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that an inferior power should prescribe to a superior, or any, but the supreme, make laws, according as the power of making laws is placed, such is the form of the commonwealth.”
The supremacy, or sovereignty of all po- Legislative litical power, is the legislative power in a state ; and the first and fundamental positive law of all commonwealths, is the establishing of the legislative power. This, in fact, is the act of the community's vesting their own right or power in their delegates or trustees : and the English community had certainly the fame right, as every other community, upon uniting in society, to make this delegation, or create this trust in whatever manner they chofe ; in other words, they were perfectly free to adopt a democratical, an aristocratical, or an hereditary, or an elective monarchical form of government. This was, as I have before proved, a freedom given by God to each community ; fingula species regiminis funt de jure gentium ; but the choice being once made, or these delegates and trustees having been once nominated and appointed, the submission of the people to them is jure divina. *“ This legislative is not only the supreme
* Locke, ubi supra.
power of the commonwealth, but facred and unalterable in the hands, where the commu. nity have once placed it; not can any edict of any body else, in what form foever con, ceived, or by what power soever backed, have the force and obligation of a law, which has not its fanction from that legiNative, which the public has chosen and appointed ; and fo, in a constituted commonwealth, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate,"
This nation or community, have for many centuries chosen, and the majority, at this hour continue to chuse a form of government partaking of the democratical, aristocratical, and monarchical; for * « these three species of government have all of them their several perfecțions and imperfections: democracies are usu. ally the best calculated to direct the end of a law; aristocracies to invent the means, by which that end shall be obtained; and monarchies to carry those means into execution ; and the ancients, as was observed, had, in general, no idea of any other permanent form of governa ment, but these three ; for though Cicero †
* Blakist. Introd. to his Comm. p. 50, in the quarto edition. + In his Fragments de Rep. c. ii.
declares himself of opinion, “ effe optimè con- The ideas of ftitutam rempublicam, quæ ex tribus generibus concerning a illis, regali, optimo, et populari fit modicè con- ment. fufa ;" yet Tacitus treats this notion of a . mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one, that if effected could never be lasting or fecure *.
“ But, happily for us of this island, the Exemplified in British constitution has long remained, and I trust will long continue, a standing exception to the truth of this observation. For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy ; and, as the legislature of the kingdom is entrusted to three distinct powers entirely in. dependent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical assembly of persons selected for their piety, their birth, their wifdom, their valour, or their property; and, thirdly, the house of commons, freely chosen by the people, from among themselves, which
+ Cunctas nationes et urbes, populus, ant primores, aut finguli regunt: delecta ex his et constituta reipublicæ forma laudari faciliùs, quam evenire ; vel, fi evenit haud diuturna effe poteft. Ann. 1. 4.
makes it a kind of democracy; as this aga gregate body, actuated by different springs, and attentive to different interests, compoles the British parliament, and has the supreme difpofal of every thing, there can no inconvenience be attempted by either of the three branches, but will be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation, which it shall think inexpedient or dangerous. Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society."
It is not only allowed by our own authors, which is very natural, but also by all foreign writers, who have treated upon the constitution and laws of England, that the mixed form of our government gives it a decided preference over every other government ancient or modern. The first part then of our conftitution, which comes under my confideration, is the investiture or deposit of the fupreme legislative power, with the fiduciary delegates of the community; and when I do this, I recede in no degree from the principles I have already laid down; nor am I conscious or apprehensive, that they tend to the utter subversion, not only of all government, in all modes, and to all stable Securities to ra
tional freedom, but to all the rules and principles of morality itself. On the contrary, from them alone can I trace a principle of coercion and The foregoing coaction over the multitude. But before I duce coercion
over the people, enter minutely upon each separate branch of the legislature, it will be requisite to form a just and precise idea of the nature and general effects of this commission, or gift of power to them all jointly : we have, I hope, proved, that it was done by the consent and approbation of the community; and I have not as yet met with any writer, who has attempted to prove, that the hereditary peers of this realm, or a given number of elected commoners possess any particle of legislative authority, independently of the community. Many indeed have, by deducing the royal power and prerogative immediately from Almighty God, attempted to place the king above and wholly independent of the community. The proper place for examining this doctrine will be, in considering the rights, powers, and prerogatives of the king : I fall, however, for the present presume, what I hope hereafter to prove, that as the law makes and qualifies the king, and the nation of community makes the laws, so the king cannot be wholly above nor independent of the laws or the community,