resolutions, and then the state would fall into anarchy; or that these resolutions would be taken by the executive power, which would render it absolute.

It would be need less for the legislative body to continue always assembled. This would be troublesome to the representative, and moreover would cut out too much work for the executive power, so as to take off its attention to its office, and oblige it to think only of defending its own prerogatives and the right it has to execute. . . .

The legislative body should not meet of itself. For a body is supposed to have no will but when it is met and besides, were it not to meet unanimously, it would be impossible to determine which was really the legislative body, the part assembled, or the other. And if it had a right to prorogue itself, it might happen never to be prorogued; which would be extremely dangerous, in case it should ever attempt to encroach on the executive power. Besides, there are reasons (some more proper than others) for assembling the legislative body: it is fit, therefore, that the executive power should regulate the time of meeting, as well as the duration, of those assemblies, according to the circumstances and exigences of a state, known to itself. . . .

But, if the legislative power, in a free state, has no right to stay the executive, it has a right, and ought to have the means, of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi and the Ephori gave no account of their administration.

But, whatever may be the issue of that examination, the legislative body ought not to have a power of arraigning the person, nor, of course, the conduct, of him who is entrusted with the executive power. His person should be sacred, because, as it is necessary, for the good of the state, to prevent the legislative body from rendering themselves arbitrary, the moment he is accused or tried there is an end of liberty.

In this case, the state would be no longer a monarchy, but a kind of republic, though not a free government. But, as the person, intrusted with the executive power, cannot abuse it without bad counsellors, and such as hate the laws as ministers, though the laws protect them, as subjects these men may be examined and punished.

It might also happen, that a subject, intrusted with the administration of public affairs, may infringe the rights of the people, and be guilty of crimes which the ordinary magistrates either could not, or would not, punish. But, in general, the legislative power cannot try causes; and

much less can it try this particular case, where it represents the party aggrieved, which is the people. It can only, therefore, impeach. But before what court shall it bring its impeachment? Must it go and demean itself before the ordinary tribunals, which are its inferiors, and being composed moreover of men who are chosen from the people as well as itself, will naturally be swayed by the authority of so powerful an accuser? No: in order to preserve the dignity of the people and the security of the subject, the legislative part which represents the people must bring in its charge before the legislative part which represents the nobility, who have neither the same interests nor the same passions.

Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative.

These three powers should naturally form a state of repose or inaction : but, as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert. . . .

To prevent the executive power from being able to oppress, it is requisite that the armies with which it is intrusted should consist of the people, and have the same spirit as the people, as was the case at Rome till the time of Marius. To obtain this end, there are only two ways; either that the persons employed in the army should have sufficient property to answer for their conduct to their fellow-subjects, and be enlisted only for a year, as was customary at Rome; or, if there should be a standingarmy composed chiefly of the most despicable part of the nation, the legislative power should have a right to disband them as soon as it pleased; the soldiers should live in common with the rest of the people; and no separate camp, barracks, or fortress, should be suffered.

When once an army is established, it ought not to depend immediately on the legislative, but on the executive, power; and this from the very nature of the thing, its business consisting more in action than deliberation. . . .

In perusing the admirable treatise of Tacitus on the manners of the Germans, we find it is from that nation the English have borrowed the idea of their political government. This beautiful system was invented first in the woods.

As all human things have an end, the state we are speaking of will lose its liberty, will perish. Have not Rome, Sparta, and Carthage,

perished? It will perish when the legislative power shall be more corrupt than the executive.

It is not my business to examine whether the English actually enjoy Sufficient it is for my purpose to observe, that it is

this liberty, or not.

established by their laws; and I inquire no farther.

M. [Charles de Secondat] de Montesquieu, The Spirit of Laws (Complete Works, I, Dublin, 1777), Book XI, ch. vi., 198–212 passim.

52. "The Law in all our Provinces” (1757)

BY EDMUND BURKE

Bibliography as in No. 44 above.

T has been an old complaint, that it is not easy to bring American

make them refund to the injured people the wealth raised by their extortions. Against such governors at present there are three kinds of remedy; the privy council, the king's bench, and the parliament. The council on just cause of complaint may remove the governor; the power of the council seems to extend no further. The king's bench may punish the governors for their offences committed in America, as if done in England. The power of parliament is unlimited in the ways of enquiry into the crime, or of punishing it. The first of these remedies. can never be sufficient to terrify a governor grown rich by iniquity, and willing to retire quietly, though dishonourably, to enjoy the fruits of it. The king's bench, or any other merely law court, seems equally insufficient for this purpose, because offences in government, though very grievous, can hardly ever be so accurately defined as to be a proper object of any court of justice, bound up by forms and the rigid letter of the law. The parliament is equal to every thing; but whether party, and other bars to a quick and effectual proceeding may not here leave the provinces as much unredressed as in the other courts, I shall not take upon me to determine.

The law in all our provinces, besides those acts which from time to time they have made for themselves, is the common law of England, the old statute law, and a great part of the new, which in looking over their laws I find many of our settlements have adopted, with very little

choice or discretion. And indeed the laws of England, if in the long period of their duration they have had many improvements, so they have grown more tedious, perplexed, and intricate, by the heaping up many abuses in one age, and the attempts to remove them in another. These infant settlements surely demanded a more simple, clear, and determinate legislation, though it were of somewhat an homelier kind; laws suited to the time, to their country, and the nature of their new way of life. Many things still subsist in the law of England, which are built upon causes and reasons that have long ago ceased; many things are in those laws suitable to England only. But the whole weight of this illagreeing mass, which neither we nor our fathers were well able to bear, is laid upon the shoulders of these colonies, by which a spirit of contention is raised, and arms offensive and defensive are supplied to keep up and exercise this spirit, by the intricacy and unsuitableness of the laws to their object. And thus in many of our settlements the lawyers have gathered to themselves the greatest part of the wealth of the country; men of less use in such establishments than in more settled countries, where the number of people naturally sets many apart from the occupations of husbandry, arts, or commerce. Certainly our American brethren might well have carried with them the privileges which make the glory and happiness of Englishmen, without taking them encumbered with all that load of matter, perhaps so useless at home, without doubt so extremely prejudicial in the colonies.

[Edmund Burke], An Account of the European Settlements in America (London, 1760), II, 302–304.

53. The Effect of Royal Instructions (1764)

BY LATE GOVERNOR THOMAS POWNALL

Pownall was the most considerate and liberal of the Massachusetts royal governors (1757-1760), and was later governor of South Carolina. He thought and wrote much on colonial administration. — Bibliography: Palfrey, New England, V, 153–176; Channing and Hart, Guide, § 134. For earlier principles of English control, see Contemporaries, I, ch. vii.

UPON

[PON such review it will appear, under this first general head, in various instances, that the two great points which the Colonists labour to establish, is the exercise of their several rights and privileges,

as founded in the rights of an Englishman; and secondly, as what they suppose to be a necessary measure in a subordinate government, the keeping in their own hands the command of the revenue, and the pay of the officers of government, as a security of their conduct towards them.

Under the first head come all the disputes about the King's instructions, and the governor's power, as founded on them.

The King's commission to his governor, which grants the power of government, and directs the calling of a legislature, and the establishing courts, at the same time that it fixes the governor's power, according to the several powers and directions granted and appointed by the commission and instructions, adds, "and by such further powers, instructions, and authorities, as shall, at any time hereafter, be granted or appointed you, under our signet or sign manual, or by our order in our privy council." It should here seem, that the same power which framed the commission, with this clause in it, could also issue its future orders and instructions in consequence thereof: but the people of the colonies say, that the inhabitants of the colonies are entitled to all the privileges of Englishmen; that they have a right to participate in the legislative power; and that no commands of the crown, by orders in council, instructions, or letters from Secretaries of State, are binding upon them, further than they please to acquiesce under such, and conform their own actions thereto; that they hold this right of legislature, not derived from the grace and will of the crown, and depending on the commission which continues at the will of the crown; that this right is inherent and essential to the community, as a community of Englishmen and that therefore they must have all the rights, privileges, and full and free exercise of their own will and liberty in making laws, which are necessary to that act of legislation, - uncontrouled by any power of the crown, or of the governor, preventing or suspending that act; and, that the clause in the commission, directing the governor to call together a legislature by his writs, is declarative and not creative; and therefore he is directed to act conformably to a right actually already existing in the people, &c.

When I speak of full uncontrouled independent powers of debate and result, so far as relates to the framing bills and passing them into laws, uncontrouled by any power of the crown or of the governor, as an essential property of a free legislature; I find some persons in the colonies imagine, that I represent the colonies as claiming a power of