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of those, whose hands it is in, to be managed for the public good for the laws that concern fubjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners, depending much upon their actions, and the variation of defigns and interefts, must be left in great part to the prudence of thofe, who have this power committed to them, to be managed by the best of their fkill, for the advantage of the common-wealth.

§. 148. Though, as I faid, the executive and federative power of every community be really diftinct in themselves, yet they are hardly to be separated, and placed at the fame time, in the hands of diftinct persons for both of them requiring the force of the fociety for their exercife, it is almost impracticable to place the force of the common-wealth in diftinct, and not fubordinate hands; or that the executive and federative power fhould be placed in perfons, that might act separately, whereby the force of the public would be under different commands: which would be apt fome time or other to cause diforder and ruin.

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CHCHA P. XIII.

Of the Subordination of the Powers of the

§. 149.

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Common-wealth.

Hough in a conftituted common-wealth, standing upon its own bafis, and acting according to its own nature, that is, acting for the prefervation of the community, there can be but one fupreme power, which is the legislative, to which all the reft are and must be fubordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a fupreme power to remove or alter the legiflative, when they find the legislative act contrary to the truft repofed in them: for all power given with truft for the attaining an end, being limited by that end, whenever that end is manifeftly neglected, or oppofed, the truft must neceffarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they fhall think beft for their fafety and fecurity. And thus the community perpetually retains a fupreme power of faving themfelves from the attempts and defigns of any body, even of their legiflators, whenever they shall be so foolish, or fo wicked, as to lay and carry on defigns against the liberties and properties of the fubject for no man or fociety of men, having a power to deliver up their prefer

vation,

vation, or confequently the means of it, to the abfolute will and arbitrary dominion of another; when ever any one fhall go about to bring them into fuch a flavifh condition, they will always have a right to preferve, what they have not a power to part with; and to rid themselves of thofe, who invade this fundamental, facred, and unalterable law of felf-prefervation, for which they entered into fociety. And thus the community may be faid in this refpect to be always the fupreme power, but not as confidered under any form of government, because this power of the people can never take place till the government be diffolved.

§. 150. In all cafes, whilft the government fubfifts, the legislative is the fupreme power: for what can give laws to another, must needs be fuperior to him; and fince the legislative is no otherwife legislative of the fociety, 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 tranfgreffed, the legislative muft needs be the fupreme, and all other members powers, any or parts of the fociety, derived from and fubordinate to it.

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§. 151. In fome common-wealths, where the legislative is not always in being, and the executive is vefted in a fingle perfon, who has also a share in the legislative; there that fingle

perfon

perfon in a very tolerable fenfe may also be called fupreme: not that he has in himself all the fupreme power, which is that of lawmaking; but because he has in him the fupreme execution, from whom all inferior magiftrates derive all their feveral fubordinate powers, or at least the greatest part of them : having alfo no legislative fuperior to him, there being no law to be made without his confent, which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense fupreme. But yet it is to be observed, that tho' oaths of allegiance and fealty are taken to him, it is not to him as fupreme legiflator, but as fupreme 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 otherwife than as the public perfon vefted with the power of the law, and fo is to be confidered as the image, phantom, or reprefentative of the common-wealth, acted by the will of the fociety, 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 fingle private perfon without power, and without will, that has any right to obedience; the members

owing

owing no obedience but to the public will of the fociety.

§. 152. The executive power, placed any where but in a person that has also a fhare in the legislative, is vifibly fubordinate and accountable to it, and may be at pleasure changed and difplaced; fo that it is not the. fupreme executive power, that is exempt from fubordination, but the fupreme executive power vefted in one, who having a share in the legislative, has no diftinct fuperior legislative to be fubordinate and accountable to, farther than he himself fhall join and confent; fo that he is no more fubordinate than he himself fhall think fit, which one may certainly conclude will be but very little. Of other minifterial and fubordinate powers in a commonwealth, we need not fpeak, they being fo multiplied with infinite variety, in the dif ferent customs and conftitutions of distinct common-wealths, that it is impoffible to give a particular account of them all. Only thus much, which is neceffary to our prefent purpofe, we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by pofitive grant and commiffion delegated to them, and are all of them accountable to fome other power in the common-wealth.

§. 153. It is not neceffary, no, nor so much as convenient, that the legislative should be always in being; but abfolutely neceffary that

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