Good Laws prescribe easy and safe Remedies against the Evils proceeding from the vices or infirmities of the Magistrate; and when they fail, they must be supplied.

THOSE who desire to advance the power of the magistrate above the law, would persuade us, that the difficulties and dangers of inquiring into his actions, or opposing his will when employ'd in violence and injustice, are so great, that the remedy is always worse than the disease; and that 'tis better to suffer all the evils that may proceed from his infirmities and vices, than to hazard the consequences of displeasing him. But on the contrary, I think and hope to prove,

1. That in well-constituted governments, the remedies against ill magistrates are easy and safe.

2. That 'tis good, as well for the magistrate as the people, so to constitute the government, that the remedies may be easy and safe.

3. That how dangerous and difficult soever they may be through the defects of the first constitution, they must be tried.

To the first; 'Tis most evident that in well-regulated governments these remedies have been found to be easy and safe. The kings of Sparta were not suffer'd in the least to deviate from the rule of the law: And Theopompus one of those kings, in whose time the ephori were created, and the regal power much restrained, doubted not to affirm, that it was by that means become more lasting and more secure. Pausanias had not the name of king, but commanded in the war against Xerxes with more than regal power; nevertheless being grown insolent, he was without any trouble to that state banished, and afterwards put to death. Leonidas father of Cleomenes, was in the like manner banished. The second Agis was most unjustly put to death by the ephori, for he was a brave and a good prince, but there was neither danger nor difficulty in the action.[1] Many of the Roman magistrates, after the expulsion of the kings, seem to have been desirous to extend their power beyond the bounds of the law; and perhaps some others as well as the decemviri, may have designed an absolute tyranny; but the first were restrained, and the others without much difficulty suppressed. Nay, even the kings were so well kept in order, that no man ever pretended to the crown unless he were chosen, nor made any other use of his power than the law permitted, except the last Tarquin, who by his insolence, avarice and cruelty, brought ruin upon himself and his family. I have already mentioned one or two dukes of Venice who were not less ambitious, but their crimes returned upon their own heads, and they perished without any other danger to the state than what had passed before their treasons were discovered. Infinite examples of the like nature may be alleged; and if matters have not at all times, and in all places, succeeded in the same manner, it has been because the same courses were not everywhere taken; for all things do so far follow their causes, that being order'd in the same manner, they will always produce the same effects.

2. To the second; Such a regulation of the magistratical power is not at all grievous to a good magistrate. He who never desires to do anything but what he ought, cannot desire a power of doing what he ought not, nor be troubled to find he cannot do that which he would not do if he could. This inability is also advantageous to those who are evil or unwise; that since they cannot govern themselves, a law may be imposed upon them, lest by following their own irregular will, they bring destruction upon themselves, their families and people, as many have done. If Apollo in the fable had not been too indulgent to Phaethon, in granting his ill-conceiv'd request, the furious youth had not brought a necessity upon Jupiter, either of destroying him, or suffering the world to be destroy'd by him.

Besides, good and wise men know the weight of sovereign power, and misdoubt their own strength. Sacred and human histories furnish us with many examples of those who have feared the lustre of a crown. Men that find in themselves no delight in doing mischief, know not what thoughts may insinuate into their minds, when they are raised too much above their sphere. They who were able to bear adversity, have been precipitated into ruin by prosperity. When the prophet told Hazael the villainies he would commit, he answer'd, Is thy servant a dog, that I should do these things? but yet he did them.[2] I know not where to find an example of a man more excellently qualified than Alexander of Macedon; but he fell under the weight of his own fortune, and grew to exceed those in vice, whom he had conquer'd by his virtue. The nature of man can hardly suffer such violent changes without being disorder'd by them; and everyone ought to enter into a just diffidence of himself, and fear the temptations that have destroy'd so many. If any man be so happily born, so carefully educated, so established in virtue, that no storm can shake him, nor any poison corrupt him, yet he will consider he is mortal; and knowing no more than Solomon, whether his son shall be a wise man or a fool, he will always fear to take upon him a power, which must prove a most pestilent evil both to the person that has it, and to those that are under it, as soon as it shall fall into the hands of one, who either knows not how to use it, or may be easily drawn to abuse it. Supreme magistrates always walk in obscure and slippery places: but when they are advanced so high, that no one is near enough to support, direct or restrain them, their fall is inevitable and mortal. And those nations that have wanted the prudence rightly to balance the powers of their magistrates, have been frequently obliged to have recourse to the most violent remedies, and with much difficulty, danger and blood, to punish the crimes which they might have prevented. On the other side, such as have been more wise in the constitution of their governments, have always had regard to the frailty of human nature, and the corruption reigning in the hearts of men; and being less liberal of the power over their lives and liberties, have reserved to themselves so much as might keep their magistrates within the limits of the law, and oblige them to perform the ends of their institution. And as the law which denounces severe penalties for crimes, is indeed merciful both to ill men, who are by that means deterred from committing them; and to the good, who otherwise would be destroy'd: so those nations that have kept the reins in their hands, have by the same act provided as well for the safety of their princes as for their own. They who know the law is well defended, seldom attempt to subvert it: they are not easily tempted to run into excesses, when such bounds are set, as may not safely be transgressed; and whilst they are by this means render'd more moderate in the exercise of their power, the people is exempted from the odious necessity of suffering all manner of indignities and miseries, or by their destruction to prevent or avenge them.

3. To the third: If these rules have not been well observed in the first constitution, or from the changes of times, corruption of manners, insensible encroachments, or violent usurpations of princes, have been render'd ineffectual, and the people exposed to all the calamities that may be brought upon them by the weakness, vices and malice of the prince, or those who govern him, I confess the remedies are more difficult and dangerous; but even in those cases they must be tried. Nothing can be fear'd that is worse than what is suffer'd, or must in a short time fall upon those who are in this condition. They who are already fallen into all that is odious, shameful and miserable, cannot justly fear. When things are brought to such a pass, the boldest counsels are the most safe; and if they must perish who lie still, and they can but perish who are most active, the choice is easily made.[3] Let the danger be never so great, there is a possibility of safety whilst men have life, hands, arms, and courage to use them; but that people must certainly perish, who tamely suffer themselves to be oppress'd, either by the injustice, cruelty and malice of an ill magistrate, or by those who prevail upon the vices and infirmities of weak princes. 'Tis in vain to say, that this may give occasion to men of raising tumults or civil war; for tho these are evils, yet they are not the greatest of evils. Civil war in Machiavelli's account is a disease, but tyranny is the death of a state. Gentle ways are first to be used, and 'tis best if the work can be done by them; but it must not be left undone if they fail. 'Tis good to use supplications, advices and remonstrances; but those who have no regard to justice, and will not hearken to counsel, must be constrained. 'Tis folly to deal otherwise with a man who will not be guided by reason, and a magistrate who despises the law: or rather, to think him a man, who rejects the essential principle of a man; or to account him a magistrate who overthrows the law by which he is a magistrate. This is the last result; but those nations must come to it, which cannot otherwise be preserved. Nero's madness was not to be cured, nor the mischievous effects of it any otherwise to be suppressed than by his death. He who had spared such a monster when it was in his power to remove him, had brought destruction upon the whole empire; and by a foolish clemency made himself the author of his future villainies. This would have been yet more clear, if the world had then been in such a temper as to be capable of an entire liberty. But the ancient foundations had been overthrown, and nothing better could be built upon the new, than something that might in part resist that torrent of iniquity which had overflow'd the best part of the world, and give mankind a little time to breathe under a less barbarous master. Yet all the best men did join in the work that was then to be done, tho they knew it would prove but imperfect. The sacred history is not without examples of this kind: When Ahab had subverted the law, set up false witnesses and corrupt judges to destroy the innocent, killed the prophets, and established idolatry, his house must then be cut off, and his blood be licked up by dogs. When matters are brought to this pass, the decision is easy. The question is only, whether the punishment of crimes shall fall upon one or a few persons who are guilty of them, or upon a whole nation that is innocent. If the father may not die for the son, nor the son for the father, but everyone must bear the penalty of his own crimes, it would be most absurd to punish the people for the guilt of princes. When the earl of Morton was sent ambassador to Queen Elizabeth by the estates of Scotland, to justify their proceedings against Mary their queen, whom they had obliged to renounce the government; he alleged amongst other things the murder of her husband plainly proved against her; asserted the ancient right and custom of that kingdom, of examining the actions of their kings;[4] by which means, he said, many had been punished with death, imprisonment and exile;[5] confirmed their actions by the examples of other nations; and upon the whole matter concluded, that if she was still permitted to live, it was not on account of her innocence, or any exemption from the penalties of the law, but from the mercy and clemency of the people, who contenting themselves with a resignation of her right and power to her son, had spared her. This discourse, which is set down at large by the historian cited on the margin, being of such strength in itself as never to have been any otherwise answered than by railing, and no way disapproved by Queen Elizabeth or her council to whom it was made, either upon a general account of the pretensions of princes to be exempted from the penalties of the law, or any pretext that they had particularly misapplied them in relation to their queen, I may justly say, that when nations fall under such princes as are either utterly uncapable of making a right use of their power, or do maliciously abuse that authority with which they are entrusted, those nations stand obliged, by the duty they owe to themselves and their posterity, to use the best of their endeavours to remove the evil, whatever danger or difficulties they may meet with in the performance. Pontius the Samnite said as truly as bravely to his countrymen, That those arms were just and pious that were necessary, and necessary when there was no hope of safety by any other way.[6] This is the voice of mankind, and is dislik'd only by those princes, who fear the deserved punishments may fall upon them; or by their servants and flatterers, who being for the most part the authors of their crimes, think they shall be involved in their ruin.

[1] Plutarch. [Lives of Aristides, Themistocles, and Agis.]

[2] [2 Kings 8:7-15.]

[3] Moriendum victis, moriendum deditis: id solum interest, an inter cruciatus & ludibria, an pro virtutem expiremus. C. Tacit. Quod si nocentes innocentesque idem exitus maneat, acrioris viri est merito perire. Ibid. [Tacitus, Histories, bk. 3, ch. 66. Ibid., bk. 1, ch. 21.]

[4] Animadvertendi in reges. [Buchanan, History of Scotland, bk. 20.]

[5] Morte, vinculis & exilio puniti. Buchan. hist. Scot. 1. 20. Qui tot reges regno exuerunt, exilio damnarunt, carceribus coercuerunt, supplicio denique affecerunt, nec unquam tamen de acerbitate legis minuenda mentio est facta, &c. Ibid. Facile apparet regnum nihil aliud esse, quam mutuam inter regem & populum stipulationem. Non de illarum sanctionum genere, quae mutationibus temporum sunt obnoxiae, sed in primo generis humani exortu, & mutuo prope omnium gentium consensu comprobatae, & una cum rerum natura infragiles & sempiternae perennent. Ibid. [Buchanan, History of Scotland, bk. 20.]

[6] Justa piaque sunt arma, quibus necessaria, & necessaria, quibus nulla nisi in armis spes est salutis: T. Liv. lib. 8. [Livy, History of Rome, bk. 9, ch. 1.]