Sect. 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 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.
149. In a constituted commonwealth that rests on its own foundation and acts according to its nature, there is only one supreme power. That is the legislative. All other powers are and must be subordinate to it. But the legislative is only a fiduciary power. It is entrusted to act for certain ends. Because of this, the people still retain a supreme power to remove or alter the legislature. They may do this when the legislature clearly acts against the trust placed in it. All power given in trust to achieve an end is limited by that end. When that end is plainly neglected or opposed, the trust is forfeited. The power then returns to those who gave it. They may place it again where they think best for their safety and security. Thus the community always keeps a supreme power to save itself from the attempts and designs of any body, even of their legislators. This applies when those legislators are so foolish or wicked as to plan and carry out attacks on the liberties and property of the people. No person or society can give up their preservation, or the means of it, to the absolute and arbitrary will of another. If anyone tries to reduce them to such a slavish condition, they always have the right to preserve what they cannot legitimately give away. They also have the right to rid themselves of those who invade this fundamental, sacred, and unalterable law of self-preservation, for which they entered into society. In this respect the community may be said always to be the supreme power. This is not meant while any form of government continues to exist. The people's power can only take effect when the government is dissolved.
Sect. 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.
150. While the government exists, the legislature is the supreme power. Someone who can make laws for another must be superior to them. The legislature only acts as such because it has the right to make laws. These laws apply to every part and every member of the society. It prescribes rules for people's actions and gives power to enforce them when those rules are broken. Therefore the legislature must be supreme. All other powers in any part or member of the society come from it and are subordinate to it.
Sect. 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 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, that has any right to obedience; the members owing no obedience but to the public will of the society.
151. In some commonwealths the legislature does not sit continuously, and the executive power is held by a single person who also shares in making laws. In such cases that person may reasonably be called supreme. This does not mean he holds all the supreme power. The supreme power is the power to make laws. He is called supreme because he holds the highest executive power. All lower magistrates receive most or all of their subordinate powers from him. He also has no legislative superior, since no law is made without his consent. It cannot be expected he would ever place himself under the other branch of the legislature. So in this sense he is properly supreme. However, note that when people swear oaths of allegiance or fealty to him, they do not swear to him as the supreme lawmaker. They swear to him as the supreme executor of laws made by him together with others. Allegiance is simply obedience according to law. When he breaks the law, he loses the right to obedience. He can only claim obedience as the public person vested with the power of the law. He must be seen as the image, phantom, or representative of the commonwealth, acting by the society’s will as declared in its laws. Thus he has no will or power except what the law gives him. When he abandons this representation and acts by his private will, he degrades himself. He becomes a private person without any right to obedience. The members owe obedience only to the public will of the society.
Sect. 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 commonwealth.
152. The executive power, when placed anywhere except in a person who also shares the legislative, is clearly subordinate and accountable to that legislature. It can be changed or removed at will. The supreme executive power is not exempt from subordination. Rather, when the supreme executive power is vested in one person who also shares in the legislative, there is no separate legislative superior to whom he is subordinate or accountable, beyond what he himself consents to. He is therefore subordinate only as much as he chooses to be, and one may safely conclude that will be very little. Of other ministerial and subordinate powers in a commonwealth we need not speak. They are multiplied and vary infinitely under different customs and constitutions, so it is impossible to describe them all. For our present purpose we only need to note this. None of these powers has any authority beyond what is delegated to them by positive grant and commission, and they are all accountable to some other power in the commonwealth.
Sect. 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 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 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.
153. It is not necessary, no, not even convenient, that the legislative should always be in being. But it is absolutely necessary that the executive power should be. For there is not always need for new laws to be made, but there is always need for the laws that are made to be executed. When the legislative has put the execution of the laws it makes into other hands, it still has a power to take it back out of those hands when it finds cause. It may also punish any maladministration against the laws. The same holds for the federative power. That and the executive are both ministerial and subordinate to the legislative, which, as has been shown, is supreme in a constituted commonwealth. In this case the legislative is also supposed to consist of several persons. (If it is a single person, it cannot help being always in being. So, as supreme, it will naturally have the supreme executive power together with the legislative.) These several persons may assemble and exercise their legislative power at the times appointed either by their original constitution or by their own adjournment. Or, if neither of these has appointed any time, or no other way to convene them is prescribed, they may assemble when they please. For the supreme power was placed in them by the people, and so it is always in them. They may exercise it when they please, unless their original constitution limits them to certain seasons, or they have adjourned to a certain time by an act of their supreme power. And when that time comes, they have a right to assemble and act again.
Sect. 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.
154. If the legislature, or any part of it, consists of representatives chosen by the people for a fixed time, they later return to being ordinary subjects. They have no share in the legislature except by a new choice. That power of choosing must also be exercised by the people. They must choose either at certain appointed times, or when summoned. In the latter case, the power to convene the legislature is usually placed in the executive. That power has one of two time limits. Either the original constitution requires the legislature to assemble and act at certain intervals. Then the executive only issues directions for their election and assembly according to the proper forms. Or it is left to the executive's prudence to call new elections when public occasions or emergencies require it. Such occasions include amending old laws, making new ones, or remedying and preventing inconveniences that burden or threaten the people.
Sect. 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.
155. One may ask what happens if the executive uses the commonwealth's force to stop the legislature from meeting. This applies when the original constitution or public necessity requires the legislature to act. I say that using force against the people without authority is a state of war with them. It also breaches the trust placed in the person who uses it. The people then have a right to restore their legislature to the exercise of its power. They created the legislature to make laws at set times or whenever needed. If any force prevents the legislature from doing what society requires, the people may remove that force by force. The legislature's work is necessary for the safety and preservation of the people. In all situations, the proper remedy for force without authority is to oppose it with force. Using force without authority always makes the user the aggressor in a state of war. It makes the user liable to be treated accordingly.
Sect. 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.
156. Giving the executive the power to call and dismiss the legislature does not make the executive superior to it. It is a fiduciary trust given for the safety of the people. Human affairs are uncertain and changeable, and cannot be governed by a single fixed rule. The first framers could not foresee every future event. They could not set precise times and lengths for legislative assemblies that would meet every future need of the commonwealth. The best remedy was to entrust this discretion to someone who would always be present and whose duty was to watch over the public good. Constant, frequent meetings of the legislature, and long sittings without necessity, would burden the people and create more dangerous problems over time. Yet sudden changes in affairs may require their immediate help. Any delay in calling them could endanger the public. Sometimes their business may be so great that the fixed time of their sitting would be too short, and would deprive the public of benefits that only mature deliberation can provide. What could be done to prevent the community from being exposed at some time to great danger because of fixed intervals for legislative action? The answer was to trust the matter to the prudence of someone present and acquainted with public affairs, who could use this prerogative for the common good. Where else could this power be placed so well as in the hands of the person entrusted with enforcing the laws for the same purpose? If the original constitution did not set rules for when the legislature should meet, this duty naturally fell to the executive. It did not become an arbitrary power depending on his whim. It was a trust to be exercised only for the public weal, as changing times and events might require. Whether fixed meeting times, leaving the prince free to convoke the legislature, or a mixture of both causes the fewest inconveniences is not my concern here. I only mean to show that although the executive may have the prerogative to convoke and dissolve such legislative assemblies, this does not make him superior to the legislature.
Sect. 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.
157. Things of this world are in such constant flux that nothing remains long in the same state. So people, riches, trade, and power change their places. Mighty, flourishing cities fall into ruin, and in time become neglected, desolate corners. Meanwhile other places, once seldom visited, grow into populous countries filled with wealth and inhabitants. But things do not always change equally. And private interest often keeps up customs and privileges after the reasons for them have ceased. So it often happens in governments where part of the legislative consists of representatives chosen by the people that, over time, this representation becomes very unequal. It falls out of proportion to the reasons it was first established on. We can see what gross absurdities following custom may lead to, once reason has left it. Take the bare name of a town of which not even the ruins remain. Scarcely so much housing as a sheep shed, or more inhabitants than a shepherd, is to be found there. Yet it sends as many representatives to the grand assembly of lawmakers as a whole county with many people and great riches. Strangers stand amazed at this, and everyone must admit it needs a remedy. Yet most think it hard to find one. For the constitution of the legislative is the original and supreme act of the society. It comes before all positive laws in it and depends wholly on the people. So no inferior power can alter it. And in such a government as we have been speaking of, once the legislative is constituted, the people have no power to act as long as the government stands. Therefore this inconvenience is thought to be beyond remedy.
Sect. 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.
158. Salus populi suprema lex (the welfare of the people is the supreme law) is certainly so just and fundamental a rule that he who sincerely follows it cannot dangerously err. Suppose, then, that the executive, who has the power of convoking the legislative, attends to the true proportion of representation rather than its fashion. Suppose he regulates the number of members by true reason, not old custom, in all places that have a right to be distinctly represented. No part of the people, however incorporated, can claim that right except in proportion to the assistance it gives the public. Such an executive cannot be judged to have set up a new legislative. He must be judged to have restored the old and true one, and to have corrected the disorders that the passing of time had introduced, unnoticed as well as unavoidably. For it is the interest, as well as the intention, of the people to have a fair and equal representative body. Whoever brings it nearest to that is undoubtedly a friend to the government and an establisher of it. He cannot fail to have the consent and approval of the community. Prerogative is nothing but a power in the hands of the prince to provide for the public good in cases that depend on unforeseen and uncertain events, which certain and unalterable laws could not safely direct. So whatever is done manifestly for the good of the people, and for establishing the government on its true foundations, is, and always will be, just prerogative. The power of erecting new corporations, and with them new representatives, carries with it an assumption. It assumes that in time the measures of representation might vary. Places that had no representation before might come to have a just right to it. And by the same reason, places that had it before might cease to have a right to it, and become too insignificant for such a privilege. A change from the present state, which perhaps corruption or decay has brought about, is not what makes an inroad on the government. What makes an inroad is a change that tends to injure or oppress the people, and to set up one part or party, distinguished from the rest, with the rest unequally subjected. Whatever cannot fail to be acknowledged as an advantage to the society and the people in general, on just and lasting measures, will always justify itself once it is done. And whenever the people choose their representatives on just and undeniably equal measures, suited to the original frame of the government, it cannot be doubted that this is the will and act of the society, whoever permitted or caused them to do so.