usual force employed by him to be too weak to answer his purpose, calls in the soldiery to his assistance; than that he calls in the military force. The persons which are usually employed by him are either too few or too unskilful to withstand the resistance which he is likely to meet with. Therefore, as there are many members of the society who are the instruments of the external executive power, and who are trained up to oppose such violent resistances as frequently come from without; he has recourse to them, and uses them as his instruments, subject, when they are so called in by him, to his control; and consequently subject, as he is himself, to the control of the law.

CHAPTER IV.

OF THE DIFFERENT FORMS OF CIVIL GOVERNMENT.

I. Sovereign and supreme power, what.-II. Legislative and executive power compared.-III. Civil constitution, what.-IV. Origin of civil constitutions in respect of the legislative.-V. How a civil constitution becomes fixed, as to the legislative.-VI. Executive body, how formed.-VII. Despotic constitution, how produced.-VIII. Executive body, how fixed.-IX. National constitution a question of fact.— X. Monarchical constitutions not more natural than others.-XI. Monarchical constitutions not impossible. XII. Constitutions not necessarily democratical.-XIII. Titles or appearances do not determine the nature of a constitution.-XIV. Tenure of civil power to be distinguished from the power itself.-XV. Promise or oath of a king may limit his power.-XVI. Mixed constitutions.—XVII. Civil constitutions may be altered.

preme what.

Sovereign and su- I. WHEN We speak of sovereign power, or of supreme power, power, we are led into some mistakes, by using these words indiscriminately. When we call any power supreme, the expression seems to be relative to some other subordinate powers: to call any power the highest of all, is not very intelligible, if there are no other powers below it. Sovereign power is likewise a relative term; but then it has not a necessary relation to subordinate powers. To call any power by the name of sovereign power, does not necessarily imply that there are any other powers in subordination to it. Whatever power is independent, so as not to be subject to any other power, though it has in the meantime no other power subject to itself, may with propriety enough be called by this name. In short, that power may well be called sovereign, to which none is superior: whereas, none can be called supreme, unless there are others inferior to it.

*

Grotius, indeed, has not observed this distinction: he defines supreme power, as I should define sovereign power, to be such an independent power of governing a civil society, that no acts which are done

Grot. Lib. I. Cap. III. § VII.

by it, can be made void by any other human power. In this sense, every state, in reference to all other states, has supreme, or, as we might better call it, sovereign power within itself: it governs itself independently, and no other state has authority to make its acts of government void. A society of men, by whatever ties and for whatever purposes they may be united to one another, is not complete in itself, if it has not within itself an independent power of government; but is, either in its legislative or in its executive, subject to be controlled by any power from without. Such a society, therefore, though formed for civil purposes, is no civil society; it can at best be only a part of some other state, and is usually called a province to that state in particular, from which it receives its laws, or by which its public force is put in motion and made to act.

Every individual, in the liberty of nature, is his own master, and has an independent or sovereign power over himself. The consequence of which is, that when a number of such individuals are united together, so as to form a society, this society is naturally its own master, and has an independent or sovereign power over itself. Since no person, and no collection of persons, out of the society, has naturally any authority over any individual within it; the consequence is, that no other civil society can have any authority over a body politic, made up of such individuals.

If, indeed, any one body politic has consented to submit itself to the authority of any other body of the same sort, it ceases to be its own master; it has no longer an independent or sovereign power of its own. *But then it ceases at the same time to be a state, and becomes a province. No assembly of men is called a state, unless it is complete in itself: and no assembly of men, united for the purposes of advancing a common utility, and of securing their rights, can be complete, if it has not within itself whatever is necessary to answer those purposes; if, instead of having a legislative and an executive power of its own, it is obliged to have recourse to some other society or assembly of men, to ascertain the rights and to prescribe the duties of its members, or to maintain those rights when they are ascertained, and to enforce the observance of those duties, when they are prescribed.

and

II. The not having attended to the distinction already Legislative taken notice of, between the notions of sovereign and executive power supreme power, and the promiscuous use of these two compared. words, may possibly have been one occasion of a seeming difference in opinion between those, who, if they were to explain their meaning, might possibly be found to agree. The executive power in any state may undoubtedly be called sovereign power: because, in reference to all other states, it is an independent power. It is not naturally subject to the restraint, or to the direction of any power out of the society. Where it is subject to any such external restraint, there is no state, but a province only, a part or member of some other society. Now, as the terms sovereign and supreme power are used indiscriminately, we are apt to conclude, that the executive, because it may in this sense be called sovereign power, is likewise to be considered as supreme power. But then the inquiries upon this head are usually carried something

* Grot. Lib. I. Cap. III. § VII.

farther. The legislative and the executive power in the same society, are sometimes compared together: and then the question is, which of these two is to be looked upon as the supreme power. It is not uncommon to imagine here, that executive power, because it is called sovereign, and is therefore looked upon as supreme in one reference or comparison, may likewise be called sovereign, and be looked upon as supreme in this other reference; so that if the legislative power is not subordinate to it, they must at least be independent one of the other. The distinction of the two names sovereign and supreme, if it was attended to, would correct this false conclusion. The executive power of any one civil society in reference to the civil powers, either legislative or executive of any other civil societies, may indeed be called sovereign power: because it is independent of them, and does not act under their direction. But then in this reference it is not very proper to call it supreme power; because, though such foreign powers cannot of right direct or control it, yet they are not subordinate to it. And if, by proving the executive power of any particular society, to be sovereign power in this reference, it does not follow that it is to be called supreme power in the same reference; much less will it follow, that we are to look upon it as supreme power in reference to the legislative of the same society.

Indeed, there is in almost every state, what may be called supreme executive power, in reference to some other powers within the state itself. When an executive body is fixed by the constitution of government in any civil society; whether this body consists of one person or more, there are usually many other subordinate persons, or bodies, who have such a derivative and inferior jurisdiction, as commits the public strength of the society to their management in many instances. These inferior magistrates, therefore, have an executive power: but as it is derived from the person or persons with whom the executive is originally entrusted; this power is inferior or subordinate to his: and in this reference his executive power may be called supreme. But this again is no evidence that the executive power, either in itself or as it is entrusted in his hands, is superior to the legislative, or even independent of it. There can certainly be no ground for concluding that the executive power in his hands is supreme, when compared with the legislative; only because it is supreme, when compared with the executive power in other hands.

If we consider the nature of these two powers, there will be no great difficulty in judging which of them is supreme, when they are compared with one another. The legislative is the joint understanding of the society, directing what is proper to be done, and is therefore naturally superior to the executive, which is the joint strength of the society exerting itself in taking care that what is so directed shall be done.

As legislative power is thus found to be superior to executive, when they are considered in the abstract, we are apt to conclude, too hastily, that in every civil society the legislative body is in all instances superior to the executive body. Whereas, in fact, the constitution of government may, in some instances, have lodged a discretionary power in the executive body: so that, though in general the public understand

See Chap. III. § X.

ing speaks by the legislative body, yet, in these instances, the understanding of the executive body may be designed to stand in the place of the public understanding, and to direct what is to be done as well as to see to the doing of it. For the existence of a legislative body is not wholly inconsistent with the notion of prerogative.

III. By the civil constitution of government in any Civil constitution, nation, is meant the established form of exercising the what.

supreme or governing power within that nation, which we have just now proved to be the legislative power of it. The simple constitutions of government are commonly reduced to these three; monarchy, aristocracy, and democracy: by which we are to understand, that there are three different sorts of legislative bodies; any of which may be established in any nation; and each of which may be called simple, because each of them is uniform or alike in all its parts. The constitution is democratical, when the legislative power is exercised either by the collective body of the people, or by representatives which they choose from time to time. It is aristocratical, when this power is exercised by the nobles; that is, by a small and select body of men, who, after their original designation to this office, are elective no longer, but transmit their power to their heirs, or to other established successors. It is monarchical, when this power is exercised by a king; that is, by a single man; whether upon his demise it is transmitted to his heirs, or to other established successors, or to such successors as shall, upon that event, be chosen. We cannot, indeed, properly say, that in this last form of government all the parts of the legislative body are alike; because the whole body consists of only one person: the form, however, is a simple one; because there is no mixture or diversity of parts in it.

The constitution of government is called a mixed one, when two or more of these simple forms are compounded, or joined with one another. Thus the legislative body may consist either of the whole body, or of a representative body of the nobles and of the people; or of the king and the people; or of the king and the nobles alone; or of the king and the nobles, with the representatives of the people.

The mixture, in this last form, will be a little varied, if the king is entrusted with the executive power in such a manner as to have any prerogative joined with it: or if the representatives of the people claim a right of establishing any sort of laws, whether relating to the public revenue or to any other matter, and the consent of the other two parts of the legislative body to such laws is considered as a thing of course, which they are not to refuse. In either of these cases the form is still a mixed or compound one, though the composition is not quite the same. In the former case it approaches towards monarchical, and in the latter towards democratical.

IV. When a number of persons, who are equal to Origin of civil conone another; that is, who are free, as all men naturally stitutions, in reare free, from any jurisdiction or authority over one spect of the legisanother, have united themselves into a civil society; the natural result of such an union is a legislative power. But then there is originally no legislative body distinct from the collective body of the

⚫ See Book I. Chap. X. § III.

lative.

society. All and each are obliged to conform themselves to whatever the whole or the major part shall agree upon: but as no one person, nor any select number of persons, can have any right to prescribe to the rest; so neither is this collective body of men naturally obliged to elect or settle a number of representatives, who shall have authority to act for them, or to determine what is to be done, and what to be avoided. Each member of the society has originally a right to act for himself, as a member; that is, to deliberate with the rest, and to give his suffrage upon such points as come before them. It is necessary, therefore, to look farther than the compact, by which men unite themselves into a civil society, in order to find out the origin of any other civil constitution of government, besides such an one as is popular or democratical in the fullest extent of that word.

There is, indeed, an original † legislative power in every civil society; but some farther act is necessary, besides the mere union into such a society, before this power can be naturally vested in any one part of the society exclusive of the rest; before a king or the nobles can have a right of making laws, which shall bind the whole; or before the people shall be obliged to act by representatives, or to be concluded by the sense of any part of the society, instead of acting in their collective capacity, so as to be concluded by nothing less than the general sense of the collective body. All men, before they are considered as members of a civil society, are equal to one another, and are likewise independent of one another; each has naturally a right to think and to act for himself. This independency is, in some measure, limited by their entering into civil society. If there is no express agreement, yet the very act of entering into such society is a tacit agreement, which makes them so far dependent upon the general sense and will of the whole body politic, that they are from thence obliged to conform themselves to that general sense and will. But if they are considered merely as members of a civil society; if nothing more is supposed to have passed, besides that agreement, either express or tacit, by which they united themselves into such a society, they would still have a civil equality; this union, though it has produced a legislative power, has not lodged it in any particular hands; it leaves each member as free to act for himself in a civil capacity, as he before was in a natural capacity. From hence then it follows, that the obligation of being subject to a legislative power in any one man, or in any body of men, though this body is within the society, if it is different from the whole collective body, is a farther abridgement of natural liberty, than what arises merely from the agreement, by which mankind unite themselves into civil societies. But every abridgement of liberty, which is made without our consent, either express or implied, is contrary to the law of nature. No civil constitution of government, therefore, which is not purely democratical, can be established consistently with the law of nature, without a farther agreement between those who are members of the same civil society: we may, indeed, say, that without such an agreement, no constitution of government that we know of, or read of, could have been formed: because there does not appear ever to have been any constitution so entirely democratical, as to allow every mem† See Book II. Chap. III. § I.

* See Book II. Chap. I. § II.