Page images
PDF
EPUB

that an inferior power should prescribe to a fuperior, or any, but the fupreme, make laws, according as the power of making laws is placed, fuch is the form of the commonwealth."

power.

The fupremacy, or fovereignty of all po- Legislative litical power, is the legislative power in a ftate; and the firft and fundamental pofitive 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 fociety, to make this delegation, or create this truft 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; fingulæ fpecies regiminis funt de jure gentium; but the choice being once made, or these delegates and trustees having been once nominated and appointed, the fubmiffion of the people to them is jure divino. *« This legislative is not only the fupreme * Locke, ubi fupra.

[blocks in formation]

power of the commonwealth, but facred and unalterable in the hands, where the community have once placed it; nor can any edict of any body elfe, in what form foever conceived, or by what power foever backed, have the force and obligation of a law, which has not its fanction from that legislative, which the public has chofen and appointed; and fo, in a conftituted commonwealth, there can be but one fupreme power, which is the legislative, to which all the reft are and must be fubordinate,"

This nation or community, have for many centuries chofen, and the majority, at this hour continue to chuse a form of government partaking of the democratical, ariftocratical, and monarchical; for *" these three species of government have all of them their feveral perfections and imperfections: democracies are ufually the beft calculated to direct the end of a law; ariftocracies to invent the means, by which that end fhall be obtained; and monarchies to carry thofe means into execution; and the ancients, as was obferved, had, in general, no idea of any other permanent form of government, 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

declares himself of opinion, "effe optimè conftitutam rempublicam, quæ ex tribus generibus illis, regali, optimo, et populari fit modicè confufa;" yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a vifionary whim, and one, that if effected could never be lafting or fecure *.

The ideas of concerning a

the ancients

mixed govern

ment.

our own.

"But, happily for us of this ifland, the Exemplified in British conftitution has long remained, and I trust will long continue, a ftanding exception to the truth of this obfervation. 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 arẹ to be found in the most abfolute monarchy; and, as the legislature of the kingdom is entrusted to three diftinct powers entirely independent of each other; first, the king; fecondly, the lords fpiritual and temporal, which is an aristocratical affembly of perfons felected for their piety, their birth, their wif dom, 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, aut primores, aut finguli regunt: delecta ex his et conftituta reipublicæ forma laudari faciliùs, quam evenire; vel, fi evenit haud diuturna effe poteft. Ann. 1. 4.

[ocr errors]

L

makes

makes it a kind of democracy; as this aggregate body, actuated by different fprings, and attentive to different interests, composes the British parliament, and has the fupreme 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, fufficient to repel any innovation, which it fhall think inexpedient or dangerous. Here then is lodged the fovereignty of the British conftitution; and lodged as beneficially as is poffible for fociety."

It is not only allowed by our own authors, which is very natural, but also by all foreign writers, who have treated upon the conftitution 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 inveftiture or depofit 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 apprehenfive, that they tend to the utter fubverfion, not only of all government, in all modes, and to all ftable fecurities 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 coaction over the multitude. But before I

1

enter minutely upon each feparate branch of the legislature, it will be requifite to form a juft and precife idea of the nature and general effects of this commiffion, or gift of power to them all jointly: we have, I hope, proved, that it was done by the confent 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 poffefs 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 confidering the rights, powers, and prerogatives of the king: I fhall, however, for the prefent prefume, what I hope hereafter to prove, that as the law makes and qualifies the king, and the nation of community makes the laws, fo the king cannot be wholly above nor independent of the laws or the community,

When

The foregoing principles produce coercion over the people,

« PreviousContinue »