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« the legislative ever have limited him in this respect, and tied • him down to call them together. at any particular time 6 or place; so far this prerogative is at an end; and the act

of calling them together, though it might once be an act of "prerogative, and so may still retain the name, becomes in its nature ministerial.

• We may from hence learn, that in those nations, in which there is any struggle between the legislative body and the person or persons who are entrusted with the executive power, this is not a struggle between the legislative and the executive powers.' The provinces of these two powers, considered abstractedly, or as they are in themselves, are marked out distinctly enough for any one to see their respective limits. It belongs to the legislative power, considered as the common understanding, or joint sense of the body politic, to deter(mine and direct what is right to be done : and it belongs to

the executive power, considered as the common or joint

strength of the same body, to carry what is so determined cand directed into execution. But in those particular civil so

cieties, where the legislative and executive power are lodged in different hands, it is usual, especially if the legislative body is a large one, to allow those, who have the executive power, to act discretionally in some cases, that is, it is usual,

for them to have in some instances such a discretionary power, (as is called prerogative. And the only subject of dispute a, bout prerogative, that can be intelligible, is between the executive body and the legislative body, concerning the in, stances, where this discretionary power takes place, or else concerning the extent of it in some particular instance ; that is, they may poflibly dispute, either how far, in settling the 6. constitution of government, such power of acting at dif

cretion, vested in the executive body, was designed to extend, or how far it may be proper and convenient for the pu. blic, that it should extend.

The reader may perhaps have met with some difficulties in this chapter, for want of having attended to a necessary diftinction between the legislative power of civil society in gene

ral, and the legislative body of any particular society, and to a « like distinction between the executive power and the person or 6 persons, with whom such power is entrusted. The following


Ý chap

chapter is the place, in which the subject will lead us to ens

plain this distinction. And when it is explained, some pass 6 lages in this, which may have appeared difficult, will prot • bably be better understood, « Chapter fourth treats of the different forms of civil government. He makes a proper distinction between the names of sovereign and fupreme ; reduces the civil constitutions of government, to monarchy, aristocracy, and democracy ; and observes, that a mixed constitution is one in which two or more of these simple forms are compounded. He proves that • besides the compact, which unites a number of persons

into a politic, and gives them an original legislative power, • as a collective body, it is necessary, that there should be . fome farther act of mutual consent, in order to settle any 4 other legislative body; that is, in order to eftablish a form

of government in any civil society whatsoever. Unless indeed we could find a society, where the government is po

pular in the fullest senfe of the word ; a society, where all ! perfons of free condition, who are old enough to be natu• rally capable of acting for themselves, whether they are

men or women, poor or rich, have a share in the legislative • power, and act by themselves, and not by their representa, • tives.' He goes on declaring that as a king, invested with

legislative power, is to be considered as a legislative body, ! appointed by the consent of the collective body of the whole 5 fociety; fo the nobles in aristocratical states are a body of

the fame fort appointed in the same manner: and even in democratical states, since the legislative body is ufually a part of the people, and not the collective body of the whole

society, the legislative power of such body must be derived & froin the same principles, and must rest upon the same foun

dation with kingly power in monarchical constitutions. A like compact, agreement, or law, is necessary to give any particular person or persons the authority of acting with the public force, exclufive of the rest, or to establish an executive body. Then he considers a despotic constitution, which is produced when the compact by which the legislative and executive powers are conveyed, has established both of them in the same person or in the fame body; whether that body consists of one person or of more, the constitution is called despotic. Yet this power,


though termed' absolute, as it is in respect of any conftitue fional restraint, will kill be limited by its own nature ; for, as this is a power formed for certain purposes, it cannot in its own nature, be so fas absolute, as to be free either to promote those purpofes or to prevent them. A magiftrate in. vested by compact with the authority of exerting the whole public force of the society, becomes the executive body; but a breach of that compact, on the part of the executive body, will give the collective body, if not & conftitutional, yet cergainly a natural, right to alter it'.

He examines fome of the abftracted arguments used by those who have attempted to prove on the one hand, that all constitutione, except fuch as are not monarchical, are unnatural ; and on the other hand, that a inonarchical constitution is inconsistent with the nature of civil society. He launches put into a minute dissertation upon this doctrine of Grotius ; that in all civil societies, without exception, we ought not to suppose the fovereign power is vested in the people, so as to make them the constitutional judges whether their kings or governors abuse their authority; and to give them a conftitutional right of restraining or punishing those governors where they are chargeable with such abuse. The doctor is very full on this subject : he refutes the absurdities of Gronovius the commentator on Grotius. He demonstrates that all constitutions are not necessarily democratical; distinguishes between a state of civil fubjection and Navery; shews the difference between a constitutional right in the people to interfere in the affairs of government, to direct or restrain the legislative and executive bodies in the exercise of the power that is intrusted with these bodies; and a natural right in the people to maintain the constitution, as it was at first settled, when any attempts are inade to alter it ; to resume the legislative and executive power, when the constitution has been broken ; or to defend themselves against all unsocial or unconstitutional oppression.

He says, whoever would form a true judgment concerning the constitution of civil government, in his own or in any other country, must consider it as a question of fact, and perse records and history instead of amusing liimself with abAract reasonings ; in doing which we ought to be careful that we are not misled by titles or appearances, such as those of emperor, king, prince, or duke : that we distinguish the tenure by which a sovereign holds his power, from the power itself; that we consider that a king's power may bė limited by his own oath or promise ; and that we must not conclude that every constitution is at present what it appears to have been formerly, because civil constitutions, like all other things, are subject to alterations. .. .


He, in the subsequent chapter, proceeds ito-treat of the changes produced in the rights of individuals by.civil union. A man's right of private defence is restrained in a state of civil fociety ; because the act of social union which gave him a right to protection, put his liberty of private defence into the bands of the public, or of the civil magistrate who acts for the public, This civil union, or some act equivalent to it, is the foundation of civil jurisdiction over the persons of individuals. He considers how this jurisdiction arises, and in what manner it may cease. It ceafes, in fact, for the present, when the injury which threatens us is so immediate, that the civil magistrate cannot come to our relief: in that case, we are at liberty to defend ourselves by our own private force. The loss of life, or the loss of chastity are irreparable injuries ; and if the public cannot interpofe to screen persons from these injuries, they are at liberty to defend themselves, even by effecting the death of the aggressors. " If a man (Jays he) has been • threatening to kill you, and is seizing a sword or some other • weapon, with a plain design, as far as you can judge, of putting his threats into execution ; the danger is immediate

enough to justify your defence of yourself, at your own dif«cretion, without waiting till the weapon is at your breaft.

Suppose, that you and the aggressor had closed with one ( another, and had struggled together for some time, before

you were able to get such an advantage over him, as to • make your defence effectual by dispatching him ; though this

length of time cannot strictly be called an instant, yet your « right of private defence continues during the whole of it: because there is in every part of it the same impossibility of

your s your being affifted by the civil magistratę or protected by the public.'

In demonstrating how far civil jurisdiction may çease in respect of the right to punish, he says, When we shave been s robbed of our money or our goods, and the criminal is going ( away, so that we are in no danger of suffering any other harm 4 at present, than what he has done already; if any thing ! can justify us in killing him with an arrow or a pistol, it must be either the purpose of obtaining reparation for what

we have lost, or the purpose of punishing him, to prevent his ? doing the like mischief hereafter either to ourselves or to Sothers. The mere taking away his life cannot come within § the notion of reparation any otherwise, than as we may suppose { it to be the only possible means of getting our money or our

goods again, when he is going away with them. And it is most probable, if we were asked, why we killed bim, that, • instead of taking notice of the reparation due to us for the

• damage, which he had done, we should say, that we did it - ¢ in order to take a dangerous man out of the way, and to ? prevent his doing any farther mischief. If this is the answer,

which the common sense of mankind would suggest to them . upon this accasion; it is plain that in the judgment of man• kind, the death of the criminal in these circumstances is in

tended as a punishment: for the notion of punishment con• fists in making a person, who has shewn a hurtful dispofistíon by some harm already done, suffer such evil, as will pre* vent his doing the like again.

• But supposing it to be true, that, where civil jurisdiction ¢ thus ceases, the members of a civil society would be at liberty

to punish one another separately; if they were under no ? other restraint, but what arises from civil union, yet they ! may be still farther restrained by civil laws. And such laws ! would be reasonable upon account of the likelihood, that

this liberty might be abused : they might pretend, that they punished the criminal by their own private force, because

they found it impossible to call in the civil magistrate, when • perhaps no crime was committed, which deserved punishment, ! or at least, when they might have had the alistance of the civil magistrate, if they had chosen it.

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