Page images
[ocr errors][merged small][ocr errors][merged small][ocr errors]


T is fingular, that in the variety of anci

ent and modern authors, who speak familiarly of the constitution, I scarcely find one, that attempts to define it; and yet I think it the first duty of every writer to define, at least according to his own conceptions, that, which he undertakes to discuss*. By the constitution of England, I mean Definition of

the constitua thofe, immediate emanations from the first tion. principles of civil government, which the community have adopted as general rules for carrying into action that right or power of fovereignty, which unalienably resides with them, and which consequently form the im. mediate basis or ground, upon which all the faws of the community are founded. The transcendent force of the reasons for thefe

*“ By constitution we mean, whenever we speak with propriety and exactness, that assemblage of laws, institutions, and customs, derived from certain fixed princi. ples of reason, directed to certain fixed objects of public good, chat compose the general system, according to which the community hath agreed to be governed." Disertation upor Parties, Letter x. p. 108, printed 1739.



[ocr errors]
[ocr errors]

rules has acquired from the community an universal and unexceptionable admission of them, which has superseded the necessity of expressing them in a given form of words, like particular laws. They are not like those metaphysical or mathematical rules, which serve to direct and regulate the practice; but they are themselves ađive and practical rules, which can never cease to operate their effect upon the government, whilst the government subsists ; they have a political buoyance in the state, and like a cork in the waves, which may by commo. tion of the element, be lost for a time from the fight, but in the calm must neceffarily

resume its visible station on the surface. Instances of the *“ And, indeed, we may observe the remarkways returning able manner, in which it has been maintained

in the midst of such general commotions, as seemed unavoidably to prepare its destruc-tion. It rose ägain, we see, after the wars between Henry the Third and his barons'; after the usurpation of Henry the Fourth; and after the long and bloody contentions between the houses of York and Lancaster; nay, though totally destroyed in appearance,

to its level.

[ocr errors]

De Lolme on the Constitution of England, b. ii. c. xviii.


[ocr errors]


comes after the fall of Charles the first; and, though ze the greatest efforts had been made to establish e another form of government in its stead, yet, 2015 no sooner was Charles the Second called

Lover, than the constitution was re-established icale upon all its ancient foundations." thes The state of compulsive force, usurpation, att or tyranny, is a temporary subversion of the e government, as a tempestuous commotion

of the sea is a temporary derangement or mert violation of the natural laws of specific gra

vity, by which the cork would for ever re-
main afloat

the water.
* 66 As usur. Difference of

usurpation and iz pation,” says Mr. Locke, “ is the exercise of

tyranny. mezi power, which another hath a right to, so

tyranny is the exercise of power beyond kw right, which no body can have a right to."

And he says elsewhere, †" No polities can
be founded on any thing, but the consent of
the people.”

Before I enter immediately upon the par-
ticular nature of our constitution, it will not
be improper to submit to my readers what
this solid and perspicuous philosopher says of
the general forms of a common-wealth.
I“ The majority having, as has been shew-

[ocr errors]
[ocr errors]



* Locke of Civil Government, c. xviii.
+ Ibid. c. xvi. $ Ibid. c. xvi.


[ocr errors]

Various forts of ed, upon man's first uniting into society, the


power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers, of their own appointing, and then the form of the government is a perfect democracy; or else

, may put the power of making laws into the hands of a few select men, and their heirs or successors, and then it is an oligarchy; or else into the hands of one man, and then it is a monarchy; if to him and his heirs, it is an hereditary monarchy; if to him only for life, but upon his death the power only of nominating a successor to return to them, an elective monarchy; and fo accordingly of these the community may make compounded and mixed forms of government, as they had think good. And if the legislative power to be at first given by the majority to one of more persons only for their lives, or any limited time, and then the supreme power to revert to them again; when it is fo re: verted, the community may dispose of it again anew, into what hands they please, der and fo constitute a new form of government: For the form of government depending upon the placing the supreme power, which is the legislative, it being impoffible to conceive,



[ocr errors]
[ocr errors]


that an inferior power should prescribe to a 2 superior, or any, but the supreme, make laws, 1.5 according as the power of making laws is ? placed, such is the form of the commonwealth."

The fupremacy or sovereignty of all po- Legislative ;litical power, is the legislative power in a hr state; and the first and fundamental positive law 21 of all commonwealths, is the establishing of the li legislative power. This, in fact, is the act of

the community's vesting their own right or ste power in their delegates or trustees: and the no English community had certainly the fame & right, as every other community, upon unit

ing in society, to make this delegation, or do create this trust in whatever manner they ma chofe; in other words, they were perfe&tly 2 free to adopt a democratical, an aristocratical, t? or an hereditary, or an elective monarchical

form of government. This was, as I have þefore 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 sub. - mission of the people to them is jure divino.

*« This legislative is not only the supreme


• Locke, ubi fupra.


« PreviousContinue »