Chapter 13
Of the Subordination of the Powers of the
Commonwealth
§. 149. THOUGH in a constituted commonwealth 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 anybody, 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, whenever 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.
§. 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 every member of the society
prescribing rules to their actions, 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.
§. 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 though 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 commonwealth, 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; the members owing no obedience but to
the public will of the society.
§. 152. The executive power placed anywhere 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
commonwealth.
§. 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 mal-administration 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 shown, in a constituted
commonwealth 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
legislative 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.
§. 154. If the legislative, or any part of it, be of representatives, chosen
for that time by the people, which afterwards return into the ordinary state of
subjects, and have no share in the legislative but upon a new choice, this
power of choosing 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.
§. 155. It may be demanded here, what if the executive power, being possessed
of the force of the commonwealth, 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.
§. 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 imminent hazard on one side or the other, by
fixed intervals and periods set to the meeting and acting of the legislative,
but to entrust 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 entrusted 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 show 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.
§. 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 time 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, send 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; though
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.
§. 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 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 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. It is 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 choose
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 proposed to them so to do.