OF THE SUBORDINATION OF THE POWERS OF THE COMMON-WEALTH.
Sect. 149. THOUGH in a constituted commonwealth, standing upon its own
basis, and acting according to its own nature, that is, acting for the
preservation of the community, there can be but one supreme power, which
is the legislative, to which all the rest are and must be subordinate,
yet the legislative being only a fiduciary power to act for certain
ends, there remains still in the people a supreme power to remove or
alter the legislative, when they find the legislative act contrary to
the trust reposed in them: for all power given with trust for the
attaining an end, being limited by that end, whenever that end is
manifestly neglected, or opposed, the trust must necessarily be
forfeited, and the power devolve into the hands of those that gave it,
who may place it anew where they shall think best for their safety and
security. And thus the community perpetually retains a supreme power of
saving themselves from the attempts and designs of any body, even of
their legislators, whenever they shall be so foolish, or so wicked, as
to lay and carry on designs against the liberties and properties of the
subject: for no man or society of men, having a power to deliver up
their preservation, or consequently the means of it, to the absolute
will and arbitrary dominion of another; when ever any one shall go about
to bring them into such a slavish condition, they will always have a
right to preserve, what they have not a power to part with; and to rid
themselves of those, who invade this fundamental, sacred, and
unalterable law of self-preservation, for which they entered into
society. And thus the community may be said in this respect to be always
the supreme power, but not as considered under any form of government,
because this power of the people can never take place till the
government be dissolved.
Sect. 150. In all cases, whilst the government subsists, the legislative
is the supreme power: for what can give laws to another, must needs be
superior to him; and since the legislative is no otherwise legislative
of the society, but by the right it has to make laws for all the parts,
and for every member of the society, prescribing rules to their actions,
and giving power of execution, where they are transgressed, the
legislative must needs be the supreme, and all other powers, in any
members or parts of the society, derived from and subordinate to it.
Sect. 151. In some commonwealths, where the legislative is not always in
being, and the executive is vested in a single person, who has also a
share in the legislative; there that single person in a very tolerable
sense may also be called supreme: not that he has in himself all the
supreme power, which is that of law-making; but because he has in him
the supreme execution, from whom all inferior magistrates derive all
their several subordinate powers, or at least the greatest part of them:
having also no legislative superior to him, there being no law to be
made without his consent, which cannot be expected should ever subject
him to the other part of the legislative, he is properly enough in this
sense supreme. But yet it is to be observed, that tho’ oaths of
allegiance and fealty are taken to him, it is not to him as supreme
legislator, but as supreme executor of the law, made by a joint power of
him with others; allegiance being nothing but an obedience according to
law, which when he violates, he has no right to obedience, nor can claim
it otherwise than as the public person vested with the power of the law,
and so is to be considered as the image, phantom, or representative of
the commonwealth, acted by the will of the society, declared in its
laws; and thus he has no will, no power, but that of the law. But when
he quits this representation, this public will, and acts by his own
private will, he degrades himself, and is but a single private person
without power, and without will, that has any right to obedience; the
members owing no obedience but to the public will of the society.
Sect. 152. The executive power, placed any where but in a person that
has also a share in the legislative, is visibly subordinate and
accountable to it, and may be at pleasure changed and displaced; so that
it is not the supreme executive power, that is exempt from
subordination, but the supreme executive power vested in one, who having
a share in the legislative, has no distinct superior legislative to be
subordinate and accountable to, farther than he himself shall join and
consent; so that he is no more subordinate than he himself shall think
fit, which one may certainly conclude will be but very little. Of other
ministerial and subordinate powers in a commonwealth, we need not speak,
they being so multiplied with infinite variety, in the different customs
and constitutions of distinct commonwealths, that it is impossible to
give a particular account of them all. Only thus much, which is
necessary to our present purpose, we may take notice of concerning them,
that they have no manner of authority, any of them, beyond what is by
positive grant and commission delegated to them, and are all of them
accountable to some other power in the commonwealth.
Sect. 153. It is not necessary, no, nor so much as convenient, that the
legislative should be always in being; but absolutely necessary that the
executive power should, because there is not always need of new laws to
be made, but always need of execution of the laws that are made. When
the legislative hath put the execution of the laws, they make, into
other hands, they have a power still to resume it out of those hands,
when they find cause, and to punish for any maladministration against
the laws. The same holds also in regard of the federative power, that
and the executive being both ministerial and subordinate to the
legislative, which, as has been shewed, in a constituted commonwealth
is the supreme. The legislative also in this case being supposed to
consist of several persons, (for if it be a single person, it cannot but
be always in being, and so will, as supreme, naturally have the supreme
executive power, together with the legislative) may assemble, and
exercise their legislature, at the times that either their original
constitution, or their own adjournment, appoints, or when they please;
if neither of these hath appointed any time, or there be no other way
prescribed to convoke them: for the supreme power being placed in them
by the people, it is always in them, and they may exercise it when they
please, unless by their original constitution they are limited to
certain seasons, or by an act of their supreme power they have adjourned
to a certain time; and when that time comes, they have a right to
assemble and act again.
Sect. 154. If the legislative, or any part of it, be made up of
representatives chosen for that time by the people, which afterwards
return into the ordinary state of subjects, and have no share in the
legislature but upon a new choice, this power of chusing must also be
exercised by the people, either at certain appointed seasons, or else
when they are summoned to it; and in this latter case the power of
convoking the legislative is ordinarily placed in the executive, and has
one of these two limitations in respect of time: that either the
original constitution requires their assembling and acting at certain
intervals, and then the executive power does nothing but ministerially
issue directions for their electing and assembling, according to due
forms; or else it is left to his prudence to call them by new elections,
when the occasions or exigencies of the public require the amendment of
old, or making of new laws, or the redress or prevention of any
inconveniencies, that lie on, or threaten the people.
Sect. 155. It may be demanded here, What if the executive power, being
possessed of the force of the commonwealth, shall make use of that
force to hinder the meeting and acting of the legislative, when the
original constitution, or the public exigencies require it? I say, using
force upon the people without authority, and contrary to the trust put
in him that does so, is a state of war with the people, who have a right
to reinstate their legislative in the exercise of their power: for
having erected a legislative, with an intent they should exercise the
power of making laws, either at certain set times, or when there is need
of it, when they are hindered by any force from what is so necessary to
the society, and wherein the safety and preservation of the people
consists, the people have a right to remove it by force. In all states
and conditions, the true remedy of force without authority, is to oppose
force to it. The use of force without authority, always puts him that
uses it into a state of war, as the aggressor, and renders him liable to
be treated accordingly.
Sect. 156. The power of assembling and dismissing the legislative,
placed in the executive, gives not the executive a superiority over it,
but is a fiduciary trust placed in him, for the safety of the people, in
a case where the uncertainty and variableness of human affairs could not
bear a steady fixed rule: for it not being possible, that the first
framers of the government should, by any foresight, be so much masters
of future events, as to be able to prefix so just periods of return and
duration to the assemblies of the legislative, in all times to come,
that might exactly answer all the exigencies of the commonwealth; the
best remedy could be found for this defect, was to trust this to the
prudence of one who was always to be present, and whose business it was
to watch over the public good. Constant frequent meetings of the
legislative, and long continuations of their assemblies, without
necessary occasion, could not but be burdensome to the people, and must
necessarily in time produce more dangerous inconveniencies, and yet the
quick turn of affairs might be sometimes such as to need their present
help: any delay of their convening might endanger the public; and
sometimes too their business might be so great, that the limited time of
their sitting might be too short for their work, and rob the public of
that benefit which could be had only from their mature deliberation.
What then could be done in this case to prevent the community from being
exposed some time or other to eminent hazard, on one side or the other,
by fixed intervals and periods, set to the meeting and acting of the
legislative, but to intrust it to the prudence of some, who being
present, and acquainted with the state of public affairs, might make use
of this prerogative for the public good? and where else could this be so
well placed as in his hands, who was intrusted with the execution of the
laws for the same end? Thus supposing the regulation of times for the
assembling and sitting of the legislative, not settled by the original
constitution, it naturally fell into the hands of the executive, not as
an arbitrary power depending on his good pleasure, but with this trust
always to have it exercised only for the public weal, as the occurrences
of times and change of affairs might require. Whether settled periods of
their convening, or a liberty left to the prince for convoking the
legislative, or perhaps a mixture of both, hath the least inconvenience
attending it, it is not my business here to inquire, but only to shew,
that though the executive power may have the prerogative of convoking
and dissolving such conventions of the legislative, yet it is not
thereby superior to it.
Sect. 157. Things of this world are in so constant a flux, that nothing
remains long in the same state. Thus people, riches, trade, power,
change their stations, flourishing mighty cities come to ruin, and prove
in times neglected desolate corners, whilst other unfrequented places
grow into populous countries, filled with wealth and inhabitants. But
things not always changing equally, and private interest often keeping
up customs and privileges, when the reasons of them are ceased, it often
comes to pass, that in governments, where part of the legislative
consists of representatives chosen by the people, that in tract of time
this representation becomes very unequal and disproportionate to the
reasons it was at first established upon. To what gross absurdities the
following of custom, when reason has left it, may lead, we may be
satisfied, when we see the bare name of a town, of which there remains
not so much as the ruins, where scarce so much housing as a sheepcote,
or more inhabitants than a shepherd is to be found, sends as many
representatives to the grand assembly of law-makers, as a whole county
numerous in people, and powerful in riches. This strangers stand amazed
at, and every one must confess needs a remedy; tho’ most think it hard
to find one, because the constitution of the legislative being the
original and supreme act of the society, antecedent to all positive laws
in it, and depending wholly on the people, no inferior power can alter
it. And therefore the people, when the legislative is once constituted,
having, in such a government as we have been speaking of, no power to
act as long as the government stands; this inconvenience is thought
incapable of a remedy.
Sect. 158. Salus populi suprema lex, is certainly so just and
fundamental a rule, that he, who sincerely follows it, cannot
dangerously err. If therefore the executive, who has the power of
convoking the legislative, observing rather the true proportion, than
fashion of representation, regulates, not by old custom, but true
reason, the number of members, in all places that have a right to be
distinctly represented, which no part of the people however incorporated
can pretend to, but in proportion to the assistance which it affords to
the public, it cannot be judged to have set up a new legislative, but to
have restored the old and true one, and to have rectified the disorders
which succession of time had insensibly, as well as inevitably
introduced: For it being the interest as well as intention of the
people, to have a fair and equal representative; whoever brings it
nearest to that, is an undoubted friend to, and establisher of the
government, and cannot miss the consent and approbation of the
community; prerogative being nothing but a power, in the hands of the
prince, to provide for the public good, in such cases, which depending
upon unforeseen and uncertain occurrences, certain and unalterable laws
could not safely direct; whatsoever shall be done manifestly for the
good of the people, and the establishing the government upon its true
foundations, is, and always will be, just prerogative, The power of
erecting new corporations, and therewith new representatives, carries
with it a supposition, that in time the measures of representation might
vary, and those places have a just right to be represented which before
had none; and by the same reason, those cease to have a right, and be
too inconsiderable for such a privilege, which before had it. ’Tis not a
change from the present state, which perhaps corruption or decay has
introduced, that makes an inroad upon the government, but the tendency
of it to injure or oppress the people, and to set up one part or party,
with a distinction from, and an unequal subjection of the rest.
Whatsoever cannot but be acknowledged to be of advantage to the society,
and people in general, upon just and lasting measures, will always, when
done, justify itself; and whenever the people shall chuse their
representatives upon just and undeniably equal measures, suitable to the
original frame of the government, it cannot be doubted to be the will
and act of the society, whoever permitted or caused them so to do.