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THE SUBJECT CONCLUDED.—THE EXECUTIVE POWER IS MORE
EASILY CONFINED WHEN IT IS ONE.
ANOTHER great advantage, and which one would not at first expect, in this unity of the public power in England,—in this union, and, if I may so express myself, in this coacervation, of all the branches of the executive authority,—is the greater facility it affords of restraining it.
In those states where the execution of the laws is intrusted to several hands, and to each with different titles and prerogatives, such division, and the changeableness of measures which must be the consequence of it, constantly hide the true cause of the evils of the state: in the endless fluctuation of things, no political principles have time to fix among the people : and public misfortunes happen, without ever leaving behind them any useful lesson.
At some times military tribunes, and at others consuls, bear an absolute sway: sometimes patricians usurp every
Duke, though surrounded, as well as the above-named generals, by a victorious army, and by allies, in conjunction with whom he had carried on such a successful war, did not even hesitate to surrender his commission. He knew that all his soldiers were inflexibly prepossessed in favour of that power against which he must have revolted : he knew that the same prepossessions were deeply rooted in the minds of the whole nation, and that every thing among them concurred to support the same power : he knew that the very nature of the claims he must have set up would instantly have made all his officers and captains turn themselves against him, and, in short, that, in an enterprise of this nature, the arm of the sea he had to repass was the smallest of the obstacles he would have to encounter.
The other event I shall mention here, is that of the revolution of 1689. If the long-established power of the the crown had not beforehand prevented the people from accustoming themselves to fix their eyes on some particular citizens, and in general had not prevented all men in the state from attaining too considerable a degree of power and greatness, the expulsion of James II. might have been followed by events similar to those which took place at Rome after the death of Cæsar.
[This remark is just, and the wisdom of the Convention Parliament, in the contract which they made with William of Orange before they UNITY OF THE EXECUTIVE POWER.
every thing, and at other times those who are called nobles :* at one time the people are oppressed by decemvirs, and at another by dictators.
Tyranny, in such states, does not always beat down the fences that are set around it; but it leaps over them. When men think it confined to one place, it starts up again in another;-it mocks the efforts of the people, not because it is invincible, but because it is unknown ;-seized by the arm of a Hercules, it escapes with the changes of a Proteus.
But the indivisibility of the public power in England has constantly kept the views and efforts of the people directed to one and the same object; and the permanence of that power has also given a permanence and a regularity to the precautions they have taken to restrain it.
Constantly turned towards that ancient fortress, the royal power, they have made it for seven centuries the object of their fear; with a watchful jealousy they have considered all its parts; they have observed all its outlets; they have even pierced the earth to explore its secret avenues and subterraneous works.
United in their views by the greatness of the danger, they regularly formed their attacks. They established their works, first at a distance; then brought them successively nearer; and, in short, raised none but what served afterwards as a foundation or defence to others.
After the Great Charter was established, forty successive confirmations strengthened it. The act called the Petition of Right, and that passed in the sixteenth year of Charles the First, then followed: some years after, the Habeas Corpus
conferred upon him the powers of Sovereignty (which, in fact, they did, for he had no inherent right to the Crown), can never be too highly or too gratefully extolled.]—Ed.
* The capacity of being admitted to all places of public trust (at length gained by the plebeians) having rendered useless the old distinction between them and the patricians, a coalition was then effected between the great plebeians, or commoners, who got into those places, and the ancient patricians. Hence a new class of men arose, who were called nobiles and nobilitas. These are the words by which Livy, after that period, constantly distinguishes those men and families who were at the head of the state.
act was established ; and the Bill of Rights at length made its appearance. In fine, whatever the circumstances may have been, the people always had, in their efforts, that inestimable advantage of knowing with certainty the general seat of the evils they had to defend themselves against; and each calamity, each particular eruption, by pointing out some weak place, served to procure a new bulwark for public liberty.
To conclude in a few words ;—the executive power in England is formidable, but then it is for ever the same ; its resources are vast, but their nature is at length known; it has been made the indivisible and inalienable attribute of one person alone; but then all other persons, of whatever rank or degree, become really interested to restrain it within its proper bounds.*
A SECOND PECULIARITY. THE DIVISION OF THE LEGISLATIVE POWER.
The second peculiarity which England, as an individual state and a free state, exhibits in its constitution, is the division of its legislature. That the reader may be more sensible of the advantages of this division, he is desired to attend to the following considerations.
It is, without doubt, absolutely necessary, for securing the constitution of a state, to restrain the executive power : but it is still more necessary to restrain the legislative. What the former can only do by successive steps (I mean subvert the laws), and through a longer or shorter train of enterprises, the latter can do in a moment. As its bare will can give being to the laws, so its bare will can also annihilate them;
* This last advantage of the greatness and indivisibility of the executive power, viz. the obligation it lays upon the greatest men in the state sincerely to unite in a common cause with the people, will be more amply discussed hereafter, when a more particular comparison between the English government and the republican form shall be offered to the reader.
DIVISION OF THE LEGISLATIVE POWER.
and, if I may be permitted the expression, the legislative power can change the constitution, as God created the light.
In order, therefore, to ensure stability to the constitution of a state, it is indispensably necessary to restrain the legislative authority. But here we must observe a difference between the legislative and the executive powers. The latter may be confined, and even is the more easily so, when undivided; the legislative, on the contrary, in order to its being restrained, should absolutely be divided. For, whatever laws it may make to restrain itself, they never can be, relatively to it, any thing more than simple resolutions : as those bars which it might erect to stopits ownmotions must then be within it, and rest upon it, they can be no bars. In a word, the same kind of impossibility is found, to fix the legislative power when it is one, which Archimedes objected against his moving the earth.*
Nor does such a division of the legislature only render it possible for it to be restrained, since each of those parts into which it is divided can then serve as a bar to the motions of the others, but it even makes it to be actually so restrained. If it has been divided into only two parts, it is probable that they will not in all cases unite, either for doing or undoing : -if it has been divided into three parts, the chance that no changes will be made is greatly increased. Nay more; as a kind of point of honour will naturally take place between these different parts of the legislature, they will therefore be led to offer to each other only such propositions as will at least be plausible; and all very prejudicial changes will thus be prevented, as it were, before their birth.
If the legislative and executive powers differ so greatly with regard to the necessity of their being divided, in order to their being restrained, they differ no less with regard to the other consequences arising from such division.
The division of the executive power necessarily introduces actual oppositions, even violent ones, between the different parts into which it has been divided; and that part which in the issue succeeds so far as to absorb, and unite in itself, all the others, immediately sets itself above the laws. But those oppositions which take place, and which the public
* He wanted a spot whereupon to fix his instruments.
good requires should take place, between the different parts of the legislature, are never any thing more than oppositions between contrary opinions and intentions : all is transacted in the regions of the understanding; and the only contention that arises is wholly carried on with those inoffensive weapons, assents and dissents, ayes and noes.
Besides, when one of these parts of the legislature is so successful as to engage the others to adopt its proposition, the result is, that a law takes place which has in it a great probability of being good : when it happens to be defeated, and sees its proposition rejected, the worst that can result from it is, that a law is not made at that time; and the loss which the state suffers thereby, reaches no farther than the temporary setting-aside of some more or less useful speculation.
In a word, the result of a division of the executive power is either a more or less speedy establishment of the right of the strongest, or a continued state of war :*—that of a division of the legislative power, is either truth, or general tranquillity.
The following maxims will therefore be admitted. That the laws of a state may be permanent, it is requisite that the legislative power should be divided ;—that they may have weight, and continue in force, it is necessary that the executive power should be one.
If the reader should conceive any doubt as to the truth of the above observations, let him cast his eyes on the history of the proceedings of the English legislature down to our times, and he will readily find a proof of them. He would be surprised to see how little variation there has been in the political laws of this country, especially during the last hundred years; though, it is most important to observe, the legislature has been as it were in a continual state of action, and (no dispassionate man will deny) has generally promoted the public good. Nay, if we except the act passed under
* Every one knows the frequent hostilities that took place between the Roman senate and the tribunes. In Sweden there have been continual contentions between the king and the senate, in which they have overpowered each other by turns. And in England, when the executive power became double, by the king allowing the parliament to have a perpetual and independent existence, a civil war almost immediately followed.