Book V
Of Legislative and Executive Power

CHAPTER XXI

OF THE COMPOSITION OF GOVERNMENT

Houses of assets. - This institution unjust.
- Deliberate proceeding the proper antidote. 
- Separartion of legislative and executive power 
considered. - Superior importance of the latter.
 - Functions of ministers.

ONE Of the articles which has been most eagerly insisted on, by the advocates of complexity in political institutions, is that of 'checks, by which a rash proceeding may be prevented, and the provisions under which mankind have hitherto lived with tranquility, may not be reversed without mature deliberation'. We will suppose that the evils of monarchy and aristocracy are, by this time, too notorious to incline the speculative enquirer to seek for a remedy, in either of these. 'Yet it is possible, without the institution of privileged orders, to find means that may answer a similar purpose in this respect. The representatives of the people may be distributed, for example, into two assemblies; they may be chosen with this particular view, to constitute an upper and a lower house, and may be distinguished from each other either by various qualifications of age or fortune, or by being chosen by a greater or smaller number of electors, or for a shorter or longer term.'

To every inconvenience that experience can produce, or imagination suggest, there is probably an appropriate remedy. This remedy may either he sought in a more strict prosecution of the principles of reason and justice, or in artificial combinations encroaching upon those principles. Which are we to prefer? No doubt, the institution of two houses of assembly is contrary to the primary dictates of reason and justice. How shall a nation be governed? Agreeably to the opinions of its inhabitants, or in opposition to them? Agreeably to them undoubtedly. Not, as we cannot too often repeat, because their opinion is a standard of truth, but because, however erroneous that opinion may be, we can do no better. There is no effectual way of improving the institutions of any people, but by enlightening their understandings. He that endeavors to maintain the authority of any sentiment, not by argument, but by force, may intend a benefit, but really inflicts an extreme injury. To suppose that truth can be instilled through any medium but that of its intrinsic evidence is a flagrant and pernicious error. He that believes the most fundamental proposition through the influence of authority does not believe a truth, but a falsehood. The proposition itself he does not understand, for thoroughly to understand it is to perceive the degree of evidence with which it is accompanied; is to know the full meaning of its terms, and, by necessary consequence, to perceive in what respects they agree or disagree with each other. All that he believes is that it is very proper he should submit to usurpation and injustice.

It was imputed to the late government of France that, when they called an assembly of notables in 1787, they contrived, by dividing the assembly into seven distinct corps, and not allowing them to vote otherwise than in these corps, that the vote of fifty persons should be capable of operating, as if they were a majority, in an assembly of one hundred and forty-four. It would have been still worse if it had been ordained that no measure should be considered as the measure of the assembly, unless it were adopted by the unanimous voice of all the corps: eleven persons might then, in voting a negative, have operated as a majority of one hundred and forty four. This may serve as a specimen of the effects of distributing a representative national assembly into two or more houses. Nor should we suffer ourselves to be deceived under the pretense of the innocence of a negative in comparison with an affirmative. In a country in which universal justice was already established, there would be little need of a representative assembly. In a country into whose institutions error has insinuated itself, a negative upon the repeal of those errors is the real affirmative.

The institution of two houses of assembly is the direct method to divide a nation against itself. One of these houses will, in a greater or less degree, be the asylum of usurpation, monopoly and privilege. Parties would expire, as soon as they were born, in a country where opposition of sentiments, and a struggle of interests, were not allowed to assume the formalities of distinct institution.

Meanwhile, a species of, check perfectly simple, and which appears sufficiently adequate to the purpose, suggests itself in the idea of a slow and deliberate proceeding, which the representative assembly should prescribe to itself. Perhaps no proceeding of this assembly should have the force of a general regulation, till it had undergone five or six successive discussions in the assembly, or till the expiration of one month from the period of its being proposed. Something like this is the order of the English house of commons, nor does it appear to be, by any means, among the worst features of our constitution. A system like this would be sufficiently analogous to the proceedings of a wise individual, Who certainly would not wish to determine upon the most important concerns of his life without a severe examination; and still less would omit this examination if his decision were destined to be a rule for the conduct, and a criterion to determine upon the rectitude, of other men.

Perhaps, as we have said, this slow and gradual proceeding ought, in no instance, to be dispensed with, by the national representative assembly. This seems to he the true line of separation between the functions of the assembly as such and the executive power, whether we suppose the executive separate, or simply place it in a committee of the representative body. A plan of this sort would produce a character of gravity and good sense, eminently calculated to fix the confidence of the citizens. The mere votes of the assembly, as distinguished from its acts and decrees, might serve as an encouragement to the public functionaries, and as affording a basis of expectation, respecting the speedy cure of those evils of which the public might complain; but they should never be allowed to be pleaded as the complete justification of any action. A precaution like this would not only tend to prevent the fatal consequences of any precipitate judgment of the assembly within itself, but of tumult and disorder from without. An artful demagogue would find it more easy to work up the people into a fit of momentary insanity than to retain them in it for a month, in opposition to the efforts of their real friends to undeceive them. Meanwhile, the consent of the assembly to take their demand into consideration might reasonably be expected to moderate their impatience.

Scarcely any plausible argument can be adduced in favor of what has been denominated by political writers a division of powers. Nothing can seem less reasonable than to prescribe any positive limits to the topics of deliberation in an assembly adequately representing the people; or peremptorily to forbid them the exercise of functions the depositories of which are placed under their inspection and censure. Perhaps, upon any emergence, totally unforeseen at the time of their election, and uncommonly important, they would prove their wisdom by calling upon the people to elect a new assembly, ,with a direct view to that emergence. But the emergence, as we shall have occasion more fully to observe in the sequel, cannot with any propriety be prejudged, and a rule laid down for their conduct, by a body prior to, or distinct from, themselves. The distinction of legislative and executive powers, however intelligible in theory, will by no means authorize their separation in practice.

Legislation, that is, the authoritative enunciation of abstract or general propositions, is a function of equivocal nature and will never be exercised in a pure state of society, or a state approaching to purity, but with great caution and unwillingness. It is the most absolute of the functions of government, and government itself is a remedy that inevitably brings its own evils along with it. Administration, on the other hand, is a principle of perpetual application. So long as men shall see reason to act in a corporate capacity, they will always have occasions of temporary emergency for which to provide. In proportion as they advance in social improvement, executive power will, comparatively speaking, become everything, and legislative nothing. Even at present, can there be any articles of greater importance than those of peace and war, taxation and the selection of proper periods for the meeting of deliberative assemblies, which, as was observed in the commencement of the present book, are articles of temporary regulation?¹ Is it decent, can it be just, that these prerogatives should be exercised by any power less than the supreme, or be decided by any authority but that which most adequately represents the voice of the nation? This principle ought, beyond question, to be extended universally. There can be no just reason for excluding the national representative from the exercise of any function, the exercise of which, on the part of the society, is, in any case, necessary.

The functions therefore of ministers and magistrates, commonly so called, do not relate to any particular topic respecting which they have a right exclusive of the representative assembly. They do not relate to any supposed necessity for secrecy; for secrecy, in political affairs, as we have had occasion to perceive,² is rarely salutary or wise; and secrets of state will commonly he found to consist of that species of information relative to the interests of a society, respecting which the chief anxiety of its depositaries is that it should be concealed from the members of that society. It is the duty of the assembly to desire information without reserve, for themselves and the public, upon every subject of general importance; and it is the duty of ministers and others to communicate such information, though it should not be expressly desired. The utility therefore of ministerial functions being, in a majority of instances, less than nothing in these respects, there are only two classes of utility that remain to them; particular functions, such as those of financial detail or minute superintendence, which cannot be exercised unless by one or a small number of persons;³ and measures proportioned to the demand of those necessities which will not admit of delay, and subject to the revision and censure of the deliberative assembly. The latter of these classes will perpetually diminish as men advance in improvement; nor can anything politically be of greater importance than the reduction of that discretionary power in an individual which may greatly affect the interests, or fetter the deliberations of the many.

Footnotes