The Science of Rights/Part 2/Book 2

§ 1.
THE ESTABLISHMENT OF A GOVERNMENT.

THROUGH the state organization the common will has manifested itself, and become the law of all. But it has not yet been established actually, nor has the power to protect all the individuals of the state been, as yet, conferred upon it. The common will is realized in the state organization as mere will; but not as power to maintain itself, not as a government.

This is our present problem.

The individuals of the commonwealth, as physical persons in the sensuous world, necessarily are themselves possessed of power. Until some one transgresses the law, his will must be assumed to be in harmony with the common will, and hence his power is part of the common power. Thus each one, even if he has the desire to transgress the law, must always fear the power of all others, and all others must constantly fear his power; simply because neither party can have a knowledge of the other's intentions. In short, the power of all keeps the power of each single individual in check; and the most complete equilibrium of rights is thus established.

But as soon as the law has been transgressed, the matter changes. The transgressor is now excluded from the law, and his power from its power. His will is no longer in harmony with the common will, but is a private will

So also is the offended party excluded from the execution of the common will; for the very fact that he is the offended party makes his will; that the transgressor shall be punished, a private will and not the common will. His private will, we have shown, is kept in check only by the power of the common will. If this power were intrusted into his hands for the purpose of executing what is clearly his private will, his private will would no longer be kept in check by the common power. Hence, only a third party can be judge, of which third party it is to be assumed that the whole dispute concerns him only in so far as the common security is endangered thereby, since he can have no private advantage in deciding in favor of this or the other party; and of which party it is, therefore, to be assumed that his will is the common will, utterly uninfluenced by his private will.

Nevertheless, the possibility remains that the third party, from some unexplainable preference in favor of one of the parties, or because he may be interested after all, or because he is liable to error, will pronounce an unjust decision and combine with the offender to carry it out. Both parties would thus be united in favor of injustice, and the supreme power would no longer be on the side of the law.

How is such a combination in favor of injustice to be made impossible?

The will of the common end or the rule of the law is, as we have shown, conditioned by the will of the private end of each; his desire of public security is conditioned by his desire of his own security. Hence, it would be necessary to effect a contrivance which would make it impossible for individuals to combine together against the security of others without infallibly losing their own security.

It is certainly true, that if such a combination has once been formed in a state, it thereby becomes possible a second and a third time, and hence that each member of the first combination must apprehend that the rule of his own conduct will at some future time be turned against him. But still it is possible that each one will think, It won't hit me; I shall be smart enough to be always on the winning side.

The possibility of such a thought must be utterly taken away. Each one must become convinced that the subjection and unlawful treatment of one member of the state will infallibly result in his own subjection and unlawful treatment.

Such a conviction can be produced only by a law. The unjust violence against an individual must, therefore, become legalized by its having occurred in one case. Because something has been allowed to occur once, each citizen must thereafter have a perfect right to do the same. In the words of a previously-used formula: Each deed must necessarily become law; if it does, then every law is sure to become a deed. (This proposition is, indeed, a matter of course; for the law is the same for all men, and hence what the law allows to one it must allow to all.)

But this proposition can not be realized; for through it right and justice are annulled for all time. The Conception of Rights can not involve such a self-contradiction; hence, it can only signify that no single case of a violation of law must ever be allowed to occur, since its occurrence would annul law for all time to come. How this is to be actualized will appear directly, when we shall examine more closely the established conception of a power of the law.

We have said that the protective power must be one, the self-preservation whereof is conditioned by its continuous effectiveness, which will, therefore, be annihilated for ever if it remains inactive in one single case; the general existence of which, indeed, depends upon its manifesting itself in every single case; and since this order of things is not sure to be established of itself, it must be provided for through a fundamental law of the constitution.

It is established when the following provision is made: That a law shall have no validity for future cases until all previous cases have been decided according to it. In other words, no one must be allowed the benefits of a law until all previous persons who have claims under the same law have had their claims settled; and no one must be punished under a certain law until all previous violations of this law have been discovered and punished. And since all laws are really only One Law, the provision must be: that the one general law can not be applied in any particular case until all previous cases have been decided according to it. A law, which in this manner prescribes a law to itself, such an in itself returning law, is called a Constitutional Law, or the Constitution.

If this order of things is made secure by a power of compulsion, then the security of all and the uninterrupted rule of law seems firmly established. But how is it to be thus secured?

If, as is always presupposed here, the whole commonwealth holds the power of compulsion in its hands, what other power is there to force the commonwealth to see that the required order of things is always upheld? Or, supposing that all members of the state should for a while observe their fundamental compact and the required constitution, but should in a certain case be unwilling or unable to redress at the moment the grievances of some party or another. In that case, the operations of the law would come to a stand-still, and the disorders arising therefrom would soon be so great as to compel the people to violate their constitutional provision and—leaving old offenses unpunished—to try and stop disorders by energetically punishing new offenses. For such a stand-still of the law would be the punishment of their laziness, negligence, or partiality; and why should the people inflict upon themselves a violence of this kind?

In other words, the people would be their own judge of the administration of the law. Now, so long as insecurity had not become general, the people would probably allow many violations of the law to pass unpunished. Suddenly, when matters would grow intolerable, the people, in order to remedy past neglect, would pounce with unjust and passionate severity upon the criminals, whom previous laxity had rendered bolder, and who had been led to expect the same laxity in their own cases, but whose misfortune had brought them into the clutches of the law at the very epoch of the awaking of the people. This state of things would continue until terror had become general. Then the fury of the people would die out, the people and the administration of the law would fall asleep again, and the old state of things would return.

Such a form of government, the democratic form of government, in the real signification of the word, is the unsafest which is possible, since each citizen has constantly to fear not only the attacks of other citizens, but also the blind rage of a maddened mob, which will carry out injustice under the name of law.

Our problem, therefore, has not been solved; and the condition of men is as unsafe as ever. The true ground of this unsafety is, that the people can not be at the same time both judge and a party in the administration of the law.

This discovers to us the solution of our problem. In the administration of the law, judge and party must be divided, and the people of the commonwealth can not be both together.

The people can not be a party in this matter. For the people must remain the supreme power, and hence no judge, if the people were a party, could carry out his sentence against them, unless they should voluntarily submit, which is not to be supposed; for if they did, they would respect the law above every thing, and no law-dispute could possibly arise.

In short, there must be a law, according to which it can be decided whether the power of the state has been properly applied or not; and in this law-dispute the same person can not be both judge and a party to the case. Now, as the people must be one or the other in the law-dispute, and as they can not be party, from the reason stated above, the people can not retain the supreme power in their own hands.

It is, above all, important to be convinced of the strictness of this argument, since it furnishes the a priori deduction, which, to my knowledge, has never before been given, of the absolute necessity of Representation in a commonwealth. It shows that a representative government is not only useful and wise, but is absolutely required by the Conception of Rights, and that a Democracy, in the abovementioned sense of the word, is not only an impolitic, but an absolutely unlawful form of government. Perhaps the statement, that the people can not be both judge and party to a case at the same time, will meet less objection than the other statement, that a check upon the administration of the supreme power is absolutely necessary. Nevertheless, it is the certain result of all we have said before. Each member of the state must be convinced of the impossibility that his rights will ever be violated. But this impossibility does not exist so long as the administrators of the supreme power are not held accountable.

The people of a commonwealth must, therefore, relinquish the administration of the supreme power to one or more persons, who remain responsible for the proper application of that power. A form of government which does not provide for this responsibility of the administration is a despotism.

Hence, it is a fundamental law of every rational and legal form of government, that the executive power, which embraces the executive and judicial, should be separated from the power which controls and checks the administration of that executive and judicial power.

I shall call the latter power the Ephorate. It must remain with the entire people, whilst the executive power must not remain with the entire people. A form of government, therefore, must be neither despotic nor democratic.

Much has been said concerning the division of powers, that is, of dividing the one common power of government into many. It has been said that the legislative power must be separated from the executive; but this proposition seems to be somewhat indefinite.

For, after the people of a commonwealth have once agreed upon living together in a legal relation, all specific laws are only applications of the one fundamental law, to which they have subjected themselves. It is, therefore, all the same if the men v/ho are intrusted with the executive power, also frame new specific laws; for in doing so they only execute the one fundamental law, which they were elected to carry out. If their specific provisions are unjust, or unlawful, the Ephorate holds them responsible.

Utterly useless and only seemingly possible is the separation of the judicial from the executive power, using the latter word in its more limited sense. For if the executive power has no veto upon the judicial power, then it is the unlimited power of the judiciary itself, separated into two persons; but of which two persons only one has a will, the other being merely a physical power directed by another will. But if the executive power has a veto, then it is itself the highest judicial power, and both powers are again one and the same. According to our doctrine, only the executive power and the Ephorate, or checking power, are to be separated.

The executive power of a commonwealth may be intrusted either to one person—as is done in a Monarchy—or to an organized body established in the constitution, as is done in a Republic. But since even in a monarchy one person does not really execute all the power, intrusting it rather to subordinates, the real distinction between a monarchy and a republic is this, that in a monarchy the final decision of all questions rests with one permanent president, (the monarch;) whereas in a republic it rests with the majority of votes the ballot-box. Hence, in a republic, the permanent monarch is a mythical and often changeable person, since it is composed of all those who decide by their votes the question at issue.

Again: The administrators of the executive power may be either elective or not; and in the former case all or only some of them may be elective. They are elective in a proper democracy, that is to say, in a democracy which recognizes representation. If all the public officials are directly elected by the whole people, the democracy is a pure democracy; if only some, it is a mixed democracy. The public officials may also fill vacancies themselves; this is the case in a pure aristocracy. But if only some of the magistrates are thus replaced by the public officers, and if the others are again directly elected by the people, then the form of government is that of a democratic aristocracy. A permanent president (monarch) may also be elected to exercise the executive power during his lifetime.

In all these cases, either all citizens of the commonwealth, or only some of them, are eligible to office. Eligibility may, therefore, be limited or unlimited. It can be effectively limited only through birth; for if every citizen is eligible to any office in the state, and the limitation is merely that he shall not fill, for instance, the higher offices until he has filled lower ones, then his eligibility is not absolutely but only relatively limited. If eligibility is absolutely limited, and hence grounded upon birth, the form of government is that of an hereditary aristocracy; and this leads us to the second supposition, that the administrators of the executive powers are not elective.

They are not elective in a form of government which recognizes born representatives, persons who are representatives either immediately through their birth, as hereditary princes in every hereditary monarchy, or who, at least, are, through their birth, the only eligible representatives, as the nobility in all monarchies, and the patricians in hereditary-aristocratic republics.

All these forms of government become legal through the law; that is, through the original will of the people, expressed in the adoption of their constitution. They are all lawful, provided that a checking power is established effective enough to prevent any abuse of power. This provided annuls all the foregoing, which, indeed, as based upon facts taken from experience, is a purely subjective judgment. It is, for instance, a priori clear that no checking power can be efficient if a monarch remains the permanent executive; or if there is not a power to punish his unlawful actions, by depriving him of his executive office. It is equally clear that an hereditary aristocracy does not permit of an efficient checking system, and that hence it is an unlawful form of government; for there is no power sufficient to prevent their abuse of power; or, if there is, then the aristocracy is not hereditary and exclusive possessor of certain rights.

It is certainly not the province of the Science of Rights to determine which is the better form of government, but it is equally truly its province to determine the conditions of a lawful government.

We have already shown that one of these conditions is universal applicability to the whole human race, and hence the form of a Confederate Republic. Another condition is, as has clearly shown, an effective checking power. How this is to be established is certainly a problem for the art of politics; and it is also clear that this art can constantly be improved upon. No one will deny that, however excellent, our system of checks and balances, both in cur general form of governments and in our state governments, can be vastly improved. Our state governments particularly seem much in need of such improvements.

All we desire to assert in this note is, that the conditions of the effectiveness of such a system of checks can be much closer determined than has done here. The reason why he found this subject so difficult to manage was probably because he could not see that the Ephorate, of the necessity of which institution he was absolutely convinced, would be realized in those very separations of powers and systems of checks which he attacked; and this he could not see because he did not see this, their true character. A priori he was convinced that a checking power must be established; but how to establish it was a question to which history alone could suggest answers, and neither the history of the ancient republics nor the recent experiments of France furnished the proper answer. American history was little known at 's time. Thus it puzzled him continually; and hence, also, no chapter of his Science of Rights was looked upon with more wonder by the public than this one upon the Ephorate. Unable to suggest a solution,, some ten years later, withdrew his proposed establishment of such an Ephorate, but took, at the same time, occasion to reassert his firm conviction in the correctness of the idea. He added that, after all, such an Ephorate did already exist in every civilized commonwealth, in the force of public opinion, which kept a continual check upon the executive power. We append that retraction at the end of this book, so that the reader may fully see how a philosopher may be absolutely certain of the correctness of a principle, and yet find it impossible to give it reality in the world as it is.—.

The question, Which is the better form of government for any particular state? is not a question for the Science of Rights to solve, but for the art of politics; and the solution of that problem depends upon the investigation, under which form of government the checking power can be made to work in the most effective manner.

The persons who have been intrusted by the people with the administration of the executive power, must have accepted it, and made themselves responsible for its administration.

Of course, this acceptance can only be voluntarily; and both parties must come to an understanding about it. For although the Conception of Rights requires that a public power, and expressly appointed administrators thereof, shall be established, it does not say to what particular persons that power is to be intrusted.

It is clear enough that, since the Conception of Rights requires such an establishment of a government, each person can be compelled to vote for or against the establishment of it; and likewise, that, if he happen to be elected as one of that government, he must declare whether he will accept the office or not.

It is also clear that the vote on the constitution, as the instrument which establishes the form of government, must be a unanimous vote. For although there exists a right of compulsion, to compel every person to become member of a commonwealth, there is no such right to compel him to become member of any particular commonwealth. If the vote is not unanimous, the majority will probably remain in the country, and constitute themselves a commonwealth under that constitution; whilst those in the minority, as they can not be tolerated in the commonwealth unless they become members of it, have no other choice than either to make the vote unanimous by accepting the constitution, or to make the vote unanimous by leaving the commonwealth.

Those who have once accepted an office under the constitution, can not again resign it without the consent of the people, since such resignation would perhaps interrupt the rule of the law, or make it impossible for a while, if no one could be found to take their place. On the other hand, the people can not take the office away from them; for their office is now their vocation, their possession in the state, and they have no other property. The other citizens received their property, and these got their offices as their property; hence their legal relation with the other citizens would be annulled, if the offices were taken away from them one-sidedly. Of course, if both parties agree, no objection can be raised.

Again: Since those who are to administer the public power made themselves responsible for the maintenance of justice and security, they must necessarily insist on being provided with the means, and the free use of them, requisite for that purpose. They must have the privilege of determining what each citizen shall furnish as his share of those means, and of using them according to their best knowledge and conviction. (How far this power is, nevertheless, to be limited, we shall soon see.) They must, therefore, be intrusted with unlimited control of the public power.

This public government must, in each specific case, protect the rights of citizens and punish violations of these rights. It is held responsible for this, and hence must have the power and the right to watch the conduct of the citizens; in other words it must have a police power. and a police legislation.

It needs scarcely be added, that this public administration is also a judge from whom there is no appeal, since all citizens have agreed in their original compact to submit their law disputes to the common power, which has now, through the constitution, been established as an administrative power.

§ 2.
THE ESTABLISHMENT OF A CHECK UPON THE GOVERNMENT.

now proceed to the second problem in the establishment of a constitution: How can this supreme power of the commonwealth, which has been constituted its government, be prevented from ever executing what is not lawful; and likewise from ever neglecting to execute what the law requires?

We have already suggested in general how this is to be accomplished. Their private end, the end of their own security and welfare, must be the same as the common end, and must be attainable only through the common end. It must be made impossible that they should have any other object than to promote the general object.

The law is merely formal; hence there must be no material interests possible for their law decisions. The only interest possible for them must be to watch, that their decisions are conformable to the law.

They must, first of all, be placed in a position of complete independence from all private persons, so far as their private needs are concerned. They must have a sure and sufficient income, so that no private person can offer them any benefits, and that all inducements which may possibly be offered to them can have no value in their eyes.

They must also have as few friendships, personal connections, attachments, etc., as possible, in order to be indisposed to show partiality.

It was stated before as a principle, necessary to compel equal legislation for each person, that the law must judge cases in time-succession, and that no future case must be decided until all past cases have been decided. This principle falls away as soon as a regular judicial power has been established through the constitution, which is held responsible for the pure administration of the law; for it may be more expedient to first decide cases which require little time; and the great object is, after all, to lose as little time as possible; but nevertheless, it is absolutely necessary that the judicial power should always be able to show that it has taken cognizance of all cases brought before it, and likewise that a certain time should be fixed within which cases—according to their nature—must be finally decided upon. If such a time is not fixed, it is impossible to ascertain whether each citizen has obtained his rights, and impossible to prove a neglect on the part of the judicial power, since it can always refer the complainants to the future.

But the following is a sure criterion whether the law is administered as it should be: The administration of the law must never contradict itself. Each public act of the public government must become established rule for all the future. This will bind government to the law. The government officials now can not proceed unjustly, since that would involve continued injustice for all the future, which again would lead to their own unsafety. Or if they should ignore again the unjust rule once adopted, they would thereby confess their unjust procedure in the previous case.

To make such a criterion possible, all acts of the administration, with their connected circumstances and grounds of decision, must receive the greatest publicity, at least after their final settlement. It might often be necessary, for the sake of public security, to keep these proceedings secret whilst still pending; but after the final decision, secrecy is no longer necessary.

If the state officials administer their power in accordance with these principles, right, justice, and security are fully guaranteed to each citizen of the commonwealth. But how—since confidence and fidelity are qualities never to be presupposed in legal relations—can the officials be compelled to proceed according to these principles? This is the final problem for a rational state constitution.

The executive power has final jurisdiction in all cases; there is no appeal from it. Such appeal is neither permissible—since it is a condition of a legal status that no appeal shall be made from the executive power—nor is it possible, since the executive power wields supreme power. The presumptive law, which has been constituted the infallible law of the commonwealth, speaks through the person of the judges, elected as infallible, from whom there is no appeal. The decisions of that power must, therefore, be carried out in the sensuous world.

A clear proof that the constitutional law has been violated by the executive power, can be furnished only when it is shown, either that the law has not been executed within the time fixed in the constitution, or when it is shown that the state officials contradict themselves, or commit evident injustice in order to avoid the appearance of self-contradiction.

It has further been shown, that only the people can judge the administrators of the public power. But the difficulty is this: where and what is the people? Is it any thing more than a mere conception, and if any thing more, how is it to be realized?

Before the tribunal of the public power or state government, all the members of the state are only private persons and not a people; each person is always subject to the government. Each will is considered by the government as only a private will, and the government considers itself the sole expression of the common will. The people, as a community, have no separate will; and hence a people as a body to sit in judgment upon the government, can not at all be realized until the people have withdrawn their declaration that the will of the government is their own will.

But how can this be done? No private person has the right to get up and say: "Let the people of our state come together in a convention to sit in judgment upon the government !" For if the will of such a person does not agree with the will of the government which continues to represent the common will, then the will of that person is a private will rising in opposition to the government, and hence a rebellious will, punishable as such; and his will certainly will never agree with that of the government. For either that government is conscious of its just administration, and in that case such a proposition for a convention would be utterly opposed to the common desire that no unnecessary disturbance of private business and of the administration of the law shall be tolerated, or it is conscious of its injustice; in which case it is not to be presumed that it will give up the power which it still holds in its hands, and will itself call together its judge. Hence, the government officials always remain their own judges, because the realizing of a judicial power to judge them depends upon themselves; and thus the form of government remains, after all, a despotism.

In short, since the people, as one body, can call itself together in convention only through itself, and since the people can not be one body until they have been thus called together, its calling together is impossible. *

How can this contradiction be solved? It is solved; When the constitution is made to provide in advance that the people shall, in a certain case, be called together in convention.

Such a constitutional law might provide, for instance, that the people should assemble together in convention at certain times, in order to consider the administration of the government officials. This arrangement is possible in small states, where the people do not live far apart, and can be called together without much loss of time, and where the administration of a government, moreover, can be easily surveyed. Yet even in such states this great law-ceremony would lose its dignity by too frequent a recurrence; and what is worse, a foreknowledge of its occurrence would enable parties, to a great extent, to control such conventions, and thus make them rather the representatives of their own than of the common will. In larger states, however, such an arrangement would be altogether impossible. It may, therefore, be stated as a principle of such a provision: That the people shall never be called together without absolute necessity; but as soon as it is necessary, they shall be called together at once, and shall have the power to judge.

There is no necessity for such an assembly, nor will the people desire it, unless law and justice have utterly ceased to be effective; but when this necessity arises, the convention must be called.

In a properly organized state, law and justice in general are dependent upon the maintenance of the rights of each single individual; and hence the whole law is overthrown if a single case of injustice occurs.

But who shall ascertain whether this case has occurred? The people can not, for they are not assembled; nor can the government, for that would be making it judge its own case. Nor can the party which complains of injustice, for it also is interested in the case. Hence, there must be a special power established by the constitution to take cognizance of such cases.

This power must be intrusted with continual supervision over the conduct of the government, and hence we may call it the Ephorate.

The executive power is responsible only to the people assembled in convention; hence the Ephorate can not sit in judgment upon the government; it must, however, be intrusted with the power to constantly watch the conduct of the government, and hence, also, to obtain information concerning it The Ephorate must not have the power to stop the decisions of the executive officials, since from them there is no appeal; nor must it have the right to decide law disputes, since the government is the only magistrate in the state. The Ephorate has, therefore, no executive power at all.

But the Ephorate has an absolute prohibitory power—power to prohibit, not the execution of this or that particular decision of the government, for then it would be a judge, and the executive power would not be supreme, but to utterly suspend the administration of the law and the government in all its branches. I will call this suspension of all law power the state interdict, (in analogy with the church interdict. The church has long since invented this infallible means to enforce the obedience of those who need her.)

It is, therefore, fundamental principle of a rational and proper government, that the absolute positive power should be complemented by an absolute negative power.

But since the Ephorate is to have no power at all in its hands, and since the executive government is the supreme power, it might be asked how the Ephorate can enforce its declared suspension of the government. But this enforcement will come of itself. For by the publicly announced suspension of all law, all the subsequent acts of government become illegal and null and void. Every body will, therefore, refuse to submit to the decisions of government if the decision is against him; and no one can rely on its decision if it is in his favor.

By the announced suspension of the government, the state officials are declared to be mere private persons, and all their orders to use executive power are declared null and void. From the moment of this announced suspension, every act of the government, whereby it exercises executive power, is resistance to the common will of the people, as expressed through the Ephorate, and hence is a rebellion, and is to be punished as such. But since by such a resistance a government would in advance subject itself to the highest punishment, whereas by quietly awaiting a trial before the people, it might, perhaps, successfully refute the charges of the Ephorate, a resistance of this kind is scarcely to be apprehended.

The announcement of the suspension of the government is at the same time a call for a convention of the people. The greatest misfortune which could possibly happen to them, has forced the people to come together in convention. The Ephorate is, of course, the accusing party, and has to prefer its charges.

It is, of course, not necessary, and would be in most cases impossible, to call all the people together; it is sufficient if all of them take part in the convention. How this is to be accomplished, or how the result of the will of the people is to be clearly ascertained, is a question for the art of politics to solve. Still it will be necessary, from a reason we shall shortly develop, that at various places large gatherings of the people come together.

The resolves of this convention of the people become constitutional law.

It will be, therefore, necessary, first of all, that the convention declare the suspension of the government, and hence its own existence, to be in accordance with the constitution, and that the decision of the convention, no matter which way it may turn, be declared to be supreme law of the land.

Again: So far as the decision itself is concerned, it will necessarily be just, that is, in accordance with the original common will of the people. For if the convention should absolve the government from the charge preferred by the Ephorate, that the government has allowed a crime to remain unpunished, (the fact, as such, must not admit of a doubt; this the Ephorate will have to take care of;) then the convention would thereby resolve that the unpunished crime should be considered a lawful act, which every citizen of the state might commit. Or if the government is charged with contradicting itself, or with an evident injustice, and the convention should absolve the government, then the convention would thereby make that contradictory or unjust principle a fundamental law of the state, applicable to each citizen. The convention will certainly be very careful to avoid a wrong decision.

The losing party, whether it be the government or the Ephorate, must be declared guilty of high treason. The Ephorate, because it has suspended the administration of the law without just cause; the government, because it has abused the power intrusted to it to suppress the law.

Few persons will hold it too hard that the government, if declared guilty, should be pronounced guilty of high treason; but some may consider this too severe a punishment for the Ephorate. It may be said that its members were positively convinced that the commonwealth was in danger, that they have acted conscientiously and have only erred. But the same may be said of the government, and the only answer to this is: Error in such matters is quite as dangerous as a bad intention; and the law should be quite as careful to prevent the former as to suppress the latter. The wisest of the people should be elected to the offices of the government, and none but old and experienced men should be elected as Ephores.

Moreover, it is quite probable that, previous to suspending the government, the Ephorate will consult with the government officials and induce them, if possible, voluntarily to remedy its fault or neglect. By doing this the Ephorate will, at the same time, obtain a thorough knowledge of the merits of the case.

The action of the convention has retroactive power. The judgment pronounced under the rules, which the convention has disapproved, are annulled, and the parties who have suffered under these judgments are reinstated in their previous position without detriment, however, to their opponents, since these have acted only in accordance with the law, although the law has now shown itself to be an invalid law. The damages devolve upon the judges who have pronounced the unjust judgments.

The ground of this retroactive force is this: the party who lost under the unjust judgment was prohibited from appealingfrom it,since thepresumption was, that the will of the judge who pronounced it was in accordance with the common will of the people. At present the contrary appears, and when the ground falls away, so also does the grounded. That judgment, therefore, is annulled.

The positive and negative powers—the government and the ephorate—must be heard before the convention of the people. They can not be parties in their own cause, and hence do not belong to the people. The truth is, all government officials, though before their election they belong to the people, cease to belong to it the moment they become officials. If they are born such officials, as is the case with hereditary princes, they have never belonged to the people. Born aristocrats and noblemen belong to the people, but not after they are elected into the government. Before election, they are not government officials, although they are exclusively eligible. The constitution must make provision that their votes, in view of their probable partiality for the executive power, shall not have an injurious influence upon the actions of the common will. How to make such provision is a problem for the art of politics.

As soon as the candidates for offices are elected, they cease to belong to the people, even though they have not yet accepted the election. Making themselves, as they do, responsible for the public safety and the administration of justice with their own person and freedom, it is necessary that they should have a veto in the legislation; that is to say, they must have the privilege of stating: We will not govern under such laws. But the people then must also have the privilege of replying: If you will not govern under laws which appear good to us, we will elect others.

As soon as the government has been established, the people, as a unity, cease to exist; the people are no longer a people, a Whole, but an aggregate of individuals subject to the government, which is now not a part of the people.

It appears, that the safety of the whole commonwealth depends upon the absolute freedom and personal security of the Ephores. It is they who are to keep the supreme power of the government in proper check. It must be impossible, therefore, that they can ever become dependent upon the government so far as their personal welfare is concerned. They must, therefore, be particularly well paid. Moreover, they are exposed to the persecutions and threats of the government, and have no other defense than the people.

Their persons, must, therefore, be made secure by the law; that is, they must be declared inviolable. The least violence or threat of violence against them is high treason, that is, is an immediate attack upon the commonwealth. The mere threat of violence against them on the part of the government is, indeed, in itself a declaration that all law is suspended; for by such a threat the executive power clearly separates its will from the common will.

Again, the power of the people must surpass by far the power of the government. For if the power of the government were but in any ways equal to that of the people, the government might resolve to resist the people, and a war would be possible between the people and the government; but such a war must be rendered 1 impossible by the constitution. If the executive power of the government were superior to that of the people, or could become superior in a war, the government might at any time undertake to subjugate the people and to reduce them to perfect slavery.

It is, therefore, a condition of the lawfulness of every civil government, that under no circumstances must the power of the government be able to oppose the least resistance to the power of the people as a whole. Every end must be sacrificed to this highest of all ends, which is equivalent to that of maintaining the rule of law itself.

For this reason it is also one of the chief aims of a rational constitution to provide that when the people are called together in convention by the Ephorate, larger masses of people shall congregate in different places, ready to quench any possible resistance on the part of the government.

The following important question might still be asked: How shall the people decide? By a majority of votes or by unanimity?

We have shown that, in the original compact of the people amongst themselves, unanimity is necessary. Each individual must declare that he is desirous of entering with all the others into a commonwealth for the maintenance of the law.

In electing magistrates, the matter already assumes a different shape. True, the minority is not compelled to submit to the majority; but being the weaker party, the minority may be compelled to leave the country within the limits of which the majority conclude to realize their constitution. If the minority does not choose to do so—as is most likely—it will have to indorse the action of the majority.

We said: being the weaker party, the minority may be compelled to leave. The reason is, evidently, because they are not strong enough to resist. The proof seems to consider, therefore, already, that the majority is a very decided one, strong enough to make all resistance hopeless and a war—always an unlawful condition—utterly impossible. Until the minority is so strong, it must simply submit to the majority.

In considering the justice or injustice of the charges preferred by the Ephorate against the government, little or no difference of opinion can possibly arise. The facts of the case must be apparent to all. The only question remains, therefore: is the charged conduct of the government just or not, and shall it be law for us in all future time or not? Only two answers are possible. Yes or no.

If the citizens have but ordinary power of judgment, the question is very easy to decide; and, indeed, it is so intimately connected with the welfare of each citizen, that the answer to it must be, from the nature of the case, almost unanimous, and that an opinion adverse to that of the overwhelming majority may be safely put down as that of either incompetent or partial persons. The more rational citizens, if the first is the case, will try to convince them; and if they can not be convinced, they will make themselves very suspect of being partial. But if the minority can not at all agree with the vote of the majority, then they are certainly not obliged to make their safety dependent upon a law which they do not recognize as just; but neither will they desire to live among men who have adopted such a law, and hence the only course open to them is to emigrate from the state. As this is not always pleasant, it is to be expected that no one will insist on it; unless, indeed, he is convinced that the passage of the law will destroy all safety. He will, on the contrary, rather indorse the vote of the majority, and thus make it unanimous.

It will be seen, that my theory of Rights always assumes the legal validity, not of a majority vote, but of a unanimous vote; although it is admitted that those who refuse to submit to a very decided majority, (which may be fixed at seven eighths, perhaps, or still higher,) do thereby cease to be citizens of the state, and thus make unanimity possible.

Under the described constitution, Law must necessarily and infallibly rule at all times; unless, indeed, the Ephorate should unite with the executive power to suppress the people. This final and greatest obstacle to a just government must also be removed.

The Ephorate must not be dependent upon the executive power, nor be in a position to receive favors from the government. It must have no friendly or social relations with the government. The people will look to this, and the Ephorate will take care not to lose the confidence of the people by such conduct.

Moreover it is advisable, nay, almost necessary, to make the tenure of government offices for lifetime, because the officials lose their other positions in life; but it is equally advisable to make the tenure of the Ephores only for a specific time, since they need not give up their ordinary vocations. When retiring from office, the Ephores must give an account of what has occurred during their term of office; and if any injustice has occurred, which still continues, the new Ephores must suspend the government and call together the people to sit in judgment upon the retiring Ephores as well as upon the government. It is clear, that the guilty Ephores must be punished as guilty of high treason. To have honorably administered the duties of the Ephorate ought to entitle to life-long distinction.

The Ephorate must be elected by the people, not by the government; nor can the Ephores fill vacancies amongst themselves, the new ones being the judges of the old. The mode of their election should be specified in the constitution. No one should be allowed to apply for the Ephorate. The people themselves should select them; and in this manner the people will learn to pay more attention to their wise and great men.

If all these provisions are observed, it is not well possible that the Ephorate will ever combine with the government against the liberties of the people. Unless every one of the first men of the country who may be successively elected into the Ephorate has been bribed when entering upon the duties of that office; and moreover, unless each of them is so sure of a corruptible successor that he can afford to stake his whole security upon it, such a collusion is not well possible. A state of things like this is, however, impossible; or, if it is possible, a people corrupt enough to make it possible may be said to deserve no better fate. Nevertheless, as a strict science should take cognizance even of the greatest improbabilities, the following must be added:

Each private person who calls together the people at large against the will of the government, which government represents the will of the people until the people are assembled in convention—it will always be against that will, since the government can never be induced to call the people togather—is a rebel, since his will is in opposition to the presumptive common will.

But the people, as a whole, never can be a rebel; and the expression rebellion, applied to the people at large, is the greatest absurdity ever uttered. For the people are, in fact and in law, the highest power and the source of all power; responsible only to God. By the convening of the people, the government loses its power, both in fact and in law.

Two cases are possible. Firstly, the people may rise up unanimously of their own accord and sit in judgment upon both Ephorate and government; for instance, when acts of injustice are too horribly apparent. In this case, the uprising is lawful both in form and in substance; for until insecurity and maladministration of the law oppress every citizen, each one takes care only of himself, and tries to get along as best he may. No people have ever uprise nor ever will uprise as one man, until injustice has become too intolerable.

Or, secondly: one or more private persons may call upon the whole people to come together in convention. In this case, these persons are certainly presumptive rebels, and until the people has so assembled, they will undoubtedly be so treated, in accordance with the presumptive common will, by the government, if that government can get hold of them. But an unjust power is always weak, because it is illogical; and because it has common opinion—often even the opinions of those whom it uses as tools—against itself. The more unjust it is the more impotent and weak; and the more probability, therefore, that those persons who have called the people together will escape the clutches of government.

The people may obey this call or may disregard it. If they assemble in convention, the executive power vanishes into nothingness, and the people sit in judgment upon it and upon those who have called the people together. If the people indorse the charges of the latter, they thereby declare their will to have been the true common will; and its substance being acknowledged as the true law, its want of legal form is now supplied by the indorsement of the people. If, on the contrary, the people pronounce their charges unfounded, then these persons become rebels, and are condemned as such by the people.

If the people disregard their call, this disregarding proves either that oppression and public insecurity have not yet become general enough, or that they do not exist; or secondly, that the people have not yet awakened to a desire to maintain their freedom and to a knowledge of their rights; that they are not yet fit to decide upon the great law dispute brought before them, and hence that they ought not to have been called together. The persons who issued the call are, therefore, punished—with perfect external justice, as rebels; although, according to internal justice, or in their conscience, they may be martyrs of true justice. They are perhaps, innocent in intention; but in deed they are punished as guilty. They ought to have had a better knowledge of the people. For if a people unfit to maintain its freedom had come together, it would have resulted in a general annihilation of all law.

All these provisions concerning the election of executive officers, and concerning the establishment of a checking power, are provisions concerning the administration of the law; and all these provisions together are called the Constitution.

A lawful and rational constitution is unchangeable, valid for all time; and is necessarily established as such in its preamble.

For each single individual in the commonwealth must agree to it; and hence it is guaranteed through the original common will. Each individual has become a member of the state only under the guarantee of this particular constitution. He can not be compelled to approve another one. If, therefore, such another one contradictory of the original constitution should, nevertheless, be carried through, he would be compelled to leave the state if he could not approve of it. But since he can not be required to do this under the original agreement, it follows that it is absolutely unlawful to change the constitution, even if only one person is opposed to it. To effect a change of this kind in the constitution, therefore, absolute unanimity is required.

The distinction between the absolute unanimity requisite for this change of the constitution and the above relative unanimity is this, that the latter permits the exclusion of several persons from the state, while the former does not. In the former, the right to remain a citizen of the state is absolute; in the latter, it is conditioned by his joining the majority.

We have said: A constitution which is a lawful one, that is, which provides for a responsible executive power, and for a checking power, is unchangeable; that is to say, within its general scope. Infinite modifications are, of course, possible; and in so far even the best constitution is subject to amendment.

If the constitution, however, is not a lawful one then it may be changed into a lawful one; and no one has the right to say: I do not wish to give up the previous constitution. For the toleration of the previous illegal constitution was excusable only on the ground of previous ignorance or insensibility to the Conception of Rights; but as soon as that conception is clearly apprehended, and the people have become capable of realizing it, each one is bound to accept it; for right shall rule.

It is different with the amendments to the civil legislation. These will make themselves. At lirst, the state consists of a certain fixed number of men, carrying on these or those professions, etc.; and the civil law is made accordingly. But as the people increase and new branches of business are created—of course, none must be created without the consent of the state—the laws also must change and be made to conform to the changed people.

The whole described mechanism is requisite for the realization of a lawful relation between men; but it is not at all necessary that all these springs and wheels are always externally and visibly working. On the contrary, the better a state is organized the less it will be perceived, because its internal weight and quiet power cancel in advance all necessity for its exercise. The state prevents itself from being necessary.

The first object of the state is to decide the disputes of its citizens concerning their property. The more simple, clear, and comprehensive the law is, and the more infallible its execution, the less will be the number of these disputes, because every one may know with tolerable certainty what belongs to him or not, and will not be likely, therefore, to make the—presumptively abortive—attempt to secure the property of another. If the few disputes which may at first arise through error, are decided correctly in the conviction of both parties, there will be no crime. For where else is the source of crime concealed but in greediness and passions excited thereby, or in poverty and want, which are impossible if the law carefully watches over the property of each? And how can crimes arise if their sources are stopped? A good civil law and a strict execution thereof utterly cancel the application of the criminal law. Moreover, who will dare to commit a crime if he knows surely that he will be detected and punished? A half a century of such a state of things, and the conceptions of crimes will have vanished from the consciousness of the happy people who are governed according to such laws.

If the executive power has less to do, the possibility of its being unjust is lessened in an equal degree. The rare manifestation of the power of government will become an act which will excite the veneration of the people and of themselves; all eyes will be turned upon the government, and the necessary reverence of the people will make the government reverence itself, if it should not do so otherwise.

The power of the Ephorate also will find no occasion for its application, because the executive power will always be just, and neither interdict nor conventions of the people will ever be required.

If, therefore, any one should possibly allow himself to be frightened by these conceptions, and should imagine heaven knows what horrors when he reads of conventions of the people to sit in judgment upon governments, he has two good reasons to quiet himself. Firstly, it is only the lawless mob which commits outrages, and not a legally assembled people, consulting in an established form of proceeding. (The form is, by the by, one of the greatest benefits for mankind. By forcing man to pay attention to certain things, his attention generally is concentrated. That man has not the interest of mankind at heart who wishes to take away from them all forms.)

Secondly: All these contrivances are invented, not in order to be used, but in order to make the occurrence of cases, which might require their use, impossible. Precisely, in the states wherein they are established, they are superfluous; and where they are not established, they are sadly needed.

The science which considers a particular empirically determined state, and proceeds to develop how the Science of Rights may be properly realized in such a state, is called the Science of Politics. All the problems of such a science have no connection with our science, which is purely a priori, and must be carefully separated from it.

To this class of problems belong all questions which may be raised concerning the particular determination of the one and only lawful constitution. For our established conception of a constitution solves only the problem of pure reason: How can the Conception of Rights be realized in the sensuous world? If that constitution is, therefore, to be further determined, this can be done only by empirical facts. We now proceed, in conclusion, to specify the possible questions which may arise in this connection, and shall show that their solution depends upon the accidental position of the states to which the constitution is to be applied.

Our first a priori established rule in considering the constitution was this: That the power of a commonwealth must be transferred, and can not remain in the hands of the people. The question here arises: Shall it be transferred to one or to many; or shall the state, in regard to the persons who constitute its government, be a monocracy or an aristocracy? For a pure democracy is not a legal form of government.

The reply is: Both forms of government are lawful; it is a question of expediency which to choose. The ground from which to decide this question I will state in a few words: Of many, who modify each other's opinions more wisdom is to be expected; but on the other hand, they are slower, more inclined to throw responsibility the one upon the other. Nor will the power of the Ephorate be likely to have the proper influence upon them, since they will feel themselves more secure in the great number of the guilty. A perpetual president may, perhaps, be more liable to err; but power in his hands is more effective, and he is more responsible to the Ephorate. Hence, in states which need chiefly a strong government, partly because the people have not yet been used to strict obedience to the law, or partly by reason of their loose relations to other nations, a monocracy probably has the preference; but in states which have already been for some time under such an orderly government and in which the law works by its mere internal power, the republican form of government has the preference. It is clear, that all subordinate officials must be appointed by the highest regent, whether one or many, and must be subject only to his or their commands. For only the highest government (the regent) is responsible to the nation, and responsible only for the administration of law and justice. But to be so responsible, the regent must have complete control over the selection of those persons through whom justice is administered.

Another question is, whether it is better that the people should directly elect their highest representatives, (as is the case in a proper and lawful democracy,) or through mediate representatives; or whether, perhaps, it is better to introduce hereditary descent of office?

In regard to the Ephorate, this question has already been decided. They must be directly elected by the people. In regard to the executive power of the government, the decision can only be supplied by empirical facts, particularly by the degree of culture which a people possesses, and which is attainable only through a previous wise and just legislation. A people which is to elect its own rulers must be very far advanced in culture, for the election must be unanimous in order to be valid. But since this unanimity need only be relative, the fear always remains that a part of the minority will have to submit to rulers whom they do not like, or be compelled to emigrate. The constitution ought, however, to remove all occasions for disputes and party divisions among its citizens. Now, until the people have attained this high degree of culture, it is better that they should, in their constitution, delegate their right of election (of franchise)—which, of course, they can thus delegate away only by absolute unanimity—and thus introduce a fixed succession of rulers. In a republic, the rulers may be allowed to fill vacancies in their own body; for if the Ephorate is strong enough, they will take good care to make the best selections. In a monocracy, only the people, it would seem, could elect their ruler; but since the people are not allowed to elect, they can only constitute their ruler hereditary. This hereditary descent has, moreover, other advantages, which render advisable its introduction; for instance, the monarch is utterly cut off from the people; is born and dies without any private relation to the people.

Questions might arise concerning the conditions of the contract between the people and their rulers, their personal rights, privileges, incomes, and the sources of these incomes. But all these questions must be decided empirically. The sources of income, or the principle of finances, we shall speak of hereafter. Each one must contribute according to the ratio in which he needs protection, and the protective power must correspond to the protection needed. This furnishes us at once with a standard of taxation. The rate of taxation is changeable as the requirement of protection is changeable. The ruler or rulers can, of course, be held accountable for the administration of the finances, through the Ephorate; for it is one of the rights of the citizens not to pay taxes for any but public purposes.

A question might be raised concerning the nature of the judiciary. It has been proved, that the executive power must also be the highest judicial power, from which there is no appeal. It is also clear that subordinate courts and judges will be appointed, from whom appeal can be taken. So far as the form of the judicial investigation or the trial is concerned, it is clear that judicial proofs are furnished like any other proofs, and hence the procedure of courts is based chiefly upon logic and sound common sense. The sufficiency or insufficiency of the proof is decided by the judge. One important point is, however, to be remembered concerning the proof by oath. There are two ways of considering the oath. It may be viewed simply as a solemn assurance, the external formalities accompanying it having no other end in view than to remove recklessness and to induce witnesses to consider the importance of such an assurance; in which case, the presupposition is, that he who is capable of publicly asserting a falsehood will also swear a false oath. Or an oath is regarded as something more than such a solemn assurance, in which case the presupposition is, that a person who will not hesitate to publicly assert a falsehood will hesitate to swear a false oath. Under the first supposition, it may be asked: Why should the state or the opposite party in a trial be compelled to accept such a statement on oath as absolute fact, and why should the judge be compelled to base his decision upon it, when the whole government is based, not upon trust, but upon distrust?

Under the second presupposition, there arises this same question, and, moreover, the following higher question: What is there supposed to be in an oath calculated to restrain a man, who will publicly assert a falsehood, from making a false assertion under oath? Since he does not fear the guilt of falsehood, it follows that he believes the calling upon God as a witness in the oath to be some sort of a supernatural, incomprehensible, and magical means of incurring God's anger by swearing falsely. This is, without doubt, in the true nature of a superstition, and is utterly at variance with moral religion. The state, therefore, in prescribing oaths, calculates upon the continuance of immorality, and must do all in its power to promote immorality, since it has staked its own existence upon a view of the oath, which is immoral. But this is absurd. Hence, the oath can only be viewed as a solemn assurance, and should not be administered except in private cases, where one party is willing to accept the sworn statement of the other as decisive. Volenti non fit injuria. On a public occasion the oath should never be administered; nor will there be any need of oaths, if the state is properly organized.

Finally, a question might be raised concerning the manner of convening the people for the election of the Ephorate, or concerning the voting in convention, when the people are called together by the Ephorate to sit in judgment upon the executive power. As for the election of the Ephores—whose number is a problem of expediency and to be decided by the number of the population and the culture of the people—a higher degree of culture requiring fewer Ephores—it will be immediately apparent that it should be conducted by the old Ephores, but in a manner which will prevent them from controlling the election, since the new Ephores are to be their judges. When passing judgment upon the executive power, the voting will have to be under the superintendence of men especially appointed for the purpose, the Ephores being themselves an interested party in the case.

[We append 's later declaration on the subject of the Ephorate, which is taken from his Science of Rights of the year 1812: "Many years ago I made a proposition to establish a very complicated checking power—the Ephorate. The principles of law which led me to do so are perfectly correct. It is a very true principle, that the government officials should be made responsible to each citizen, and it would be well if such a responsibility could be realized in the sensuous world. It is also clear, that no man ought to be a member of the government whose understanding of the law is considered insufficient by the Ephorate or by the people themselves. But so far as the practicability of such a checking power is concerned, I must now, after mature consideration, decide against it. For, who shall again check the Ephorate, that it may not commence a revolution for some reason or another, although the government has not violated the law? Again: Will not the government, having all power in its hands, try to suppress the Ephorate at the very start? The Roman patricians will bear witness; for they killed the tribunes of the people. The Ephores once killed, government would find arguments and false charges enough to justify its conduct. Moreover, it has certainly been proved, that the decision of the people is always formaliter law, because there is no higher judge. But how materialiter? Is not more confidence to be placed in a number of the wisest of the people than in a majority which has been gathered together, God only knows how?

"This consideration did not escape me at the time. I admitted all this, but added, that a people whose Ephores, being selected from the very best of the people, could be corrupt enough for such conduct, did not deserve a better government, and were not fit for a better one. This is, after all, the truth of the case. The realization of a checking power as a part of the constitution is not practicable, because mankind at large is too bad as yet; but until men grow better, they will have to get along with a government which needs no really established Ephorate.

"One circumstance, however, seems to have escaped all, who have expressed surprise at this idea of an Ephorate; namely, that this idea is, in point of fact, realized wherever a civilized people is to be found. As soon as thinking is developed among the people, a power which observes and checks the action of the government is also developed. This power has two purposes to fulfil: To warn the government; and secondly, if that is of no avail, to call the people together. The first purpose it generally accomplishes, unless free speech is forbidden, (which is a dangerous undertaking on the part of the government,) and government usually listens to those warnings and obeys them. For no government dares to remain behind the people. But if government does not listen to them, the people are called together. As a sure proof that this is practicable, I need only say that it has been done in this age and under our very eyes, and that it has resulted in the overthrow of the government. [Alluding to the French Revolution.—.] It has also, however, as far as can be judged at present, resulted disastrously for the people; not by accident, but in obedience to a necessary law. For so long as there are more good than bad people, it may be safely assumed that the propositions of the bad, and not those of the good and wise, will be adopted. Hence, the expedient of calling the people together through the Ephorate, or of revolutions, will be only a substitution of one evil for another and greater one, until a complete change has been effected in the human race. A greater evil: for the principles of government, which are always conformable to the character of the age, will not change, and the regent of a people which has revolutionized will try all the more to root his power firmer, in order to prevent the recurrence of a revolution. The only thing from which we can expect improvement is the progress of culture and morality, and a consequent steadily increasing influence of the Ephorate in this progress."]