*The first caution to be observed is, that, in judging what is the civil constitution in any country, we ought to be careful that titles or appearances do not mislead us.

The titles of emperor, or king, or prince, or duke, for instance, are commonly supposed to imply different degrees of civil power in the person to whom such titles are respectively given. When we find that the chief magistrate in any nation is called an emperor or a king, we are apt to imagine that sovereign power goes along with these titles; and, consequently, that the constitution must necessarily be monarchical. On the other hand, if he is called a prince or a duke, these are looked upon as inferior titles: and if we were to attend to the title, rather than to the truth of the fact, the inference might perhaps be, that the chief magistrate, who has only one of these inferior titles, has not sovereign power, but that the constitution is either mixed or popular. But these titles, however they might be intended at first, are now used indiscriminately. The lowest of them is frequently given to persons who have sovereign power; and the highest to persons whose civil power, within their own territories, is not sovereign.

In like manner, where we find a senate or parliament, by which the people are represented, we are apt to conclude from such an appearance, that the people have at least a constitutional share in the sovereign power, if not the whole of it. Such a conclusion, however, is not always well grounded. Before we can determine whether it is or is not well grounded, we must attend, not only to the existence of such a body, but to the business in which it is employed. It may be designed only to give the king an opportunity of knowing the state of the nation better than he could have known it otherwise; to acquaint him with such public grievances as he could not by any other means have been so well informed about; or, perhaps, by his own appointment, to register his acts in order to make them known to the people in the most ready and most authentic manner. If this is all that they have to do, they do not seem to have any civil power, except what he delegates to them. And the existence of such a body of men would be a very weak argument to prove that the constitution is not absolutely monarchical. But if, on the other hand, their business, when they meet, is to raise money for the support of the government; to settle the uses to which such money shall be applied; to exercise a part of the legisla

power, by deliberating concerning the expediency of making any new laws, or of repealing any old ones, and to act with such authority in this point, that nothing can be done effectually without their concurrence; these are instances of sovereign power, and will at least prove the constitution to be a mixed one.

XIV. Secondly, the claim which the king has to the Tenure of civil civil power; that is, the tenure by which he holds this power to be dispower, or so much of it as the constitution gives him, tinguished from ought to be carefully distinguished from the power itself, the power itself. Other things are held or possessed by three sorts of tenure; that is, there are three sorts of claim which the owner may have to them. A man may have full property in corporeal things; or he may have a claim of usufruct in them; or they may be his by a temporary tenure. Of

*Grot. Lib. I. Cap. III. § X.

Grot. Lib. I. Cap. III. § XI.

these three sorts of tenure, that of full property is the highest in degree, and may, therefore, be called the supreme tenure. The other two, an usufructuary, or a temporary tenure, are of an inferior sort. In corporeal things, the claim of the owner, or the tenure, by which he holds them, is plainly different from the things themselves: it is impossible to confound the field which a man claims as his own, with the right by which he claims, or the tenure by which he holds it. The same field may at different times belong to one man in full property; to another, by usufruct; and to a third, for a term of years. But it is plain, that the field and the tenure, by which it is held, are distinct from one another: since the field is still the same, whilst the claim to it has undergone these several changes. The same observation is applicable, likewise, to incorporeal things, in which number civil power is to be reckoned. And the caution which our author here recommends, is, that we are not to judge of the power of a king from the tenure by which he holds it, or by the nature of his claim to it. He may have the supreme claim to it, or may hold it in full property, and yet the power so holden may be less than sovereign: or he may hold it by usufruct, or for a time only; and yet, though the claim is of the inferior kind, the power may be supreme.

It is questioned, indeed, whether any one can have full property in civil power; whether a kingdom can be patrimonial; or whether the right to govern a civil society can possibly be alienable, at the discretion of the possessor, as his right to any other estate, or to any other part of his patrimony is. Certainly, when the people have vested civil power in any particular man, or body of men, this grant of theirs does not imply that such power is alienable; that the man, or the body of men in whom it is so vested, have a right either to exercise it themselves, or to alienate it to any one else, at their own discretion. Since a power to govern does not imply a power to choose and appoint a governor; a king may be invested even with the sovereign power of governing, without having full property in that power, or without having a right to alienate it: because transferring this power from himself to any one else, is, in effect, choosing and appointing a governor.

But this is not the point in question. Grotius no where supposes, that whoever is possessed of civil power, must necessarily have a right to alienate that power. On the contrary, the distinction which he makes, between the power itself, and the claim to such power, suffici ently shows it to have been his opinion, that a king may be possessed even of absolute power, without having full property in it. It is granted, therefore, that there is nothing in the nature of civil, or even of sovereign power, which will necessarily give any person, in whom such power is vested, a right to alienate it. If nothing more is done, than merely to lodge that power in his hands, he will have no patrimonial right to it; for the reason already mentioned: a right to govern by no means includes or supposes a' right to appoint another governor. But though a grant of civil power, from the people to their king, does not imply, that he shall have a right to alienate such power to whom he pleases, and, consequently, though there is, in the original settlement of a constitution, no occasion for the people expressly to stipulate,

* See Book I. Chap. II. § X.

that the sovereign power shall not be alienable by him or them, to whom they entrust it; yet it may still be a question, whether it is impossible for the people to make it so; whether it is inconsistent with the nature of the thing for the people, when they vest the civil power in the hands of a king, or of a body of nobility, or even of their own representatives, to give them, at the same time, a right to dispose of their power, either to exercise it themselves, or to alienate it to some one else.

The general objection against the notion of a plenary right in civil power, which * Grotius mentions, does not seem to be decisive against his opinion, that such a right is possible. Free men, such as the members of a civil society must be, are not, it is said, matter of commerce, they cannot be bought and sold, or alienated and acquired, as slaves are. This is, undoubtedly, true. When the civil government is transferred from the present possessor, to some one else; he, who acquires the power so transferred, cannot acquire the same power, which the purchaser of a slave acquires over the person of the slave. But this is no reason why he may not succeed by an act of his predecessor into the same power which his predecessor had. It is not possible, that by such act he should succeed into more: and if he does not, the subjects will be just as much free men, under the new governor, as they were under the old one. To suppose, that, if a king has a right to appoint his successor, or to alienate his kingdom, he must, necessarily, have a right to change the constitution, to give such successor a greater power than he had himself, or, perhaps, a power even of joining it as a province to dominions of his own, is supposing what is by no means contained in the notion of a patrimonial kingdom, and what Grotius particularly designed to guard against in this caution; where he has taken care to observe, that plenitude of property is so far from implying plenitude of power, that, if we were to inquire into facts, we should find the inferior sorts of civil power, as marquisates or dukedoms, to be more frequently alienable than sovereign power.

tances are.

We, indeed, in this kingdom, have been brought up under such a constitution of government, as will make us wonder at the notion of any kingdoms being patrimonial, if we have never looked beyond what passes amongst ourselves. But whoever has looked abroad, and has considered, with the least degree of attention, what has passed in other kingdoms, even in Europe, will find that, in the common opinion of mankind, kingdoms may be alienable, in like manner as other inheriIt can scarce admit of any question, whether they are so in themselves. Mr. Locke's reasoning upon this head seems to be decisive. "The legislative cannot transfer the power of making laws to any other hands. For it being a delegated power from the people,' they, who have it, cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting a legislative, and appointing in whose hands that shall be; and when the people have said, we will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say, other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen and author+Locke's Works, Vol. II. p. 215.

Grot. Lib. I. Cap. III. § XII.

ised to make laws for them. The power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what that positive grant conveyed; which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands."

But, then, though a king with legislative power, cannot, in virtue of such legislative power, alienate his kingdom, so that sovereignty in government, does not imply such sovereignty to be alienable, or plenitude of power does not imply plenitude of property in such power; yet there is still a farther question, whether the people who delegated the sovereign power, could not, likewise, confer a right upon the person or persons, to whom they delegated such power, of making it over to others? whether, as they gave the legislative power, they could not, likewise, give a right of transferring that power? If they could, then kingdoms, though they are not patrimonial in themselves, may be made so by the consent of the people, not only by a concurrence, at the time of transferring the sovereign power from the present possessor to his successor, but by a prior grant, at the time of delegating the sovereign power to such present possessor, or at any other time.

There are, certainly, many inconveniences, which would, probably, attend such an establishment as this; but none of them show it to be impossible. The danger which a nation is in, of being made a province, is one of these inconveniences, and has been mentioned already. And, upon that occasion, we observed, that plenitude of property, in civil power, would not give a king, or any other governing body, a right to do this: because, though they may have a right given them to alienate the power which they have, it is no consequence, that they have a right to transfer a power which they have not. The successor can have no right to any thing, which his predecessor had no right to: so that, if the nation was no province under the predecessor, it cannot, of right, become one by the transfer of civil power to his successor. Another inconvenience, attending such an establishment as this, is the possibility of the government's coming into improper hands, of its being alienated to such persons, as are neither agreeable to the people, nor fit for the office. This inconvenience, however great it seems to be, though it may show, that no nation would be likely to agree to such an establishment; if they were in so good a situation, as to be able to procure a better; yet will never prove such an establishment to be impos sible, in the nature of the thing. An inconvenience of the like sort may be apprehended, where the constitution has made even a limited, and much more, where it has made an absolute monarchy hereditary. In the course of succession, the civil power may come into the hands of a person, who is neither agreeable to the people, nor fit for the office. And yet the apprehension of such inconvenience would be looked upon as a very weak argument to prove, that all laws, which have entailed civil power upon such a particular person, and the heirs of his or of her body, are inconsistent with the nature of civil society, and, consequently, that such laws, however they are made in fact, are, in right, no laws at all.

It seems to be true, in general, that what the collective body of the people do by another, whom they have appointed to act for them, is as

much their own act, as if they did it themselves in a full assembly. In a kingdom, made hereditary by law, whether the king is limited or absolute, if there is a vacancy of the throne, either by abdication or otherwise, the choice of a successor, and the future settlement of the constitution would, undoubtedly, be binding upon the whole society, if such choice and settlement were made by persons entrusted for that purpose by the people; though this choice, and this appointment were not made in a full assembly of the whole collective body. We see, therefore, that the people may depute persons to choose governors for them, whether such governors have only a share in the legislative power, as in limited monarchies, or have the whole of it, as in absolute ones. And if it is not impossible, in the nature of the thing; that is, if it is not inconsistent with the nature of civil society, for the people to delegate their right of choosing legislators; it can scarce be thought impossible, in the nature of the thing, for the people to delegate such a power to the legislative in present possession. So that, though a king or a legislative body, merely as such, can have no right of appointing their successors, or of transferring their power to such successors; yet there does not appear to be any reason, why the collective body of the people may not, if they think proper, delegate or convey this right to their king or legislative body. And, consequently, though no kingdom, however absolute the power of the monarch may be, is, in its own nature, patrimonial; yet a kingdom may be made patrimonial by the consent of the people: it is possible for them, not only by their immediate concurrence to make a transfer of the power of governing them from the present possessor to any other person, whom they shall expressly approve at the time; but it is possible for them, by some former act of consent, to have given the present possessor a right to transfer that power to such person, as he shall approve of: and such a former act of consent will make his choice, in effect, their own.

Our author's caution, about this matter, may be proper to be repeated here; he observes, that this tenure of civil power, which we have called plenitude of property in it, and which is the supreme or highest tenure possible, is no evidence that he, who holds by it, has plenitude of civil power, or that his power is sovereign: for the tenure, by which the power is held, and the power itself, are different things; so that a power, which is patrimonial, may as well be an inferior sort of civil power, as sovereign or absolute civil power.

On the other hand, civil power may be sovereign or absolute; notwithstanding it is held by a tenure, which is inferior to plenary property, by a claim of use and profits, or by a temporary claim. Where the constitutional laws of a civil society have settled the succession to the crown, and have determined beforehand to whom it shall descend upon every demise; the present possessor, as our author says, holds his power by a tenure of usufruct; the use and profits of it are his to enjoy, but the thing itself is not his to dispose of. In like manner, where the crown is elective, and upon every vacancy, the people have a constitutional right to choose the successor; the present possessor holds by a claim of use and profits.

Perhaps in this latter instance, the tenure may rather appear to be temporary: since the right continues only for a certain term, for the life of the present possessor, and no longer. Whereas, in the former in