In this cafe the ftate would be no longer a monarchy, but a kind of republican, though not a free government. But as the perfon intrufted with the executive power cannot abuse it without bad counsellors, and fuch as hate the laws as minifters, though the laws favour them as fubjects; these men may be examined and punished. An advantage which this government has over that of Gnidus, where the law allowed of no fuch thing as calling the Amymones to an account, even after their administration † ; and therefore the people could never obtain any fatisfaction for the injuries done them.

*

Though in general the judiciary power ought not to be united with any part of the legislative, yet this is liable to three exceptions, founded on the particular interest of the party accused.

The great are always obnoxious to popular envy; and were they to be judged by the people, they might be in danger from their judges, and would moreover be deprived of the privilege which the meaneft fubject is poffeffed of in a free state, of being tried by their peers. The nobility for this reafon ought not to be cited before the ordinary courts of judicature, but before that part of the legislature which is compofed of their own body.

It is poffible that the law, which is clear-fighted in one fenfe, and blind in another, might in fome cases be too severe. But as we have already observed, the national judges are no more than the mouth that pronounces the words of the law, mere paffive beings incapable of moderating either its force or rigour. That part therefore of the legiflative body which we have just now observed to be a neceffary tribunal on another occafion, is also a neceffary tribunal in this; it belongs to its fupreme authority to moderate the law in favour of the law itself, by mitigating the fentence.

* These were magiftrates chosen annually by the people. See Stephen of Byzantium.

It was lawful to accufe the Roman magistrates after the expiration of their several offices. See in Dionyf. Halicarn. 1. 9. the affair of Genucus the tribune.

It might also happen, that a fubject intrufted with the adminiftration of public affairs, might infringe the rights of the people, and be guilty of crimes which the ordinary magiftrates either could not, or would not punish. But in general the legislative power cannot judge; and much lefs can it be a judge in this particular cafe, where it reprefents the party concerned, which is the people. It can only therefore impeach. But before what court fhall it bring its impeachment? Muft it go and abase itself before the ordinary tribunals which are its inferiors, and being compofed moreover of men who are chofen from the people as well as itself, will naturally be fwayed by the authority of so powerful an accufer? No: In order to preserve the dignity of the people, and the fecurity of the subject, the legislative part, which reprefents the people, muft bring in its charge before the legiflative part which reprefents the nobility, who have neither the fame interefts nor the fame paffions.

Here is an advantage which this government has over most of the ancient republics, where there was this abuse, that the people were at the fame time both judge and accufer.

The executive power, pursuant to what has been already faid, ought to have a fhare in the legislature by the power of rejecting, otherwife it would foon be ftripped of its prerogative. But fhould the legislative power ufurp a fhare of the executive, the latter would be equally undone.

If the prince were to have a fhare in the legislature by the power of refolving, liberty would be loft. But as it is neceffary he should have a fhare in the legislature for the fupport of his own prerogative, this fhare must confift in the power of rejecting.

The change of government at Rome was owing to this, that neither the fenate, who had one part of the executive power, nor the magistrates, who were intrufted with the other, had the right of rejecting, which was entirely lodged in the people.

Here then is the fundamental conftitution of the government we are treating of. The legislative body being compofed of two parts, one checks the other,

by the mutual privilege of rejecting. They are both checked by the executive power, as the executive is by the legislative,

These three powers fhould naturally form a ftate of repofe or inaction. But as there is a neceffity for movement in the course of human affairs, they are forced to move, but ftill to move in concert.

As the executive power has no other part in the legislative than the privilege of rejecting, it can have no fhare in the public debates. It is not even neceflary that it fhould propofe, because as it may always difapprove of the refolutions that shall be taken, it may likewife reject the decifions on those proposals which were made against its will.

In fome ancient commonwealths, where public debates were carried on by the people in a body, it was natural for the executive power to propofe and debate with the people, otherwife their refolutions must have been attended with a strange confusion.

Were the executive power to ordain the levying of public money, otherwife than by giving its confent, liberty would be at an end; because it would become legislative in the most important point of legislation.

If the legislative power was to fettle the fubfidies, not from year to year, but for ever, it would run the risk of lofing its liberty, because the executive power would no longer be dependent; and when once it was poffeffed of fuch a perpetual right, it would be a matter of indifference, whether it held it of itself, or of another. The fame may be faid if it should fix, not from year to year, but for ever, the fea and land forces with which it is to intruft the executive power.

To prevent the executive power from being able to opprefs, it is requifite that the armies, with which it is intrufted, fhould confift of the people, and have the same spirit as the people, as was the cafe at Rome, till the time of Marius. To obtain this end, there are only two ways, either that the perfons employed in the army fhould have fufficient property to anfwer for their conduct to their fellow-fubjects, and be enlifted only for a year, as was customary at Rome; or if there fhould be

a ftanding army, compofed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as foon as it pleased; the foldiers fhould live in common with the rest of the people; and no feparate camp, barracks, or fortrefs, should be fuffered.

When once an army is established, it ought not to depend immediately on the legislative, but on the executive power; and this from the very nature of the thing; its bufinefs confifting, more in action than in deliberation.

From a manner of thinking that prevails amongst mankind, they set a higher value upon courage than timoroufnefs, on activity than prudence, on ftrength than counsel. Hence, the army will ever despise a fenate, and respect their own officers. They will naturally flight the orders fent them by a body of men whom they look upon as cowards, and therefore unworthy to command them. So that as foon as the army depends on the legislative body, the government becomes a military one; and if the contrary has ever happened, it has been owing to fome extraordinary circumstances. It is because the army was always kept divided; it is because it was composed of several bodies, that depended each on their particular province; it is because the capital towns were ftrong places, defended by their natural fituation, and not garrifoned with regular troops. Holland, for inftance, is ftill fafer than Venice; fhe might drown, or starve the revolted troops; for as they are not quartered in towns capable of furnishing them with neceffary fubfiftence, this fubfiftence is of courfe pre

carious.

Whoever fhall read the admirable treatise of Tacitus will find that it is on the manners of the Germans from them the English have borrowed the idea of their political government. This beautiful fyftem was invented firft in the woods.

"De minoribus rebus principes confultant, de majoribus " omnes; ita tamen ut ea quoque, quorum penes plebem arbitrium eft, apud principes pertractentur."

As all human things have an end, the ftate we are speaking of will lofe its liberty, it will perish. Have not Rome, Sparta, and Carthage perifhed? It will perish when the legislative power shall be more corrupted than the executive.

It is not my bufinefs to examine whether the English actually enjoy this liberty or not. It is fufficient for my purpose to obferve, that it is established by their laws; and I enquire no further.

Neither do I pretend by this to undervalue other go vernments, nor to say that this extreme political liberty ought to give uneafinefs to those who have only a moderate share of it. How should I have fuch a defign, I who think that even the excess of reason is not always defirable, and that mankind generally find their account better in mediums than in extremes?

Harrington, in his Oceana, has alfo inquired into the highest point of liberty to which the conftitution of a ftate may be carried. But of him indeed it may be faid, that, for want of knowing the nature of real liberty, he bufied himfelf in pursuit of an imaginary one, and that he built a Chalcedon, though he had a Byzantium before his eyes.

THE

CHA P. VII.

Of the monarchies we are acquainted with.

'HE monarchies we are acquainted with have not, like that we have been speaking of, liberty for their direct view their only aim is the fubject's, the ftate's, and the prince's glory. But from this glory, there refults a fpirit of liberty, which in thofe ftates may perform as great things, and may contribute as much perhaps to happiness as liberty itself.

Here the three powers are not diftributed and founded on the model of the conftitution above-mentioned; they have each a particular diftribution, according to which they border more or lefs upon political liberty; and if they did not border upon it, monarchy would degenerate into defpotic government.

VOL. I.

R