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MONTESQUIEU, NEDHAM, CROMWELL
brilliantly illustrated by a recent writer.” 1 The similar confusion of judicial and executive functions in the duties of the Council, in central government, and the Justices of the Peace, in local government, is too obvious to need amplification, being reflected, as we have seen, even in political phraseology. Protests, however, against the prevailing practice were numerous, and the doctrine of the separation of powers was widely asserted." The reason is evident," wrote Nedham,
because, if the Law-Makers (who ever have the Supream Power) should be also the constant Administrators and Dispensers of Law and Justice, then (by consequence) the people would be left without Remedy, in case of Injustice, since no Appeal can lie under heaven against such as have the Supremacy; which, if once admitted, were inconsistent with the very interest and natural import of true Policy; which eyer supposeth, that men in Power may be unrighteous ; and therefore (presuming the worst) points alwayes, in all determination, at the Enormities and Remedies of government, on the behalf of the people.” Cromwell in his speech of April 21st, 1657, burst into sarcasm over the idea of a perpetual parliament, beginning by appointing judicial committees and ending (as in Naylor's case) by the assumption of judicial powers by the whole house—“And truly I think the Legislative would be almost as well in the Four Courts of Westminster Hall! And if they could make Laws and judge too, you would have excellent Laws; and the lawyers would be able to give you excellent counsel." 3 Harrington in his epigrammatic style expressed the same sentiment, “In a Commonwealth neither is accumulations of magistracy just or
1 Mcllwain, " The High Court of Parliament and its Supremacy." ; " Excellence of a Free State," p. 212.
3 Carlyle, Speech XIII.
equal, nor the confounding of Executive and Legislative Magistracy safe.” 1
The measure by which he hoped to secure this was the simple and popular one of excluding practising lawyers from Parliament–in the words of one of his followers—" it being very incongruous in reason that they should be the makers of our Laws that are the mercenary Interpreters, lest byast by their own interests, instead of fences to our proprieties they make them snares to our Lives and Estates." 2
Thus far Harrington went with the orthodox supporters of the Protectorate. But at the same time as agreeing with them he saw the force of the opposite and classical theory," wheresoever the power of making Law is, there only is the power of interpreting the law so made." 3 This led him to make two propositions by way of exception to the Montesquieuan doctrine. He maintained that there must be an ultimate appeal to the people in their representatives so that the lower house should in the last resort exercise judicial functions. And although he acknowledged he could not understand “why a Judge, being but an Assistant or Lawyer should be Member of a Legislative Council," he felt the occasional utility of consulting the judges in framing laws. He therefore proposed that the judiciary should be elected by his system of ballot and rotation out of either house or both houses of Parliament, and that the judges should be permitted to sit in the Senate but not exercise their vote.
It is not difficult to reconcile Harrington's two positions. With the sacred example of Rome before him he could not refuse the right of appeal to the
1 “The Art of Lawgiving,” p. 465.
A Modest Plea for an equal Commonwealth against Monarchy," p. 73. 8 " A System of Politics," p. 509.
THE SEPARATION OF POWERS
people in their elected assembly. He therefore made no attempt to bring about the absolute separation of legislative and judicial functions. But at the same time he felt the dangers of the concentration of power, and he was inspired with a hatred of the legal caste. He was therefore compelled to take certain steps against the confusion of powers. Without making any clear distinction between judicial and executive power, he asserted in general terms the doctrine of the separation of the three functions of government. But he did not believe that the separation of the making, administering, and interpreting of laws was so great a preservative of liberty as to stand in no need of qualification. In his petition of July 6th 1659 he therefore tabulated his attitude thus : “That it ought to be declar'd as a Fundamental Order in the Constitution of this Commonwealth, that the Parliament being the Supreme Legislative Power, is intended only for the exercise of all those Acts of Authority that are proper and peculiar to the Legislative Power; and to provide for a Magistracy to whom should appertain the whole Executive Power of the Laws : and no Case, either Civil or Criminal, to be judged in Parliament, saving that the last Appeals in all Cases, where Appeals shall be thought fit to be admitted, be only to the Popular Assembly; and also that to them be refer'd the Judgment of all Magistrates in Cases of Maladministration in their offices.”
Harrington's views on the relations of states with each other are worthy of mention. He accepted Machiavelli's division of states and foreshadowed the modern classification of unitary and federal, national and imperial states, although in 1659 he relegated federal systems from the domain of art to that of
1“Oceana," p. 54.
SCOTLAND AND IRELAND
chance.1 His views on the proper treatment of Scotland and Ireland were somewhat unsettled. He first proposed that the neighbouring countries should be represented in Parliament, but be governed by Councils of State, elected from retiring senators, with the assistance of the provincial armies. But when the question of the representation of Scotland and Ireland came up in Parliament in 1659, Nevile opposed the motion, and the common attitude of the republican members is represented in the words of one of their number—"I think it is best that they should have Parliaments of their own for that very reason, that votes may not be imposed upon you here. There is a sea between us and Dublin.” . Similarly Harrington, when he wrote the “ Political Aphorisms ” in August 1659 deplored a union, which could only be based on force, and claimed nothing but“ a just league," which would leave to Scotland and Ireland their own laws, their own government, and their perfect liberty.3
In his random remarks on the colonial system Harrington sounds extraordinarily modern. He has been greeted by some as one of the first of British Imperialists; and Froude has given the title “Oceana to his book on the British Empire in Harrington's honour. But outside of the Preface to “Oceana,” where England is assigned an imperial position more proud than that of Venice, a different strain.is heard.
If you have subdued a nation that is capable of Liberty, you shall make them a present of it,” he says in one place,4 while in another place the following famous passage occurs : “ The colonys in the Indies they are yet babes that cannot live without sucking the breasts of their Mother Citys, but such as I mistake,
I "A System of Politics,” p. 502. 3 " Political Aphorisms,” p. 518.
2 Burton, “ Diary," iii. 238.
Oceana," p. 201.
if when they come of age they do not wean themselves, which causes me to wonder at Princes that delight to be exhausted in that way."1 This was written in 1656. No wonder Harrington has influenced American thought !
The author of " Oceana was never quite comfortable about imperialism. He felt that it contradicted his theory of the balance of property. Nevertheless his prophecy of the American Revolution was in reality based on the theory.
Provincial or dependent Empire,” he argued, “is not to be exercised by them that have the balance of dominion in the province (i.e. the landowners], because they would bring the government from provincial and dependent to national and independent." ; In other words a national sentiment is bound to arise, if a colony is allowed to govern itself. In view, then, of the liberal policy of the mother country to her colonies, Harrington was able to predict the assertion of their independence, and his prediction was based on the idea that the landowners will always rule where they have the chance.
In common with his Hellenic models Harrington laid great stress on education. The theory that
the Education of a man's own children is not wholly to be committed or trusted to himself " 3 is as ancient as it is modern. But Harrington's application of the theory is more suggestive of the spirit of the nineteenth century than of the stern régime of Sparta or the Roman Republic. He proposed the institution of compulsory free schools under government inspection, but with his usual moderation he left the education of only sons to the discretion of their parents and gave all parents the liberty of choosing the schools to which they sent their children. The absence of any allusion
1 “Oceana," p. 44.
3 Ibid. p. 43
3 Ibid. p. 172.