently happened. If it be impossible then that great power cannot be confided for a limited period to a single man, without danger of his soon attempting to possess it during his life, it is yet more impossible that several men successively, enjoying power for life, should not include one who was disposed to perpetuate it in his family; and this brings us to consider the effects of hereditary monarchy.
For men who do not reflect, and they are the greatest number, there is nothing worthy of particular attention but that which is rare; much of what is frequently seen has no power in exciting their curiosity or admiration; though in the natural as in the moral world, the phenomena most common are the most wonderful. He who should declare the functions of his coachman or his cook to be hereditary, would be treated as insane; the man who should solemnly determine that the confidence which he reposed in his lawyer, or his physician, should be perpetual in the family of this lawyer or physician.... who should oblige himself and all those who were connected with him, to employ those only or their descendants in the order of primogeniture for ever.... whether children, cripples, or ideots.... wicked or weak.... deranged or dishonored; a man who should do this, would be considered as a fit subject for an hospital of incurable maniacs: yet in obeying a monarch who derives power this way, nothing preposterous presents itself to the great mass of mankind; it is those only that think, who are confounded at human inconsistency.
It is so very difficult to meet with a man capable of governing, who in the course of time is not seduced by power so as to become unworthy of possessing it; it is so much more probable that the children of a man invested with great power will be badly educated and the worst of their kind; it is so improbable, if any one of them should escape the evils of a vicious education, that it should be precisely the eldest; and if even this should happen, his youth, his inexperience, his passions, his indispositions, his old age, fill up so a great portion of his life, during which time it is dangerous to be subject to him; all these circumstances form such a disproportion of chances against a favorable fortune, that it is difficult to conceive how the idea could have originated of incurring so many risks, or become so generally adopted.... or rather that it has not been universally discarded. It is necessary to pursue, as we have done, all the consequences of individual power, to perceive how nations have been led, nay forced, to play this disadvantageous and dangerous game of hazard. We must be very much infatuated with the persuasion that there is a necessity for the unity of power, in order to say, with a great mathematician, and a man of distinguished talents with whom I was acquainted.... "All things calculated, I prefer hereditary power, because it is the easiest method of solving the problem." These words, however, though apparently unmeaning, are profound in the idea which they conceal, for they include the institution of absolute power, and all that can be said in its favor.
Notwithstanding, I would still adopt this conclusion, if hereditary power was subject to no other inconvenience than those which have been stated; but in my opinion, it has another which is insupportable, that of being in its nature unlimited and illimitable; or in other words, the impossibility of circumscribing it within just bounds constantly and peaceably; and it has this further inconvenience, not as a hereditary power, but as a power one and not divided; for the authority of a single person is, as we have seen, essentially progressive; when confined to a limited period of years, it advances to possession for life, and from thence to hereditary power; and even this last state is only the complete developement of its active nature, which will not, after it has acquired full strength, be more easily retarded in its progress; inasmuch as being then in possession of ample means and unrestrained, it will be deemed yet necessary to its being, to overturn all states which may be supposed likely to oppose it. In truth, no hereditary power can be secure where the supremacy of the general will is recognized, for it is in the nature of hereditary succession to perpetuate itself; and that of the will to be temporary and revocable: it is consequently essential to the security of an hereditary monarch, that the principle of national sovereignity be destroyed. It is not merely in the passions of men, but in the nature of things, that this obligation exists, we may at a glance perceive the result, and that there will be an incessant warfare, violent or partial, indirect or open: it may be restrained by the moderation of the monarch, or deferred by his prudence, disguised by his dexterity, diverted by events, or suspended by adventitious circumstances; but it can terminate only in the slavery of the people or the destruction of the throne.... pure monarchy or divided power. To hope for liberty and monarchy, is to expect two things each of which excludes the other; many monarchs, and even citizens, have been ignorant of this truth, but it is not less true, and it is now very well understood, particularly by monarchs.
We should no longer be surprized at what we have noticed, and what Montesquieu himself has remarked of the immorality and corruption of monarchical governments, of their tendency to produce luxury, disorder, vanity, war, conquest, mismanagement of the finances, the depravity of courtiers, and the degradation of the lower classes; their propensity to stifle information, particularly in moral philosophy, and to disseminate through the nation inconstancy, selfishness, and a want of reflection: all these effects must take place, since the hereditary power, having distinct interests from the general good, is obliged as a faction acts in a popular state, to divide and weaken the national power, in order to combat it; to array the nation in different classes, to overcome the one by the other, and to subject them all by illusions, and consequently to produce unhappiness and error in theory and in practice.
We may also perceive why the partisans of monarchy, when occupied with the social organization, could never devise anything else than a system of balances, which, by continually arraying the powers of society against each other, really make enemies of them, always ready to overwhelm and destroy each other, instead of agreeing, as parts of the same whole, mutually co-operating in the means of common interest; it is because they admitted into society two irreconcileable elements, according to which mere compromises or temporary arrangements only could take place, but an intimate union and perfect utility never.
Probably they did not themselves perceive it; but when we see men of talents employed in attempting to solve a problem, and never going beyond an incomplete solution, which does not satisfy the understanding, we may take it for granted, that there is a previous error, which prevents their arriving at truth: it is too often imagined that the passions or the habits of men form their opinions when they are not conformable to reason; but a little more consideration will discover, they more frequently proceed from a want of sufficient reflection, and that a little resolution to think and examine, would bring them to the knowlege of principles which are true, and to the formation of opinions necessarily correct.
But whatever the cause may be, so much error and evil as exists, must necessarily originate in a single cause.... the confiding of national power to a single person.... and I conclude, as I have announced, that the executive power should be confided only to a council, composed of a small number of persons elected for a limited time, and partially renewing itself at fixed periods and numbers; that the legislative power should be entrusted to a more numerous assembly, likewise composed of members chosen for a limited period, and partially renewed every year.
Thus two bodies are established, the one authorised to express the national will, the other to act upon it in the name of the people. These bodies should not be placed parallel to each other, one being consistently preordinate, the other secondary.... for this reason, that we will before we execute; they should not be considered as rivals and placed in opposition to each other, as the second necessarily depends on the first, and action succeeds the will. Their respective interests should not be stipulated, not even such as are usually allowed to gratify vanity, for they have no rights which properly belong to them exclusively; they are derived, being only invested with functions confided to them, and to be exercised for others. They should have no other concerns than the gratification arising from the discharge of their trust in the most effectual manner, and to the advantage and satisfaction of those who had delegated them. These ideas, incompatible with the language of courts, are the determinations of common sense. Now these few assertions of truth solve a great many difficulties, to which too much importance has been generally attached, and shews us at once how the members of this corps should be chosen, how they should be distinguished when there is occasion to do so, and how their differences may be terminated when they occur.
There can be no difficulty in the election of the members of the legislative body; they are numerous, and should be elected from all parts of the territory; they may be chosen by electoral bodies assembled in different districts; this method is well adapted to the choice of two or three of the persons of best qualifications and credit in a district. The punishment of their offences presents no difficulty; their functions are limited to speaking and writing, to suggesting their opinions, to explaining and supporting them with all the reasons they can devise; and they should possess the most unbounded liberty to do so, and in the manner which may appear to them most proper, and without any other responsibility than such as is essential to the maintenance of order in their proceedings. They are, therefore, not accountable for whatever they may say in the exercise of their functions. They are not liable to punishment for any thing, unless it be for acts not forming part of their duties, nor arising out of them, and be treated like all other citizens; and like them, they should in case of the commission of ordinary crimes, be proceeded against in the ordinary manner; always taking care, that accusations of such a nature, should not be feigned nor deprive the state of useful representatives, nor injure the public interests; but above all, they should not possess the power of excluding any of their own members, nor of interdicting them under any pretence from the exercise of the functions for which they were elected.
The same principles do not exactly apply to the executive corps; they are few in number; too few to afford to each of the electoral districts the power of electing one; besides these dispersed electoral bodies, who are well adapted to designate men for the legislature, may not be so competent to judge of the fitness of eight or ten men to conduct the affairs of a nation, which they may be entrusted with. Besides, it must be well considered, that those members of the executive are required to act, to give orders, to exercise effective power, to put the military force in motion, to disburse the public treasure, to create or to suppress offices. They must do all this conformably to the laws and in their spirit. But they may violate their duties or pervert them, and their culpability call for condign punishment. Yet the legislature should not be invested with the authority to inflict this punishment, nor of nominating their judges, nor of deposing them, nor of passing judgment upon them; for as we have said, they should depend on the legislature only as the action follows the will: nevertheless, it does not follow that their dependence should be so passive, as to execute what should not be legitimate. One of these authorities may charge the other, of having acted in an unauthorised manner, that is for not having conformed in its proceedings to the laws; but this last may in its turn accuse the other of having willed or legislated erroneously, that is of having made laws contrary to the constitution, which all the constituted bodies are bound alike to respect. Whence it follows, that these two bodies may contend upon points which neither have a right to determine, but for the peaceable and legal decision of which there should be some provision; without which, this constitution, like many others, would be incomplete, as no one would know the extent or limits of duty, and though it should not be publicly avowed, the force and violence would really be the paramount authority.
These last observations, connected with the preceding, prove that there is still something wanting to the political machine, in order that it may go regularly. It has already a body for willing, and a body for executing that will; it yet requires a preserving power, that is to facilitate and regulate the action of the other two; and in this conservative body, we shall find all that is requisite, to complete the organization of society.
The functions of this power will be: 1. To verify the election of the members of the legislative body, before they take their seats, and to judge of their validity. 2. To take part in the election of the members of the executive corps, either by receiving from the electoral body a list of candidates, from among whom they may choose; or, on the contrary, by sending them a list of those from among whom they may elect.
If the second method be preferred, the constitution may ordain, that when the electoral body shall not meet with a name on the list which they desire, they may demand that it be added thereto, and if a majority of the electoral bodies request it, the conservative body shall be obliged to insert it.
3. To participate in the same manner, and nearly in the same forms, in the nomination of the supreme judges, whether a chief justice and judges of the supreme court, as in the United States of America, or as a member of the tribunal of cassation in France.
4. To pronounce the removal of a member of the executive body, or a vacancy, if any, on the request of the legislature.
5. To decide on cases of complaint against any of the executive body, and in such case to nominate some of its members, according to a pre-determined form, who shall compose a grand jury before the supreme court.
6. To pronounce the unconstitutionality, and consequently the nullity of the acts of the legislative body, or the executive body, on the accusation of either against the other, and their decision to be made absolute by the constitution.
7. To declare, on their application, or on that of the mass of the citizens, in form, and with intermediate time for consideration, when a revision of the constitution shall take place, and consequently to call a convention, ad hoc; all the established authorities remaining, in the mean time, in the same state.
These two last acts of the duty of the conservative body should, before being carried into execution, be submitted to the decision of the nation at large, which should decide thereon in their election districts, by Ayes and Noes; or in electoral bodies nominated for the special purpose.
By the means of these functions vested in a conservative body, I can no longer see an any obstacle to impede the operations of society, no difficulty which cannot be peaceably accommodated; I can discover no case where any citizen can be ignorant whom to obey; nor any circumstance in which there are not legal means to assure the enforcement of the public will, and to repress any resistance whatever, in as much as the power should be exercised, as it is intended, for the general good: while at the same time these functions appear to me so necessary, that in the government of every nation in whose constitution a like conservative body has not been established, it seems manifest to me, that it is abandoned to constant hazard and violence.
This body should be composed of men to continue in the station for life, who could no longer fill any other station in society, and who have no other interest than that of maintaining the peace and happiness of the nation, and enjoying an honorable existence. It would become the retreat and recompense of those who have fulfilled great functions; and this is an advantage not to be despised; for the political department should be so arranged as to give no great temptations to ambition, neither should it be so ungrateful as to neglect great virtues or services, or to deny to talents opportunities of participating in public confidence and honors, without changing the fundamental laws or eluding them.
The members of the conservative body, should the first time be nominated by the convention which formed the constitution, and of which they would become the depositaries; but afterwards the vacancies should be filled by the electoral bodies, from lists of eligible persons, formed by the legislative and executive bodies.
I have been somewhat prolix on this subject of a conservative body, because this institution has had a very recent existence,14 and because it appears to me of the greatest importance. It is in my opinion the keystone of the arch, without which the edifice of society has neither strength nor durability.
Two opposite objections may be made to it; the one, that this body by deciding on matters of difference between the other constituted powers, and presiding in judgment in the most important concerns of the state, would thereby acquire inordinate authority, and become very dangerous to public liberty. To which I answer, this body being composed of men satisfied with the station in which they are placed, have every thing to lose and nothing to gain by any disorder of the state; and having passed the age of the passions and great projects, and without any effective power at their command; they can scarcely do any thing more, than by their decisions afford an appeal to the nation, and give it time and means to manifest its will.
Other persons, on the contrary, will pretend that this body will be but an useless phantom, which every ambitious man may convert to his purposes; and the evidence produced to support this objection, will be, that in France it could not for a moment defend the trust confided to it. To this I answer, that this example proves nothing to the purpose, for it is always impossible to defend liberty in a nation so fatigued by its mighty efforts and misfortunes, that slavery would be preferable to the least exertion of resistance; and such was the disposition of the French at the period when their senate was established; so much so, that they suffered themselves to be deprived thereof without the least murmur, and almost with pleasure.... at least as far as the liberty of the press and individual liberty. I have moreover often said, that nothing can prevent usurpation when once all the active force is invested in one man, as it was by the French constitution in 1799, (year eight,) for the two other consuls were mere cyphers. But if the French had placed their conservative body in their constitution of 1795, (year three,) and in which the executive was really divided, it would have maintained itself with success, between the directory and the legislative body; it would have prevented the violent contests between them in 1797, (18 Fructidor, year five,) and that nation would now enjoy liberty, which has always escaped from it, at the moment when on the point of attaining it.15
This I believe to be the means of solving the problem proposed. Not contemplating the exhibition of a complete plan of a constitution, but simply to describe the principles upon which it may be founded, I shall content myself with these principal points, and not enter into details which may vary without inconvenience, according to local necessities and circumstances. I do not assert, that the principles which I have explained, are practicable every where, and at all times; it may be that there are countries, where the authority of a chief, even the most unlimited, may be necessary; as even the establishment of monks may have been useful in certain circumstances, though bad and absurd taken in the abstract; but I believe, that when desirous of following the soundest dictates of reason and justice, it is nearly so that society would be organized, and that there never will be any secure and durable peace otherwise. I submit this system, if it may be called one, to the meditations of the man of reflection. He will easily perceive the happy consequences of which it is susceptible, and how powerfully it is supported by all that we have before said on the spirit and principle of different governments, and their effects on the riches, power, manners, sentiments, and information of the people. I shall only add; the greatest advantage of moderate and limited authorities, being that of leaving the general will the possibility of forming and making itself known, and the manifestation of this will being the best means of resisting oppression; individual liberty and the liberty of the press, are the two things most indispensable for the happiness and good order of society, and without which all the combinations that can be made in order to establish the best distribution of power, are only vain speculations. But this belongs to the subject of which we are to treat in the following book, and it is time to close this chapter, already too long.
[11.]It is thus, that the convention of 1787, which completed the federative constitution of America, was held; and which definitely fixed its form, eleven years and seventy-five days after the declaration of independence, and nine years and seventy days after the signature of the first act of confederation.
[12.]It is to be understood of the ordinary laws, and not of constitutions; we have already noticed several of the latter kind.
[13.]This office would moreover have the advantage, that the ridiculous idea of rendering its functions hereditary, would never take place.... the absurdity would then be too evident.
[14.]Did the author know any thing of the old Pennsylvania constitution and its council of censors?
[15.]It must be moreover observed, that the manner of nominating and replacing the French senators, was very different from that which I have proposed. It was vicious in its principle, in their constitution of the year VIII. (1799,) and afterwards rendered more so by new attributes and illegal dispositions of these same senators, which they call the constitution of their empire.