C H A P. X I I I.

Of the Subordination of the Powers of the
Common-wealth.

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.
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.
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.
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.
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.
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.
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.
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 common-
wealth; 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.
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.
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.