CHAP. VII. OF THE LEGISLATIVE POWER. T is fingular, that in the variety of ancient and modern authors, who speak familiarly of the conftitution, 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 difcufs*. the constitu By the conftitution of England, I mean Definition of 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 refides with them, and which confequently form the im mediate bafis or ground, upon which all the laws of the community are founded. The tranfcendent force of the reafons for thefe * "By conftitution we mean, whenever we speak with propriety and exactnefs, that affemblage of laws, inftitutions, and cuftoms, derived from certain fixed princi. ples of reason, directed to certain fixed objects of public good, that compofe the general fyftem, according to which the community hath agreed to be governed." Differtation upon Parties, Letter x. p. 108, printed 1739 Inftances of the conftitution al ways returning to its level. rules has acquired from the community an univerfal and unexceptionable admission of them, which has fuperfeded the neceffity of exprefling them in a given form of words, like particular laws. They are not like those metaphysical or mathematical rules, which ferve to direct and regulate the prac tice; but they are themselves active and practical rules, which can never cease to operate their effect upon the government, whilft the government fubfifts; they have a political buoyance in the ftate, and like a cork in the waves, which may by commo tion of the element, be loft for a time from the fight, but in the calm muft neceffarily refume its vifible ftation on the furface. "And, indeed, we may observe the remarkable manner, in which it has been maintained in the midft of fuch general commotions, as feemed unavoidably to prepare its deftruc tion. It rofe again, we fee, after the wars between Henry the Third and his barons; after the ufurpation of Henry the Fourth; and after the long and bloody contentions between the houses of York and Lancaster; nay, though totally deftroyed in appearance, • De Lolme on the Constitution of England, b. ii. c. xviii. after after the fall of Charles the Firft; and, though the greatest efforts had been made to establish another form of government in its ftead, yet, no fooner was Charles the Second called over, than the conftitution was re-established upon all its ancient foundations." The state of compulfive force, ufurpation, or tyranny, is a temporary fubverfion of the government, as a tempeftuous commotion of the fea is a temporary derangement or violation of the natural laws of specific gravity, by which the cork would for ever remain afloat upon the water. * As ufur. pation," fays Mr. Locke, " is the exercise of power, which another hath a right to, fo tyranny is the exercife of power beyond right, which no body can have a right to." And he says elsewhere, †" No polities can be founded on any thing, but the confent of the people." Before I enter immediately upon the particular nature of our conftitution, it will not be improper to fubmit to my readers what this folid and perfpicuous philofopher says of the general forms of a common-wealth."The majority having, as has been fhew * Locke of Civil Government, c. xviii. Ibid. c. xvi. L 2 ed, Difference of ufurpation and tyranny. Various forts of ed, upon man's first uniting into fociety, the government. whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing thofe laws by officers of their , own appointing, and then the form of the government is a perfect democracy; or elfe, may put the power of making laws into the hands of a few felect men, and their heirs or fucceffors, and then it is an oligarchy; or elfe 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 fucceffor to return to them, an elective monarchy; and fo accordingly of these the community may make compounded and mixed forms of government, as they think good. And if the legislative power be at first given by the majority to one of more perfons only for their lives, or any limited time, and then the fupreme 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, and fo constitute a new form of government. For the form of government depending upon the placing the fupreme power, which is the legislative, it being impoffible to conceive, that that an inferior power fhould prefcribe 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 thefe delegates and trustees having been once nominated and appointed, the sub. miffion of the people to them is jure divino. *This legislative is not only the supreme • Locke, ubi fupra. power |