|
| 
Prev: Chapter XII. |
Next: Chapter XIV.
CHAPTER. XIII.
Of the Subordination of the Powers of the Common-wealth.
Sect. 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.
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 su bordinate 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 eno ugh 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.
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 common-wealth.
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
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 appoi nted 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 direction s 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.
Sect. 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.
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 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 goo d.
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.
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 neglecte d 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 ceas
ed, 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 housi ng 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
thoug ht incapable of a 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, obs erving 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 in
corporated 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 ha d 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 corpor ations, 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.
Top
Prev: Chapter XII. |
Next: Chapter XIV.
The text digitized by Dave Gowan.
John Locke's "Second Treatise of Government" was published in 1690. The complete unabridged text has been republished several times in edited
commentaries. This is based on the paperback book, "John Locke Second Treatise of Government", Edited, with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980. None of the McPherson edition is included in the Etext; only the original words contained in the 1690 Locke text is included. The 1690 edition text is free of copyright.
This text is in the PUBLIC DOMAIN, posted to Wiretap 1 Jul 94.
©Copyright, 2000, Mike Rosenberg
|
