Posted by: Democratic Thinker | January 15, 2015

Whether a Government of Laws or of Men

Background of the American Revolution

 
 
In 1658, following the conclusion of the English Civil War, James Harrington publishes a defense to criticism of his political treatise—Oceana (1656)—titled Prerogative of Popular Government, a two volume work.

First, That Law must equally proceed from Will, that is either from the Will of the whole People, as in a Commonwealth; from the Will of one Man, as in an Absolute, or from the Will of a few Men, as in a regulated Monarchy,

THE
FIRST BOOK,
CONTAINING

The first Preliminary of OCEANA, inlarg’d, interpreted, and vindicated from all such Mistakes or Slanders as have been alledg’d against it under the notion of Objections. A full Answer to all such OBJECTIONS as have hitherto been made against OCEANA.

 

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CHAP. II.

Whether a Commonwealth he rightly defind to be a Government of Laws and not of Men, and a Monarchy to be the Government of some Man, or a few Men, and not of Laws?

James Harrington.

THAT part of the Preliminaries which the Prevaricator, as is usual with him, recites in this place falsly and fraudulently, is thus: Relation had to these two times (that of Antient and that of Modern Prudence) the one, as is computed by JANOTTI, ending with the Liberty of Rome, the other beginning with the Arms of CÆSAR (which extinguishing Liberty, became the Translation of Antient into Modern Prudence, introduc’d in the Ruin of the Roman Empire by the Goths and Vandals) GOVERNMENT (to define it de jure, or according to Antient Prudence) is an Art whereby a civil Society of Men is instituted and preserv’d, upon the Foundation of Common Right or Interest; or (to follow ARISTOTLE and LIVY) it is an Empire of Laws, and not of Men.

AND Government to define it de facto, or according to Modern Prudence, is an Art whereby some Man, or some few Men, subject a City or a Nation, and rule it according to his or their private Interest; which because Laws in such cases are made according to the Interest of a Man, or some few Families, may be said to be an Empire of Men, and not of Laws.

HEREBY it is plain, whether in an Empire of Laws, and not of Men, as a Commonwealth; or in an Empire of Men, and not of Laws, as Monarchy: First, That Law must equally proceed from Will, that is either from the Will of the whole People, as in a Commonwealth; from the Will of one Man, as in an Absolute, or from the Will of a few Men, as in a regulated Monarchy,

SECONDLY, That Will, whether of one, or more, or all, is not presum’d to be, much less to act without a Mover.

THIRDLY, That the Mover of the Will is Interest.

FOURTHLY, That Interests also being of one, of more, or of all; those of one Man, or of a few Men, where Laws are made accordingly, being more private than comes duly up to the Law, the nature whereof lies not in Partiality but in Justice, may be call’d the Empire of Men, and not of Laws: And that of the whole People coming up to the public Interest (which is no other than common Right and Justice, excluding ail Partiality or private Interest) may be call’d the Empire of Laws, and not of Men. By all which put together, whereas it is demonstrable that in this division of Government I do not stay at the Will, which must have some Motive or Mover, but go to the first and the remotest Notion of Government, in the Foundation and Origination of it, in which lies the Credit, of this Division, and the Definition of the several Members, that is to say, of Interest, whether private or public; the Prevaricator tells me, That this division of Government having (he knows not how) lost its Credit, the definitions of the several Members of it need not be. consider’d further, than that they come not at all up to the first and remotest Notion of Government in the Foundation and Origination of it, in which lies all the difficulty; and being here neglected, there is little hope the subsequent Discourse can have in it the light of probable Satisfaction, much less the Force of infallible Demonstration.

VERY good! Interest it should seem then is not the first and remotest Notion of Government, but that which he will out-throw; and at this cast, by saying, that the Declaration of the will of the Sovereign Power is call’d Law: which if it out-lives the Person whose Will it was, it is only because the Persons who succeed in Power are presumed to have the same will, unless they manifest the contrary, and that is the Abrogation of the Law; so that still the Government is not in the Law but in the Perfan whose Will gave a being to that Law. I might as well say, The Declaration to all men by these presents that a man owes Money is call’d a Bond; which if it out-lives the Person that enter’d into that Bond, it is only because the Persons that succeed him in his Estate, are presum’d to have the same will, unless they manifest the contrary, and that is the abrogation or cancelling of the Bond; so that still the Debt is not in the Bond, but in his Will who gave a being to that Bond. If it be alledg’d against this example, that it is a private one, the case may be put between several Princes, States, or Governments, or between several States of the same Principallity or Government, whether it be a Regulated Monarchy or a Commonwealth; for in the like Obligation of the States (as of the King, the Lords, and Commons) or Parties agreeing, Autboritate Patrum & jussu Populi, till the Parties that so agreed to the Obligation, shall agree to repeal or cancel it, lies all Law that is not merely in the Will of one Man, or of one State, or Party, as the Oligarchy. But not to dispute these things further in this place, let the Government be what it will, for the Prevaricator to fetch the Origination of Law no further than the will (while he knows very well that I fetch’d it from Interest, the Antecedent of Will) and yet to boast that he has out-thrown me, I say he is neither an honest Man, nor a good Bowler. No matter, he will be a better Gunner; for where I said that the Magistrate upon the Bench is that to the Law, which a Gunner upon his Plat-form is to his Cannon, he goes about to take better aim, and says, If the proportion of things be accurately considered, it will appear that the laden Cannon answers not to the Laws, but to the Power of the Person whose Will created those Laws: Which if some of them that the Power of the Person whose Will created them, intended should be of as good Stuff or Carriage as the rest, do nevertheless according to the nature of their Matter or of their Charge, come short, or over, and others break or recoil; sure this Report of the Prevaricator is not according to the bore of my Gun, but according to the bore of such a Gunner. Yet again, if he be not so good a Gunner, he will be a better Anatomist; for whereas I affirm, that to say, ARISTOTLE and CICERO wrote not the Rights or Rules of their Politicks from the Principles of Nature, but tranfcrib’d them into their Books out of the practice of their own Commonwealths, is as if a man should say of famous HARVEY, that he transcrib’d his Circulation of the Blood, not out of the Principles of Nature, but out of the Anatomy of this or that Body: He answers, that the whole force of this Objection amounts but to this, that because HARVEY in his Circulation has follow’d the Principles of Nature, therefore ARISTOTLE and CICERO have done so in their Discourses of Government.

PRETTY! It is said in Scripture, Thy Word is sweet as Honey: Amounts that but to this, Because Honey is sweet, therefore the Word of God is sweet? To say that my Lord Protector has not conquer’d many Nations, were as if one should say, that CÆSAR had not conquer’d many Nations: Amounts that but to this, that because CÆSAR conquer’d many Nations: therefore my Lord Protector has conquer’d many Nations? What I produce as a Similitude, he calls an Objection; where I say, as, he says, because: what ingenuous man does not detest such a cheat! A Similitude is brought to shew how a thing is or may be, not to prove that it is so; it is us’d for Illustration, not as an Argument: The Candle I held did not set up the Post, but shew where the Post was set, and yet this blind Buzzard has run his head against it. Nor has he yet enough; if he be not the better Naturalist, he will be the better Divine, tho’ he should make the worse Sermon. My Doctrine and Use upon that of SOLOMON, I have seen Servants upon Horses, and Princes walking as Servants upon the Ground, discovers the true means whereby the Principles of Power and Authority, the Goods of the Mind and of Fortune, may so meet and twine in the Wreath or Crown of Empire, that the Government standing upon Earth like a holy Altar, and breathing perpetual Incense to Heaven in Justice and Piety, may be something, as it were, between Heaven and Earth; while that only which is propos’d by the best, and resolved by the most, becomes Law; and so the whole Government an Empire of Laws, and not of Men. This he says, is a goodly Sermon; it is honest, and sense. But let any man make sense or honesty of this Doctrine, which is his own; To say that Laws do or can govern, is to amuse our selves with a Form of Speech, as when we say Time, or Age, or Death, does such a thing; to which indeed the Phansy of Poets, and Superstition of Women, may adapt a Person, and give a Power of Action: but wise Men know they are only Expressions of such Actions or Qualifications as belong to Things or Persons.

SPEAK out; Is it the Word of God, or the Knavery and Nonsense of such Preachers that ought to govern? Are we to hearken to that of the Talmud, There is more in the word of a Scribe, than in the words of the Law; or that which Christ thereupon says to the Pharisees, You have made the Word of God of no effect by your Traditions? Say, is the Commonwealth to be govern’d in the Word of a Priest or a Pharisee, or by the Vote of the People, and the Interest of Mankind?

—James Harrington, “First Book,” Prerogative of Popular Government.


 


The Prerogative of Popular Government.
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