The Elements of Moral Science (1835, 1856 ed.)

Francis Wayland

BOOK 2, PART 2, DIVISION 1, CLASS 3, CHAPTER 2

Of The Mode in Which The Objects of Society Are Accomplished

WE have thus far treated merely of the constitution of a society, of the contract entered into between the individual and society, and of the obligations hence devolving upon each. The obligations of society are to protect the individual from infractions of the law of reciprocity, and to redress his wrongs if he have been injured.

But it is manifest that this obligation cannot be discharged by the whole of society as a body. If a man steal from his neighbor, the whole community cannot leave their occupations, to detect, to try, and to punish the thief. Or, if a law is to be enacted respecting the punishment of theft, it cannot be done by the whole community, but must of necessity be intrusted to delegates. On the principle of division of labor, it is manifest that this service will be both more cheaply and more perfectly done, by those who devote themselves to it, than by those who are, for the greater part of the time, engaged in other occupations.

Now I suppose a government to be that system of delegated agencies, by which these obligations of society to the individual are fulfilled.

And, moreover, as every society may have various engagements to form with other independent societies, it is convenient, in general, that this business should be transacted by this same system of agencies. These two offices of government, though generally united, are in their nature distinct. Thus we see, in our own country, the State Governments are, to a considerable degree, intrusted with the first, while a part of the former, and all the latter power, vest in the general government.

A government thus understood is naturally divided into three parts.

1. An individual may from ignorance violate the rights of his neighbor, and thus innocently expose himself to punishment. Or, if he violate his neighbor’s rights maliciously, and justly merit punishment, a punishment may be inflicted more severe than the nature of the case demands. To avoid this, it is necessary that the various forms of violation be as clearly as possible defined, and also that the penalty be plainly and explicitly attached to each. This is a law. This, as we have shown, must be done by delegates. These delegates are called a legislature, and the individual members of it are legislators.

From what we have said, their power is manifestly limited. They have no power except to execute the obligations which society has undertaken to fulfil towards the individual. This is all that society has conferred, for it is all that society had to confer.

If legislators originate any power in themselves, or exercise any power conferred, for any purpose different from that for which it was conferred, they violate right, and are guilty of tyranny.

2. But suppose a law to be enacted, that is, a crime to be defined, and the penalty to be affixed. It has reference to no particular case, for, when enacted, no case existed to be affected by it. Suppose now an individual to be accused of violating this law. Here it is necessary to apply the law to this particular case. In order to do this, we must ascertain, first, whether the accused did commit the act laid to his charge; secondly, whether the act, if it be proved to have been done, is a violation of the law; that is, whether it come within the description of actions which the law forbids; and, thirdly, if this be proved, it is necessary to declare the punishment which the law assigns to this particular violation. This is the judicial branch of the government.

3. After the law has been thus applied to this particular case, it is necessary that it be carried into effect. This devolves up on the third, or the executive branch of a government.

Respecting all of these three branches of government, it nay be remarked in general, that they are essentially independent of each other; that each one has its specific duties marked cut by society, within the sphere of which duties it is responsible to society, and to society atone. Nor is this independence at all affected by the mode of its appointment. Society may choose a way of appointing an agent, but that is by no means a surrender of the claim which it has upon the agent. Thus, society may impose upon a legislature, or an executive, the duty of appointing a judiciary; but the judiciary is just as much independent of the executive, or of the legislature, as though it were appointed in some other way. Society, by conferring upon one branch the right of appointment, has conferred upon it no other right. The judge, although appointed by the legislator, is as independent of him, as the legislator would be if appointed by the judge. Each, within his own sphere, is under obligation to perform precisely those duties assigned by society, and no other. And hence arises the propriety of establishing the tenure of office, in each several branch, independently of the other.

The two first of these departments are frequently subdivided.

Thus, the legislative department is commonly divided into two branches, chosen under dissimilar conditions, for the purpose of exerting a check upon each other, by representing society under different aspects, and thus preventing partial and hasty legislation.

The judiciary is also generally divided. The judges explain and interpret the law; while it is the province of the jury to ascertain the facts.

The executive is generally sole, and executes the law by means of subordinate agents. Sometimes, however, a council is added, for the sake of advice, without whose concurrence the executive cannot act.

Sometimes the fundamental principles of the social compact are expressed, and the respective powers of the different branches of the government are defined, and the mode of their appointment described in a written document. Such is the case in the United States. At other times, these principles and customs have grown up in the progress of society, and are the deductions drawn from, or principles established by, uncontested usage. The latter is the case in Great Britain. In either case, such principles and practices, whether expressed or understood, are called the constitution of a country.

Nations differ widely in the mode of selection to office, and in the tenure by which office is held. Thus, under some constitutions, the government is wholly hereditary. In others, it is partly hereditary and partly elective. In others, it is wholly elective.

Thus, in Great Britain, the executive and one branch of the legislature are hereditary; the other branch of the legislature is elective. The judiciary is appointed by the executive, though they hold office, except in the case of the lord high chancellor, during good behavior.

In the United States, the executive, and both branches of the legislature, are elective. The judiciary is appointed by the executive, by and with the advice and consent of the senate. In the State Government, the mode of appointment is various.

If it be asked, Which of these is the preferable form of government? the answer, I think, must be conditional. The best form of government for any people, is the best that its present moral and social condition renders practicable. A people may be so entirely surrendered to the influence of passion, and so feebly influenced by moral restraint, that a government which relied upon moral restraint, could not exist for a day. In this case, a subordinate and inferior principle yet remains, the principle of fear; ana the only resort is to a government of force, or a military despotism. And such do we see to be the fact. An anarchy always ends in this form of government. After this has been established, and habits of subordination have been formed, while the moral restraints are yet too feeble for self-government, an hereditary government, which addresses itself to the imagination, and strengthens itself by the influence of domestic connections and established usage, may be as good a form as a people can sustain. As they advance in intellectual and moral cultivation, it may advantageously become more and more elective; an, in a suitable moral condition, it may be wholly so. For beings, who are willing to govern themselves by moral principle, there can be no doubt, that a government relying upon moral principle, is the true form of government. There is no reason why a man should be oppressed by taxation, and subjected to fear. who; willing to govern himself by the law of reciprocity. It is surely better for an intelligent and moral being to do right from his own will, than to pay another to force him to do right. And yet, as it is better that he should do right than wrong, even though he be forced to it, it is well that he should pay others to force him, if there be no other way of insuring his good conduct. God has rendered the blessing of freedom inseparable from moral restraint in the individual; and hence it is vain for a people to expect to be free, unless they are first willing to be virtuous.

It is on this point, that the question of the permanency of the present form of government of the United States turns. That such a form of government requires, of necessity, a given amount of virtue in the people, cannot, I think, be doubted. If we possess that required amount of virtue, or if we can attain to it, the government will stand; if not, it will fall. Or, if we now possess that amount of virtue, and do not maintain it, the government will fall. There is no self-sustaining power in any form of social organization. The only self-sustaining power is in individual virtue. And the form of a government will always adjust itself to the moral condition of a people. A virtuous people will, by their own moral power, frown away oppression, and, under any form of constitution, become essentially free. A people surrendered up to their own licentious passions, must be held in subjection by force; for every one will find, that force alone can protect him from his neighbors; and he will submit to be oppressed, if he may only be protected. Thus, in the feudal ages, the small independent landholders frequently made themselves slaves of one powerful chief, to shield themselves from the incessant oppression of twenty.