LAW, LEGISLATION, CODES. 



397 



advanced ; and, if they encroach on previous rights, | 

 the aid of courts may be enlisted in opposition 

 to them. Law, on the contrary, and, on this 

 point, the philosophical and historical jurispru- 

 dence agree, is founded, not upon any will, but on 

 the discovery of a right already existing, which is to 

 be drawn either from the internal legislation of hu- 

 nuin reason, or the historical development of the na- 

 tion. The law, too, is not irrevocable, nor can any, 

 sanction make it so ; but as long as it exists, it is of 

 irresistible and universal force. Finally, the judicial 

 decision is binding only on those who have occasion- 

 ed its application by resorting to judicial proceedings; 

 but, for such, it is an unchangeable rule, and no 

 power whatever can subvert it. The different 

 character of these public functions must not only be 

 obvious in their external forms, so as to be under- 

 stood by every one who would know his duty, but 

 the very nature of the provisions which they require 

 for their operation is so different as to furnish suffi- 

 cient ground for making the executive, legislative 

 and judicial departments distinct in their organiza- 

 tion. But it is a great error of modern (constitutional) 

 politics, that they have conceived of this division of 

 duties, as if all connexion and mutual influence of the 

 three powers must be done away; hence the election 

 of judges by the people, and a legislation which 

 could be neither urged nor restrained by the execu- 

 tive (no veto, or only a limited one). This very 

 naturally produced political dissensions, which could 

 only end in the ruin of the state. But, if the execu- 

 tive power is what it ought to be, nothing can be 

 done in the commonwealth without its orders ; and 

 both the legislative and judiciary departments must 

 receive from it the impulse of their activity. The 

 convocation of the legislative body, and the proposal 

 of laws, belong to it; and without its consent, no law 

 can become obligatory upon the people. The execu- 

 tion and promulgation of the laws necessarily rest 

 with the executive, and are necessarily joined with 

 an unlimited veto. On the other hand, the influence 

 of the executive government on the legislative should 

 be merely a negative influence, and on the adminis- 

 tration of justice, a formal one ; i. e. no law should 

 be passed without its consent, and the judges should 

 receive their offices from the executive, while the 

 executive is to see that they do their duty ; but how 

 they shall speak cannot be prescribed to them. (See 

 Courts.) This is the only means by which unity and 

 harmony, in the action of the public authorities, can 

 be maintained, while every branch of power is sup- 

 ported by the other, and kept in the right path. The 

 entire separation of these three powers is an error 

 which, wherever it has existed, in ancient or modern 

 times, has brought upon the people as great suffer- 

 ings, as if they had been subject to an arbitrary and 

 unlimited dominion. 



4. The historico-philosophical view of the sources 

 of laws leads us to results concerning the organiza- 

 tion of the legislative authorities, which, it is to be 

 regretted, have been often too much overlooked. 

 The consequence of the unreasonable notion, that 

 legislation is an act of the will, was an idea that the 

 general will of the people might be ascertained, if 

 all the different interests to be found in the people 

 could be brought together ; or, as this is, in fact, im- 

 possible, it was considered sufficient to unite, in re- 

 presentative assemblies, the most important interests 

 those of agriculture, commerce, and manufactures. 

 In respect to the administration of government, and 

 the judicious choice of means to promote the high 

 ends of the state, this sort of representation may be 

 found sufficient. But, when the question is respect- 

 ing the establishment of laws, in the highest sense of 

 the word, the most comprehensive intelligence is re- 



quired. A popular representation, for this purpose, 

 should not represent the fluctuating, capricious will 

 of the people, influenced, as it is, by interest, preju- 

 dice, and passion. On the contrary, it should be a 

 mirror to reflect all the intellectual power of the 

 nation. Consequently the representatives should be 

 chosen from the most learned, and enlightened, and 

 experienced men, who have the best opportunity to 

 become acquainted with the wants of the people 

 and the defects of the existing laws. That it cannot 

 be concluded that a man possesses these qualifica- 

 tions, because he owns a piece of ground, is very 

 clear. And it is equally manifest, that it is a great 

 mistake to esteem such a possession a security for 

 good intentions. Disinterestedness is no consequence 

 of wealth, but of the habit of self-denial ; and he 

 learns it much more perfectly who has been inured 

 to it from his youth, than one who has, perhaps, 

 never known a want. To regard landed proprietors 

 as the proper citizens, and others as mere tolerated 

 tenants of the state, is an absurdity. Landed property 

 is the offspring of the state, and not vice versa ; and 

 the state cannot so distribute the soil, that it may 

 depend on the will of the owner to deprive others of 

 the means of subsistence. The more a natural, dis- 

 tinct interest separates landed proprietors, and, in- 

 deed, in some sense, the cultivators of the soil also, 

 from the rest of the community, the more should it 

 be made a main object of public institutions to pre- 

 vent one party from gaining a decided and perman- 

 ent superiority. But political institutions now have 

 frequently the opposite tendency a circumstance 

 which, in some places, has had a remarkable influ- 

 ence on taxation. The second consequence, result- 

 ing from the view of legislation here proposed, is, 

 that the number of representatives needs not be pro- 

 portionate to the number of the people. In a large 

 state, a larger number of deputies is not needed to 

 represent the intellectual capacity of the people ; 

 and a small state, if it regards the ends of legislation, 

 properly needs as many persons in its representative 

 assembly as the larger. For it should comprehend 

 so many different kinds of knowledge and talent, 

 that no subject may arise on which a judicious deci- 

 sion cannot be made by the body, by the aid of per- 

 sons within itself; and that the laws may all have 

 the stamp of moderation, arising from due attention to 

 all interests, which often leads, though by no means 

 necessarily, to half measures. This is the greatest 

 difficulty for smaller states, and they can only prevent 

 it by accommodating their legislation to that of their 

 neighbours. The management of the public affairs 

 of communities, from the village up to the state, 

 cannot be called legislation, in the sense in which we 

 are now considering the subject : these may be suita- 

 bly administered by even the smallest state. But if 

 a small state undertakes to establish a peculiar sys- 

 tem of civil rights, of legal procedure, of penal laws, 

 &c., it will receive less advantage from such an in- 

 sulated system than of injury, from the bars to inter- 

 course with its neighbours, which must result from 

 such institutions. Hence it is altogether desirable 

 that, in states which are only minor divisions of one 

 nation, having the same religion, manners, and culti- 

 vation, the municipal, laws, and the institutions for 

 their administration, should as far as possible, be 

 made common to the whole, although matters of 

 political administration might be kept distinct. Thus 

 they might secure to themselves the advantages en- 

 joyed by larger states, in the preparation of like laws 

 by experienced colleges (as the French council), or by 

 juridical commissions, so as to be accommodated to all 

 the existing institutions. Representative assemblies 

 would be freed from the embarrassment of deliberating 

 and deciding upon topics, of which perhaps few, per- 



