« AnteriorContinua »
rules has acquired from the community an universal and unexceptionable admission of them, which has superseded the necessity of expressing them in a given form of words, like particular laws.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 active and practical rules, which can never cease to operate their effect upon the government, whilst the government subsists; they have a political buoyancy in the state, and like a cork in the waves, which may by commotion of the element, be lost for a time from the fight, but in the calm must necessarily
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 to its level.
in the midst of fuch general commotions, as seemed unavoidably to prepare its destruction. It rose again, 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,
* De Lolme on the Constitution of England, b. ii. C. xviii.
after the fall of Charles the First; and, though the greatest efforts had been made to establish another form of government in its stead, yet, no sooner was Charles the Second called over, than the conftitution was re-established upon all its ancient foundations."
The state of compulsive force, usurpation, or tyranny, is a temporary subversion of the government, as a tempestuous commotion of the sea is a temporary derangement or violation of the natural laws of specific gravity, by which the cork would for ever re
* " As usur- Difference of pation,” says Mr. Locke, « is the exercise of ufurpation and
tyranny. power, which another hath a right to, so tyranny is the exercise 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 consent of
Before I enter immediately upon
particular nature of our constitution, it will not
to submit to my readers what this folid and perspicuous philosopher says of the general forms of a common-wealth.— $
" The majority having, as has been thew
* Locke of Civil Government, c. xviii.
I Ibid. c. xvi.
Various forts of ed, upon man's first uniting into society, the
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 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 ic 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 elektive monarchy: and so 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 or more perfons only for their lives, or any limited time, and then the supreme power to revert to them again ; when it is fo reverted, the community may dispose of it again anew, into what hands they please, and so conftitute a new form of government, For the form of government depending upon the placing the supreme power, which is the legijative, it being impoffibie to conceive,
that an inferior power should prescribe to a superior, or any, but the supreme, make laws, according as the power of making laws is placed, such is the form of the commonwealth.”
The supremacy, or sovereignty of all po- Legislative litical power, is the legislative power in a state; and the first and fundamental positive 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 same right, as every other community, upon uniting in society, to make this delegation, or create this trust in whatever manner they chose ; 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 ; fingula species regiminis funt de jure gentium ; but the choice being once made, or these delegates and trustees having been once nominated and appointed, the submisfion of the people to them is jure divino. * “ This legislative is not only the supreme
• Locke, ubi fupra.
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 else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legisative, which the public has chosen and appointed ; and so, in a constituted commonwealth, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate.”
This nation or community, have for many centuries chosen, and the majority, at this hour continue to chuse a form of government partaking of the democratical, aristocratical, and monarchical; for * « these three species of government have all of them their several perfections and imperfections: democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means, by which that end shall be obtained ; and monarchies to carry those means into execution ; and the ancients, as was observed, had, in general, no idea of any other permanent form of government, but these three ; for though Cicero ť
Blakist. Introd, to his Comm. p. 50, in the quarta edition.
+ In his Fragments de Rep. c. ii,