Dear Sir,
TO demonstrate the nccessity of two assemblies in the legislature, as well as of a third branch in it, to defend the executive authority; it may be laid down as a first principle, that neither liberty nor justice can be secured to the individuals of a nation, nor its prosperity promoted, but by a fixed constitution of government, and stated laws, known and obeyed by all. — Mr. Turgot, indeed, censures the "falsity of the notion, so frequently repeated by almost all republican writers, 'that liberty consists in being subject only to the laws;' as if a man could be free while oppressed by an unjust law. This would not be true, even if we could suppose, that all laws were the work of an assembly of the whole nation; for certainly every individual has his rights, of which the nation cannot deprive him, except by violence, and an unlawful use of the general power."
We often hear and read of free states, a free people, a free nation, a free country, a free kingdom, and even of free republics; and we understand, in general, what is intended, although every man may not be qualified to enter into philosophical disquisitions concerning the meaning of the word liberty, or to give a logical definition of it.
Our friend Dr. Price has distinguished very well, concerning physical, moral, religious, and civil liberty: and has defined the last to be the power of a civil society to govern itself, by its own discretion, or by laws of its own making, by the majority, in a collective body, or by fair representation. In every free state, every man is his own legislator. Legitimate government consists only in the dominion of equal laws, made with common consent, and not in the dominion of any men over other men."
Mr. Turgot, however, makes the doctor too great a compliment, at the expence of former English writers, when he represents him as "the first of his countrymen who have given a just idea of liberty, and shewn the falsity, so often repeated by almost all republican writers, that liberty consists in being subject only to the laws."
I shall chearfully agree with Mr. Turgot, that it is very possible that laws, and even equal laws made by common consent, may deprive the minority of the citizens of their rights. A society, by a majority, may govern itself, even by equal laws, that is by laws to which all, majority and minority, are equally subject, so as to oppress the minority. It may establish an uniformity in religion; it may restrain trade; it may confine personal liberty of all equally, and against the judgment of many, even of the best and wisest, without reasonable motives, use, or benefit. We may go farther, and say, that a nation may be unanimous in consenting to a law restraining their natural liberty, property, and commerce, and their moral and religious liberties too, to a degree that may be prejudicial to the nation and every individual in it. A nation of Catholics might unanimously consent to prohibit labour upon one half the days in the year, as feast days. The whole American nation might unanimously consent to a Sunday law, and a warden act, which should deprive them of the use of their limbs one day in seven. A nation may unanimously agree to a navigation act, which should shackle the commerce of all. Yet Dr. Price's definition of civil liberty is as liable to this objection as any other. These would all be equal laws, made with common consent: these would all be acts of legitimate government. To take in Mr. Turgot's idea, then, we must add to Dr. Price's ideas of equal laws by common consent, this other — for the general interest, or the public good. But it is generally supposed, that nations understand their own interest better than another; and therefore they may be trusted to judge of the public good: and in all the cases above supposed, they will be as free as they desire to be; and therefore may with great propriety be called free nations, and their constitutions free republics. There can be no way of compelling nations to be more free than they choose to be.
But Mr. Turgot has mistaken the sense of republican writers, especially of the English ones. What republican writers he had in view I know not. There is none that I remember, of any name, who has given so absurd a definition of liberty. His countryman Montesquieu, who will scarcely be denominated a republican writer, has said something the most like it; but it is manifest that his meaning was confined to equal laws, made by common consent. Although there may be unjust and unequal laws, obedience to which would be incompatible with liberty; yet no man will contend, that a nation can be free, that is not governed by fixed laws. All other government than that of permanent known laws, is the government of mere will and pleasure, whether it be exercised by one, a few, or many. Republican writers in general, and those of England in particular, have maintained the same principle with Dr. Price, and have said, that legitimate governments, or well-ordered commonwealths, or well-constituted governments, were those where the laws prevailed; and have always explained their meanings to be, equal laws made by common consent, or the general will — that is to say, made by the majority, and equally binding upon majority and minority. As it is of importance to rescue the good old republican writers from such an imputation, let me beg your patience while we look into some of them.
Aristotle says, that "a government where the laws alone should prevail, would be the kingdom of God." This indeed shows that this great philosopher had much admiration of such a government: but is not the assertion that Mr. Turgot condemns, viz. that liberty consists in being subject to the laws only.
Aristotle says too, in another place, "Order is law, and it is more proper that law should govern, than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws." These too are very just sentiments, but not a formal definition of liberty.
Livy too speaks of happy, prosperous, and glorious times, when "Imperia legum potentiora fuerunt quam hominum." But he no where says that liberty consists in being subject only to the legum imperio.
Sidney says, "No sedition was hurtful to Rome, until, through their prosperity, some men gained a power above the laws."
In another place he tells us too, from Livy, that some, whose ambition and avarice were impatient of restraint, complained that "leges rem surdam esse, inexorabilem, salubriorem inopi quam potenti."
And in another, that "no government was thought to be well constituted, unless the laws prevailed against the commands of men." But he has no where defined liberty to be subjection to the laws only.
Harrington says, "Government de jure, or according to ancient prudence, is an art, whereby a civil society of men is instituted and pre served upon the foundation of common interest, or, to follow Aristotle and Livy, it is an empire of laws and not of men. And government, to define it according to modern prudence, or de facto, is an art, by which some man, or some few men, subject a city or a nation, and rule it according to his or their private interest; which, because the laws in such cases are made according to the interest of a man, or a few families, may be said to be the empire of men and not of laws."
Harrington, Politicaster, scene 2, agrees, that law proceeds from the will of man, whether a monarch or people; and that this will must have a mover; and that this mover is interest: but the interest of the people is one thing — it is the public interest; and where the public interest governs, it is a government of laws, and not of men: the interest of a king, or of a party, is another thing — it is a private interest; and where private interest governs, it is a government of men, and not of laws. If, in England, there has ever been any such thing as a government of laws, was it not magna charta? and have not our kings broken magna charta thirty times? Did the law govern when the law was broken? or was that a government of men? On the contrary, hath not magna charta been as often repaired by the people? and, the law being so restored, was it not a government of laws, and not of men? Why have our kings, in so many statutes and oaths, engaged themselves to govern by law, if there were not in kings a capacity of governing otherwise? It is true, that laws are neither made by angels, nor by horses, but by men. The voice of the people is as much the voice of men, as the voice of a prince is the voice of a man; and yet the voice of the people is the voice of God, which the voice of a prince is not. The government of laws, said Aristotle, is the government or God. In a monarchy, the laws, being made according to the interest of one man, or a few men, must needs be more private and partial than suits with the nature of justice; but in a commonwealth, the laws, being made by the whole people, must come up to the public interest, which is common right and justice — and if a man know not what is his own interest, who should know it? and that which is the interest of the most or greatest number of particular men, being summed up in the common vote, is the public interest.
Sidney says, "Liberty consists solely in an independency on the will of another; and, by a slave, we understand a man who can neither dispose of his person or goods, but enjoys all at the will of his master." And again, "As liberty consists only in being subject to no man's will, and nothing denotes a slave but a dependence upon the will of another; if there be no other law in a kingdom but the will of a prince, there is no such thing as liberty."
Mr. Turgot might have perceived in these writers, that a government of laws and not of men, was intended by them as a description of a commonwealth, not a definition of liberty. There may be various degrees of liberty established by the laws, and enjoyed by the citizens, in different commonwealths; but still the general will, as well as the general interest, as far as it is understood by the people, prevails in all that can be denominated free: as the society governs itself, it is free, according to the definition of Dr. Price. The enquiry of these writers, in such passages, was not into the highest point of liberty, or greatest degree of it, which might be established by the general will, and the common sense of interest, in their results or laws. They have taken it for granted, that human nature is so fond of liberty, that, if the whole society were consulted, a majority would never be found to put chains upon themselves, by their own act and voluntary consent.
But all men, as well as republican writers, must agree, that there can be no uninterrupted enjoyment of liberty, nor any good government, in society, without laws, or where standing laws do not govern. In despotic states, in simple monarchies, in aristocracies, in democracies, in all possible mixtures of these, the individual enjoys continually the benefit of law, as he does those of light and air, although, in most of those governments, he has no security for the continuance of it. If the laws were all repealed at once, in any great kingdom, and the event made known suddenly to all, there would scarcely a house remain in possession of its present inhabitant, in the great cities.
The great question therefore is, What combination of powers in society, or what form of government, will compel the formation of good and equal laws, an impartial execution, and faithful interpretation of them, so that the citizens may constantly enjoy the benefit of them, and be sure of their continuance. The controversy between Mr. Turgot and me is — whether a single assembly of representatives be this form. He maintains the affirmative. I am for the negative: because such an assembly will, upon the first day of its existence, be an aristocracy; in a few days, or years at least, an oligarchy; and then it will soon divide into two or three parties, who will soon have as many armies; and, when the battle is decided, the victorious general will govern without or with the advice of any council or assembly, as he pleases: or, if the assembly continues united, they will in time exclude the people from all share even in elections, and make the government hereditary in a few families. In order to be fully convinced of this, we must take an extensive view of the subject; and the first enquiry should be, what kind of beings men are? You and I admire the fable of Tristram Shandy more than the fable of the Bees, and agree with Butler rather than Hobbes. It is weakness rather than wickedness which renders men unfit to be trusted with unlimited power. The passions are all unlimited; nature has left them so: if they could be bounded, they would be extinct; and there is no doubt they are of indispensable importance in the present system. They certainly increase too, by exercise, like the body. The love of gold grows faster than the heap of acquisition: the love of praise increases by every gratification, till it stings like an adder, and bites like a serpent; till the man is miserable every moment when he does not snuff the incense: ambition strengthens at every advance, and at last takes possession of the whole soul so absolutely, that the man sees nothing in the world of importance to others, or himself, but in his object. The subtlety of these three passions, which have been selected from all the others because they are aristocratical passions, in subduing all others, and even the understanding itself, if not the conscience too, until they become absolute and imperious masters of the whole mind, is a curious speculation. The cunning with which they hide themselves from others, and from the man himself too; the patience with which they wait for opportunities; the torments they voluntarily suffer for a time, to secure a full enjoyment at length; the inventions, the discoveries, the contrivances they suggest to the understanding, sometimes in the dullest dunces in the world, if they could be described in writing, would pass for great genius.
We are not enough acquainted with the physical or metaphysical effects they may have on our bodies or minds, to be able to explain the particular reason why every instance of indulgence strengthens and confirms the subsequent emotions of desire. The cause has been hitherto too deep, remote, and subtle, for the search of corporeal or intellectual microscopes; but the fact is too decided to deceive or escape our observation. Men should endeavour at a balance of affections and appetites, under the monarchy of reason and conscience, within, as well as at a balance of power without. If they surrender the guidance, for any course of time, to any one passion, they may depend upon finding it, in the end, an usurping, domineering, cruel tyrant. They were intended by nature to live together in society, and in this way to restrain one another, and in general are very good kind of creatures; but they know each other's imbecility so well, that they ought never to lead one another into temptation. The passion that is long indulged, and continually gratified, becomes mad; it is a species of delirium; it should not be called guilt, but insanity: but who would trust his life, liberty, and property, to a madman, or an assembly of them? it would be safer to confide in knaves. Five hundred or five thousand together, in an assembly, are not less liable to this extravagance than one. The nation that commits its affairs to a single assembly, will assuredly find that its passions and desires augment as fast as those of a king; and therefore such a constitution must be essentially defective.
Others have seen this quality in human nature through a more gloomy medium.
Machiavel says, those who have written on civil government lay it down as a first principle, and all historians demonstrate the same, that whoever would found a state, and make proper laws for the government of it, must presume that all men are bad by nature; and that they will not fail to shew that natural depravity of heart, whenever they have a fair opportunity; and, though possibly it may lie concealed for a while, on account of some secret reason, which does not then appear to men of small experience, yet time, which is therefore justly called the father of truth, commonly brings it to light in the end. Machiavel's translator remarks, that although this seems a harsh supposition, does not every Christian daily justify the truth of it, by confessing it before God and the world? and are we not expressly told the same in several passages of the holy scriptures, and in all systems of human philosophy?
Montesquieu says, "Constant experience shews us, that every man invested with power is apt to abuse it: he pushes on, till he comes to something that limits him. Is it not strange, though true, to say, that virtue itself has need of limits? To prevent the abuse of power, it is necessary, that, by the very disposition of things, power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits.
Swift. So endless and exorbitant are the desires Of men, that they will grasp at all, and can form no scheme of perfect happiness with less. It is hard to recollect one folly, infirmity, or vice, to which a single man is subjected, and from which a body of commons, collective or representative (and he might have added a body of nobles) can be wholly exempt.
Junius. Laws are intended, not to trust to what men will do, but to guard against what they may do.
Beccaria. Ogni uomo si fa centro di tutte le combinazioni del globo.
Rochefaucault. The ambitious deceive themselves, when they propose an end to their ambition; for that end, when attained, becomes a means.
De Lolme. Experience evinces, that the happiest dispositions are not proof against the allurements of power, which has no charms but as it leads on to new advances. Authority endures not the very idea of restraint; nor does it cease to struggle, till it has beaten down every boundary.
Hobbes, Mandeville, Rochefaucault, have drawn still more detestable pictures; and Rousseau, in his Inequalities among Mankind, gives a description of a civilized heart, too black and horrible to be transcribed.
Even our amiable friends, those benevolent Christian philosophers. Dr. Price and Dr. Priestley, acquaint us, that they are constrained to believe human nature no better than it should be. The latter says, there is no power on earth but has grown exorbitant, when it has met with no controul.
The former. "Such are the principles that govern human nature; such the weakness and folly of men; such their love of domination, selfishness, and depravity, that none of them can be raised to an elevation above others, without the utmost danger. The constant experience of the world has verified this, and proved that nothing intoxicates the human mind so much as power. In the establishment, therefore, of civil government, it would be preposterous to rely on the discretion of any men. A people will never oppress themselves, or invade their own rights; but if they trust the arbitrary will of a body or succession of men, they trust enemies."
Shall we say that all these philosophers were ignorant of human nature? With all my soul, I wish it were in my power to quote any passages in history or philosophy, which might demonstrate all these satires on our species to be false. But the phenomena are all in their favour; and the only question to be raised with them is, whether the cause is wickedness, weakness, or insanity? In all events, we must agree, that human nature is not fit to be trusted with Mr. Turgot's system, of all authority in a single assembly.
A single assembly will never be a steady guardian of the laws, if Machiavel is right, when he says, Men are never good but through necessity: on the contrary, when good and evil are left to their choice, they will not fail to throw every thing into disorder and confusion. Hunger and poverty may make men industrious, but laws only can make them good; for, if men were so of themselves, there would be no occasion for laws; but, as the case is far otherwise, they are absolutely necessary. After the Tarquins were dead, who had been such a check upon the nobility, some other expedient was wanting to have the same effect; so that, after much confusion and disor-der, and many dangerous contests between the patricians and plebeians, certain officers, called tribunes, were created for the security of the latter; who, being vested with such privileges and authority as enabled them to become arbiters betwixt those two estates, effectually curbed the insolence of the former:" or, in the language of Dr. Franklin, the people insisted upon hitching a yoke of cattle behind the waggon, to draw up hill, when the patricians before should attempt to go too fast: or, in the stile of Harrington, the commons, finding the patricians disposed to divide the cake unequally, demanded the privilege of choosing.
If Harrington's authority is not of great weight with some men, the reasons he assigns in support of his judgment are often eternal, and unanswerable by any man. In his Oceana he says, "Be the interest of popular government right reason, a man does not look upon reason as it is right or wrong in itself, but as it makes for him or against him: wherefore, unless you can shew such orders of a government, as, like those of God in nature, shall be able to constrain this or that creature to shake off that inclination which is more peculiar to it, and take up that which regards the common good or interest; all this is to no more end, than to persuade every man, in a popular government, not to carve for himself of that which he likes best or desires most, but to be mannerly at the public table, and give the best from himself to decency and the common interest. But that such orders may be established, as may, nay must, give the upper hand in all cases to common right and interest, notwithstanding the nearness that sticks to every man in private, and this in a way of equal certainty and facility, is known even to girls; being no other than those which are of common practice with them in diverse cases. For example: Two of them have a cake, yet undivided, which was given between them. That each of them, therefore, might have that which is due, "Divide," says one, "and I will choose; or let me divide, and you shall choose." If this be but once agreed upon, it is enough; for the one dividing unequally, loses, in regard that the other takes the better half; wherefore she divides equally, and so both have right. And thus, what great philosophers are disputing upon in vain, is brought to light by two harmless girls; even the whole mystery of a commonwealth, which lies only in dividing and choosing."
Now, if all authority is to be collected into one central assembly, it will have the whole power of division and choice; and we may easily conjecture what division and choice it will be. It will soon have possession of all the cakes, loaves, and fishes. Harrington proceeds: "Nor has God, if his works in nature be understood, left so much to mankind to dispute upon, as who shall divide and who choose, but distributed them for ever into two orders; whereof the one has the natural right of dividing, and the other of choosing. For example: A commonwealth is but a civil society of men; let us take any number of men, as twenty, and immediately make a commonwealth. Twenty men, if they be not all idiots, perhaps if they be, can never come so together, but there will be such a difference in them, that about a third will be wiser, or at least less foolish, than all the rest. These, upon acquaintance, though it be but small, will be discovered, and (as stags that have the largest heads) lead the herd: for while the six, discoursing and arguing one with another, shew the eminence of their parts, the fourteen discover things that they never thought on, or are cleared in diverse truths that formerly perplexed them: wherefore, in matters of common concernment, difficulty, or danger, they hang upon their lips, as children upon their fathers; and the influence thus acquired by the six, the eminence of whose parts are found to be a stay and comfort to the fourteen, is the authority of the fathers — auctoritas patrum. Wherefore this can be no other than a natural aristocracy, diffused by God throughout the whole body of mankind, to this end and purpose; and therefore such as the people have not only a natural, but a positive obligation to make use of as their guides; as where the people of Israel are commanded to take wise men, and understanding, and known among their tribes, to be made rulers over them. The six then approved of, as in the present case, are the senate; not by hereditary right, or in regard to the greatness of their estates only, which would tend to such power as would force or draw the people; but by election for their excellent parts, which tends to the advancement of the influence of their virtue or authority; that leads the people. Wherefore the office of the senate is not to be commanders, but counsellors of the people; and that which is proper for counsellors is first to debate, and afterwards to give advice in the business whereon they have debated; whence the decrees of the senate are never laws, nor so called — senatus consulta; and these, being maturely framed, it is their duty to propose to the people: wherefore the senate is no more than the debate of the commonwealth. But to debate is to discern, or put a difference between things, that, being alike, are not the same; or it is separating and weighing this reason against that, and that reason against this; which is dividing.
"The senate then having divided, who shall choose? Ask the girls; for if she that divided must have chosen also, it had been little worse for the other, in case she had not divided at all, but kept the whole cake to herself; in regard that, being to choose too, she divided accordingly.
"Wherefore, if the senate have any further power than to divide, the commonwealth can never be equal. But, in a commonwealth consisting of a single council, there is no other to choose than that which divided: whence it is, that such a council fails not to scramble, that is, to be factious; there being no dividing of the cake, in that case, but among themselves: nor is there any other remedy, but to have another council to choose. The wisdom of the few may be the light of mankind; but the interest of the few is not the profit of mankind, nor of a commonwealth: wherefore, seeing we have granted interest to be reason, they must not choose, lest they put out their light. But as the council dividing consists of the wisdom of the commonwealth, so the assembly or council choosing should consist of the interest of the commonwealth; as the wisdom of the commonwealth is in the aristocracy, so the interest of the commonwealth is in the whole body of the people: and whereas this, in case the commonwealth consists of a whole nation, is too unwieldy a body to be assembled, this council is to consist of such a representative as may be equal, and so constituted as it can never contract any other interest than that of the whole people. But, in the present case, the six dividing, and the fourteen choosing, must of necessity take in the whole interest of the twenty. Dividing and choosing, in the language of a commonwealth, is debating and resolving; and whatever, upon debate of the senate, is proposed to the people, and resolved by them, is enacted by the authority of the fathers, and by the power of the people — auctoritate patrum et jussu populi; which concurring, make a law."
Upon these principles, and to establish a method of enacting laws that must of necessity be wise and equal, the people of most of the United States of America agreed upon that division of the legislative power into two houses, the house of representatives and the senate, which has given so much disgust to Mr. Turgot. Harrington will shew us, equally well, the propriety and necessity of the other branch, the governor: but before we proceed to that, it may be worth while to observe the similitude between this passage, and some of those sentiments and expressions of Swift, which were quoted in a former letter; and there is in the Idea of a Patriot King, written by his friend Lord Bolingbroke, a passage to the same purpose, so nobly expressed, that I cannot forbear the pleasure of transcribing it. "It seems to me, that, in order to maintain the moral system of the universe at a certain point, far below that of ideal perfection (for we are made capable of conceiving what we are not capable of attaining), it has pleased the Author of Nature to mingle, from time to time, among the societies of men, a few, and but a few, of those on whom he has been graciously pleased to confer a larger proportion of the etherial spirit, than, in the ordinary course of his providence, he bestows on the sons of men. These are they who engross almost the whole reason of the species. Born to direct, to guide, and to preserve, if they retire from the world their splendour accompanies them, and enlightens even the darkness of their retreat. If they take a part in public life, the effect is never indifferent: they either appear the instruments of divine vengeance, and their course through the world is marked by desolation and oppression, by poverty and servitude; or they are the guardian angels of the country they inhabit, studious to avert the most distant evil, and to procure peace, plenty, and the greatest of human blessings — liberty."
If there is then, in society, such a natural aristocracy as these great writers pretend, and as all history and experience demonstrate, formed partly by genius, partly by birth, and partly by riches, how shall the legislator avail himself of their influence for the equal benefit of the public? and how, on the other hand, shall he prevent them from disturbing the public happiness? I answer, by arranging them all, or at least the most conspicuous of them, together in one assembly, by the name of a senate; by separating them from all pretensions to the executive power; and by controuling, in the legislature, their ambition and avarice, by an assembly of representatives on one side, and by the executive authority on the other. Thus you will have the benefit of their wisdom, without fear of their passions. If among them there are some of Lord Bolingbroke's guardian angels, there will be some of his instruments of divine vengeance too: the latter will be here restrained by a three-fold tie; by the executive power, by the representative assembly, and by their peers in the senate. But if these were all admitted into a single popular assembly, the worst of them might in time obtain the ascendancy of all the rest. In such a single assembly, as has been observed before, almost the whole of this aristocracy will make its appearance; being returned members of it by the election of the people: these will be one class. There will be another set of members, of middling rank and circumstances, who will justly value themselves upon their independence, their integrity, and unbiassed affection to their country, and will pique themselves upon being under no obligation. But there will be a third class, every one of whom will have his leader among the members of the first class, whose character he will celebrate, and whose voice he will follow; and this party, after a course of time, will be the most numerous. The question then will be, whether this aristocracy in the house will unite or divide? and it is too obvious, that destruction to freedom must be the consequence equally of their union or of their division. If they unite generally in all things, as much as they certainly will in respecting each others wealth, birth, and parts, and conduct themselves with prudence, they will strengthen themselves by insensible degrees, by playing into each others hands more wealth and popularity, until they become able to govern elections as they please, and rule the people at discretion. An independent member will be their aversion; all their artifices will be employed to destroy his popularity among his constituents, and bring in a disciple of their own in his place.
But if they divide, each party will, in a course of time, have the whole house, and consequently the whole state, divided into two factions, which will struggle in words, in writing, and at last in arms, until Cæsar or Pompey must be emperor, and entail an endless line of tyrants on the nation. But long before this catastrophe, and indeed through every scene of the drama, the laws, instead of being permanent, and affording constant protection to the lives, liberties, and properties of the citizens, will be alternately the sport of contending factions, and the mere vibrations of a pendulum. From the beginning to the end it will be a government of men, now of one set, and then of another; but never a government of laws.
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