The Constitution of England

Chapter III

153 u c h a p t e r i i i u A second Peculiarity.—The Division of the Legislative Power. The second peculiarity which England, as an undivided State and a free State, exhibits in its Constitution, is the division of its Legislature. But, in order to make the reader more sensible of the advantages of this division, it is necessary to desire him 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 enterprizes, the latter does in a moment. As its bare will can give being to the laws; so its bare will can also annihilate them: and, if I may be permitted the expression ,—the Legislative power can change the Constitution, as God created the light. In order therefore to insure 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 Executive powers. The latter may be confined, and even is the more easily so, whenundivided: 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 stop its own motions, must then be within it, and rest upon it, they can be no bars. In a word, the same kind 154 book ii of impossibility is found, to fix the Legislative power, when it is one, which Archimedes objected against his moving the Earth (a). 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, isthereby greatly increased. Nay more; as a kind of point of honour will naturallytakeplacebetween 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 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 (a) He wanted a spot whereupon to fix his instruments. [[There are several classical sources for the statement attributed to the mathematician of Syracuse, Archimedes (ca. 287–212 b.c.e.), that he could transport the earth if only he could find a fixed point to locate his instruments. Descartes invoked the statement in his 1641 Meditations on First Philosophy, meditation II.1.]] chapter iii 155 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...