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Of the Subordination of the Powers
of the Common-wealth.
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Sec. 149. THOUGH
in a constituted common-wealth,
standing upon its own basis, and acting according to its own nature, that is, acting for
the preservation of the community, there can be but one supreme power, which is the
legislative, to which all the rest are and must be subordinate, yet the legislative being
only a fiduciary power to act for certain ends, there remains still in the people a
supreme power to remove or alter the legislative, when they find the legislative act
contrary to the trust reposed in them: for all power given with trust for the attaining an
end, being limited by that end, whenever that end is manifestly neglected, or opposed, the
trust must necessarily be forfeited, and the power devolve into the hands of those that
gave it, who may place it anew where they shall think best for their safety and security.
And thus the community perpetually retains a supreme power of saving themselves from the
attempts and designs of any body, even of their legislators, whenever they shall be so
foolish, or so wicked, as to lay and carry on designs against the liberties and properties
of the subject: for no man or society of men, having a power to deliver up their
preservation, or consequently the means of it, to the absolute will and arbitrary dominion
of another; when ever any one shall go about to bring them into such a slavish condition,
they will always have a right to preserve, what they have not a power to part with; and to
rid themselves of those, who invade this fundamental, sacred, and unalterable law of
self-preservation, for which they entered into society. And thus the community may be said
in this respect to be always the supreme power, but not as considered under any form of
government, because this power of the people can never take place till the government be
dissolved.
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Sec. 150. In all cases, whilst the government subsists, the
legislative is the supreme power: for what can give laws to another, must needs be
superior to him; and since the legislative is no otherwise legislative of the society, 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
transgressed, the legislative must needs be the supreme, and all other powers, in any
members or parts of the society, derived from and subordinate to it.
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Sec. 151. In some commonwealths, where the legislative is
not always in being, and the executive is vested in a single person, who has also a share
in the legislative; there that single person in a very tolerable sense may also be called
supreme: not that he has in himself all the supreme power, which is that of law-making;
but because he has in him the supreme execution, from whom all inferior magistrates derive
all their several subordinate powers, or at least the greatest part of them: having also
no legislative superior to him, there being no law to be made without his consent, which
cannot be expected should ever subject him to the other part of the legislative, he is
properly enough in this sense supreme. But yet it is to be observed, that tho' oaths of
allegiance and fealty are taken to him, it is not to him as supreme legislator, but as
supreme 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 otherwise than as the public person vested with the power of
the law, and so is to be considered as the image, phantom, or representative of the
common-wealth, acted by the will of the society, 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 single private
person without power, and without will, that has any right to obedience; the members owing
no obedience but to the public will of the society.
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Sec. 152. The executive power, placed any where but in a
person that has also a share in the legislative, is visibly subordinate and accountable to
it, and may be at pleasure changed and displaced; so that it is not the supreme executive
power, that is exempt from subordination, but the supreme executive power vested in one,
who having a share in the legislative, has no distinct superior legislative to be
subordinate and accountable to, farther than he himself shall join and consent; so that he
is no more subordinate than he himself shall think fit, which one may certainly conclude
will be but very little. Of other ministerial and subordinate powers in a commonwealth, we
need not speak, they being so multiplied with infinite variety, in the different customs
and constitutions of distinct commonwealths, that it is impossible to give a particular
account of them all. Only thus much, which is necessary to our present purpose, we may
take notice of concerning them, that they have no manner of authority, any of them, beyond
what is by positive grant and commission delegated to them, and are all of them
accountable to some other power in the common-wealth.
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Sec. 153. It is not necessary, no, nor so much as
convenient, that the legislative should be always in being; but absolutely necessary that
the executive power should, because there is not always need of new laws to be made, but
always need of execution of the laws that are made. When the legislative hath put the
execution of the laws, they make, into other hands, they have a power still to resume it
out of those hands, when they find cause, and to punish for any maladministration against
the laws. The same holds also in regard of the federative power, that and the executive
being both ministerial and subordinate to the legislative, which, as has been shewed, in a
constituted common-wealth is the supreme. The legislative also in this case being supposed
to consist of several persons, (for if it be a single person, it cannot but be always in
being, and so will, as supreme, naturally have the supreme executive power, together with
the legislative) may assemble, and exercise their legislature, at the times that either
their original constitution, or their own adjournment, appoints, or when they please; if
neither of these hath appointed any time, or there be no other way prescribed to convoke
them: for the supreme power being placed in them by the people, it is always in them, and
they may exercise it when they please, unless by their original constitution they are
limited to certain seasons, or by an act of their supreme power they have adjourned to a
certain time; and when that time comes, they have a right to assemble and act again.
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Sec. 154. If the legislative, or any part of it, be made up
of representatives chosen for that time by the people, which afterwards return into the
ordinary state of subjects, and have no share in the legislature but upon a new choice,
this power of chusing must also be exercised by the people, either at certain appointed
seasons, or else when they are summoned to it; and in this latter case ' the power of
convoking the legislative is ordinarily placed in the executive, and has one of these two
limitations in respect of time: that either the original constitution requires their
assembling and acting at certain intervals, and then the executive power does nothing but
ministerially issue directions for their electing and assembling, according to due forms;
or else it is left to his prudence to call them by new elections, when the occasions or
exigencies of the public require the amendment of old, or making of new laws, or the
redress or prevention of any inconveniencies, that lie on, or threaten the people.
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Sec. 155. It may be demanded here, What if the executive
power, being possessed of the force of the common-wealth, shall make use of that force to
hinder the meeting and acting of the legislative, when the original constitution, or the
public exigencies require it? I say, using force upon the people without authority, and
contrary to the trust put in him that does so, is a state of war with the people, who have
a right to reinstate their legislative in the exercise of their power: for having erected
a legislative, with an intent they should exercise the power of making laws, either at
certain set times, or when there is need of it, when they are hindered by any force from
what is so necessary to the society, and wherein the safety and preservation of the people
consists, the people have a right to remove it by force. In all states and conditions, the
true remedy of force without authority, is to oppose force to it. The use of force without
authority, always puts him that uses it into a state of war, as the aggressor, and renders
him liable to be treated accordingly.
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Sec. 156. The power of assembling and dismissing the
legislative, placed in the executive, gives not the executive a superiority over it, but
is a fiduciary trust placed in him, for the safety of the people, in a case where the
uncertainty and variableness of human affairs could not bear a steady fixed rule: for it
not being possible, that the first framers of the government should, by any foresight, be
so much masters of future events, as to be able to prefix so just periods of return and
duration to the assemblies of the legislative, in all times to come, that might exactly
answer all the exigencies of the commonwealth; the best remedy could be found for this
defect, was to trust this to the prudence of one who was always to be present, and whose
business it was to watch over the public good. Constant frequent meetings of the
legislative, and long continuations of their assemblies, without necessary occasion, could
not but be burdensome to the people, and must necessarily in time produce more dangerous
inconveniencies, and yet the quick turn of affairs might be sometimes such as to need
their present help: any delay of their convening might endanger the public; and sometimes
too their business might be so great, that the limited time of their sitting might be too
short for their work, and rob the public of that benefit which could be had only from
their mature deliberation. What then could be done in this case to prevent the community
from being exposed some time or other to eminent hazard, on one side or the other, by
fixed intervals and periods, set to the meeting and acting of the legislative, but to
intrust it to the prudence of some, who being present, and acquainted with the state of
public affairs, might make use of this prerogative for the public good? and where else
could this be so well placed as in his hands, who was intrusted with the execution of the
laws for the same end? Thus supposing the regulation of times for the assembling and
sitting of the legislative, not settled by the original constitution, it naturally fell
into the hands of the executive, not as an arbitrary power depending on his good pleasure,
but with this trust always to have it exercised only for the public weal, as the
occurrences of times and change of affairs might require. Whether settled periods of their
convening, or a liberty left to the prince for convoking the legislative, or perhaps a
mixture of both, hath the least inconvenience attending it, it is not my business here to
inquire, but only to shew, that though the executive power may have the prerogative of
convoking and dissolving such conventions of the legislative, yet it is not thereby
superior to it.
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Sec. 157. Things of this world are in so constant a flux,
that nothing remains long in the same state. Thus people, riches, trade, power, change
their stations, flourishing mighty cities come to ruin, and prove in times neglected
desolate corners, whilst other unfrequented places grow into populous countries, filled
with wealth and inhabitants. But things not always changing equally, and private interest
often keeping up customs and privileges, when the reasons of them are ceased, it often
comes to pass, that in governments, where part of the legislative consists of
representatives chosen by the people, that in tract of time this representation becomes
very unequal and disproportionate to the reasons it was at first established upon. To what
gross absurdities the following of custom, when reason has left it, may lead, we may be
satisfied, when we see the bare name of a town, of which there remains not so much as the
ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is
to be found, sends as many representatives to the grand assembly of law-makers, as a whole
county numerous in people, and powerful in riches. This strangers stand amazed at, and
every one must confess needs a remedy; tho' most think it hard to find one, because the
constitution of the legislative being the original and supreme act of the society,
antecedent to all positive laws in it, and depending wholly on the people, no inferior
power can alter it. And therefore the people, when the legislative is once constituted,
having, in such a government as we have been speaking of, no power to act as long as the
government stands; this inconvenience is thought incapable of a remedy.
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Sec. 158. Salus populi suprema lex, is certainly so just and
fundamental a rule, that he, who sincerely follows it, cannot dangerously err. If
therefore the executive, who has the power of convoking the legislative, observing rather
the true proportion, than fashion of representation, regulates, not by old custom, but
true reason, the number of members, in all places that have a right to be distinctly
represented, which no part of the people however incorporated can pretend to, but in
proportion to the assistance which it affords to the public, it cannot be judged to have
set up a new legislative, but to have restored the old and true one, and to have rectified
the disorders which succession of time had insensibly, as well as inevitably introduced:
For it being the interest as well as intention of the people, to have a fair and equal
representative; whoever brings it nearest to that, is an undoubted friend to, and
establisher of the government, and cannot miss the consent and approbation of the
community; prerogative being nothing but a power, in the hands of the prince, to provide
for the public good, in such cases, which depending upon unforeseen and uncertain
occurrences, certain and unalterable laws could not safely direct; whatsoever shall be
done manifestly for the good of the people, and the establishing the government upon its
true foundations, is, and always will be, just prerogative, The power of erecting new
corporations, and therewith new representatives, carries with it a supposition, that in
time the measures of representation might vary, and those places have a just right to be
represented which before had none; and by the same reason, those cease to have a right,
and be too inconsiderable for such a privilege, which before had it. 'Tis not a change
from the present state, which perhaps corruption or decay has introduced, that makes an
inroad upon the government, but the tendency of it to injure or oppress the people, and to
set up one part or party, with a distinction from, and an unequal subjection of the rest.
Whatsoever cannot but be acknowledged to be of advantage to the society, and people in
general, upon just and lasting measures, will always, when done, justify itself; and
whenever the people shall chuse their representatives upon just and undeniably equal
measures, suitable to the original frame of the government, it cannot be doubted to be the
will and act of the society, whoever permitted or caused them so to do.
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