CHAPTER 11|Document 2
James Harrington, Commonwealth of Oceana 56--611656
But seeing they that make the laws in commonwealths are but men, the main question seems to be how a commonwealth comes to be an empire of laws and not of men; or how the debate or result of a commonwealth is so sure to be according unto reason, seeing they who debate and they who resolve be but men. "And as often as reason is against a man, so often will a man be against reason."
This is thought to be a shrewd saying, but will do no harm. For be it so that reason is nothing but interest, there be divers interests and so divers reasons.
As first, there is private reason, which is the interest of a private man.
Secondly, there is reason of state, which is the interest (or "error," as was said by Solomon) of the ruler or rulers; that is to say, of the prince, of the nobility, or of the people.
Thirdly, there is that reason which is the interest of mankind or of the whole. [Says Richard Hooker:]
Now if we see even in those natural agents that want sense, that as in themselves they have a law which directs them in the means whereby they tend to their own perfection, so likewise that another law there is which touches them as they are sociable parts united into one body, a law which binds them each to serve unto others' good and all to prefer the good of the whole before whatsoever their own particular, as when stones or heavy things forsake their ordinary wont or center and fly upwards as if they heard themselves commanded to let go the good they privately wish and to relieve the present distress of nature in common.
There is a common right, law of nature, or interest of the whole which is more excellent, and so acknowledged to be by the agents themselves, than the right or interest of the parts only. "Wherefore, though it may be truly said that the creatures are naturally carried forth to their proper utility or profit, that ought not to be taken in too general a sense, seeing divers of them abstain from their own profit either in regard of those of the same kind or at least of their young."
Mankind, then, must either be less just than the creature[s] or acknowledge also his common interest to be common right. And if reason be nothing else but interest, and the interest of mankind be the right interest, then the reason of mankind must be right reason. Now compute well, for if the interest of popular government come the nearest unto the interest of mankind, then the reason of popular government must come the nearest unto right reason.
But it may be said that the difficulty remains yet. For 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 show 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 himself of that which he 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 the common right or interest, notwithstanding the nearness of that which 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 that are of common practice with them in divers cases. For example, two of them have a cake yet undivided which was given between them that each of them therefore may have that which is due. "Divide," says one to the other, "and I will choose, or let me divide, and you shall choose." If this be but once agreed upon, it is enough, for the divider dividing unequally loses in regard that the other takes the better half. Wherefore, she divides equally and so both have right. "O the depth of the wisdom of God!" and yet "by the mouths of babes and sucklings hath he set forth his strength." That which great philosophers are disputing upon in vain is brought unto light by two silly girls, even the whole mystery of a commonwealth, which lies only in dividing and choosing. 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 forever 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 forthwith 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 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 show the eminence of their parts, the fourteen discover things that they never thought on or are cleared in divers truths which had formerly perplexed them. Wherefore in matter 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 is found to be a stay and comfort to the fourteen, is Authoritas Patrum, the authority of the fathers. 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 of the greatness of their estates only, which would tend to such power as might force or draw the people, but by election for their excellent parts which tend 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 counselors of the people. And that which is proper unto counselors is, first, to debate the business whereupon they are to give advice and, afterward, to give advice in the business whereupon they have debated. Whence the decrees of the senate are never laws, nor so called, but Senatus Consulta, and these being maturely framed, it is their duty, Ferre ad Populum, to propose in the case 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 other dividing of the cake in that case but among themselves.
Nor is there any 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 it 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 consist 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 can never contract any other interest than that of the whole people. The manner whereof being such as is best shown by exemplification, I remit to the model [presented in the second part of the work]. 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 whatsoever upon debate of the senate is proposed unto the people and resolved by them is enacted Auctoritate Patrum Et Jussu Populi, by the authority of the fathers and the power of the people, which concurring make a law.
But the law being made, says Hobbes, "is but words and paper without the hands and swords of men." Wherefore as those two orders of a commonwealth, namely the senate and the people, are legislative, so of necessity there must be a third to be executive of the laws made, and this is the magistracy; in which order with the rest being wrought up by art, the commonwealth consists of the senate proposing, the people resolving, and the magistracy executing. Whereby, partaking of the aristocracy as in the senate, of the democracy as in the people, and of monarchy as in the magistracy, it is complete. Now there being no other commonwealth but this in art or nature, it is no wonder if Machiavelli has showed us that the ancients held this only to be good. But it seems strange to me that they should hold that there could be any other; for if there be such a thing as pure monarchy, yet that there should be such a one as pure aristocracy or pure democracy is not in my understanding. But the magistracy both in number and function is different in different commonwealths; nevertheless, there is one condition of it that must be the same in every one or it dissolves the commonwealth where it is wanting. And this is no less than that as the hand of the magistrate is the executive power of the law, so the head of the magistrate is answerable to the people that his execution be according to the law, by which Hobbes may see that the hand or sword that executes the law is in it and not above it.
The Founders' Constitution
Volume 1, Chapter 11, Document 2
The University of Chicago Press
Easy to print version.