Nothing is more difficult for a man than to control his passions, or more difficult for a legislator than to control the passions of the people of whom he forms a part, to say nothing of his own. "Aristotle," says Montesquieu, "wanted to gratify, first, his jealousy of Plato and then his love for Alexander. Plato was horrified at the tyranny of the Athenians. Machiavel was full of his idol, the Duke of Valentinois. Thomas More, who was wont to speak of what he had read rather than of what he had thought, wanted to govern every state upon the model of a Greek city. Harrington could think of nothing but an English republic, while hosts of writers thought confusion must reign wherever there was no monarchy. Laws are always in contact with the passions and prejudices of the legislator, whether these are his alone, or common to him and to his people. Sometimes they pass through and merely take colour from the prejudice of the day, sometimes they succumb to it and make it part of themselves."
This is just the opposite of what should be. The legislator should be to the people what conscience is to the heart of the individual. He should understand its besetting passions in all their bearings and not be deceived by subterfuge or hypocrisy. Sometimes he must attack them boldly, sometimes play off one against another, or favour one at the expense of another which is less influential, now yielding ground, now recovering it, but he must ever be skilful and impartial and never be intimidated, diverted from his purpose, nor deceived by his natural enemies.
He should be, so to speak, more conscientious than conscience itself, because he must never forget that he has to obey to-morrow the law which he makes to-day—semel jussit semper paruit. He must, therefore, be absolutely disinterested, a thing most difficult for him, but for which conscience requires no effort.
Not only must he be without passion, but he must have trained himself to be impervious to passion, which is much more. We must conceive of him as a conscience that has risen from the ashes of passion.
As Rousseau said, "to discover the perfect ruler for human society we must find a superior intelligence who has seen all the passions of man but has experienced none of them, who has had no sort of relations with our nature but who knows it to the core, whose happiness is not dependent on us, but who wishes to promote our welfare, in a word, one who aims at a distant renown, in a remote future, and who is content to labour in one age and to enjoy in another."
This is why the ingenious Greeks imagined certain legislators going into exile to some remote and unknown retreat, as soon as they had made the people adopt and swear obedience to their laws until their return. It may have been to bind the citizens by this oath, but is it not equally probable that they wished to escape from the laws which they themselves had made? Possibly they felt that they could make them all the stricter with the prospect of being able to evade obedience of them by flight.
Proudhon said: "I dream of a republic so liberal that in it I shall be guillotined as a reactionary." Lycurgus was perhaps like Proudhon, in that he founded so severe a republic that he knew he could not live under it and resolved to leave it as soon as it was established. Solon and Sylla remained in the states to which they had given laws; we must therefore place them higher than Lycurgus who has perhaps this excuse for himself that in all probability he never existed at all.
But the legend remains to show that the legislator should be so superior to his own passions and to the passions of his people, that, as legislator, he should make laws before which, as a man, he should stand in awe.
This moderation, in the sense in which we use the term, has sometimes led the legislator to suggest or insinuate laws rather than impose them. This is not always possible, but it is so occasionally. Montesquieu tells us the following of St. Louis: "Seeing the manifold abuses of justice in his time he endeavoured to make them unpopular. He made many regulations for the courts in his own domain, and in those of his barons, and he was so successful, that only a short time after his death his methods were adopted in the courts by many of his nobles. Thus this prince attained his object, although his regulations were not promulgated as a general law for the whole kingdom, but merely as an example which any one might follow in his own interest. He got rid of an evil by making patent the better way. When men saw in his courts and in those of his nobles more reasonable and natural forms of procedure, more conformable to religion and morality, more favourable to public tranquillity and to the security of persons and property, they adopted the substance and abandoned the shadow. To suggest where you cannot compel, to guide where you cannot demand, that is the supreme form of skill."
Montesquieu adds with some optimism though no doubt the idea is encouraging: "Reason has a natural empire, we resist it, but it triumphs over our resistance; we persist in error for a time but we always have to return to it."