<the legislative ever have limited him in this refpect, and tied ⚫ him down to call them together at any particular time or place; fo far this prerogative is at an end; and the act of calling them together, though it might once be an act of prerogative, and fo may ftill retain the name, becomes in its "nature minifterial.

• We may from hence learn, that in those nations, in which there is any struggle between the legislative body and the · perfon 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, con<fidered abstractedly, or as they are in themselves, are marked out diftinctly enough for any one to fee their respective limits. "It belongs to the legislative power, confidered as the common ⚫ understanding, or joint sense of the body politic, to determine and direct what is right to be done: and it belongs to the executive power, confidered as the common or joint ftrength of the fame body, to carry what is fo determined • and directed into execution. But in those particular civil focieties, where the legislative and executive power are lodged in different hands, it is ufual, especially if the legislative body is a large one, to allow thofe, who have the executive 'power, to act difcretionally in fome cafes, that is, it is ufual, for them to have in fome inftances such a discretionary power as is called prerogative. And the only fubject of difpute a'bout prerogative, that can be intelligible, is between the executive body and the legislative body, concerning the inftances, where this difcretionary power takes place, or else ❝ concerning the extent of it in fome particular inftance; that is, they may poffibly difpute, either how far, in fettling the conftitution of government, fuch power of acting at difcretion, vested in the executive body, was defigned to extend, or how far it may be proper and convenient for the public, that it fhould extend.

The reader may perhaps have met with fome difficulties in this chapter for want of having attended to a neceffary dif'tinction between the legislative power of civil fociety in general, and the legislative body of any particular fociety, and to a ⚫ like diftinction between the executive power and the perfon or perfons, with whom fuch power is entrufted. The following

chapter is the place, in which the fubject will lead us to eplain this diftinction. And when it is explained, fome paffages in this, which may have appeared difficult, will pro bably be better understood.

Chapter fourth treats of the different forms of civil government. He makes a proper diftinction between the names of fovereign and fupreme; reduces the civil conftitutions of government, to monarchy, ariftocracy, and democracy; and obferves, that a mixed conftitution is one in which two or more of thefe fimple forms are compounded. He proves that befides the compact, which unites a number of perfons into a politic, and gives them an original legislative power, as a collective body, it is neceffary, that there fhould be fome farther act of mutual confent, in order to fettle any other legislative body; that is, in order to establish a form ⚫ of government in any civil fociety whatsoever. Unless indeed we could find a fociety, where the government is popular in the fullest fenfe of the word; a fociety, 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 fhare in the legislative power, and act by themselves, and not by their representa ⚫tives.' He goes on declaring that as a king, invested with ♦ legiflative power, is to be confidered as a legislative body, appointed by the confent of the collective body of the whole fociety; fo the nobles in ariftocratical states are a body of the fame fort appointed in the fame manner: and even in democratical ftates, fince the legiflative body is ufually a part of the people, and not the collective body of the whole fociety, the legislative power of such body must be derived from the fame principles, and must rest upon the fame foundation with kingly power in monarchical constitutions.' A like compact, agreement, or law, is necessary to give any particular person or perfons the authority of acting with the public force, exclufive of the reft, or to establish an executive body. Then he confiders a defpotic conftitution, which is produced when the compact by which the legislative and executive powers are conveyed, has established both of them in the fame perfon or in the fame body; whether that body consists of one person or of more, the conftitution is called defpotic. Yet this power, though

4

though termed 'absolute, as it is in respect of any conftitu tional reftraint, will still be limited by its own nature; for, as this is a power formed for certain purposes, it cannot in its own nature, be fo far abfolute, as to be free either to promote those purposes or to prevent them. A magiftrate invested by compact with the authority of exerting the whole public force of the fociety, becomes the executive body; but a breach of that compact, on the part of the executive body, will give the collective body, if not a conftitutional, yet cer tainly 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 conftitutions, except fuch as are not monarchical, are unnatural; and on the other hand, that a monarchical conftitution is inconfiftent with the nature of civil fociety. He launches out into a minute differtation upon this doctrine of Grotius ; that in all civil focieties, without exception, we ought not to fuppofe the fovereign power is vefted in the people, so as to make them the conftitutional judges whether their kings or governors abuse their authority; and to give them a conftitutional right of reftraining or punifhing thofe governors where they are chargeable with fuch abufe. The doctor is very full on this fubject: he refutes the abfurdities of Gronovius the commentator on Grotius. He demonftrates that all conftitutions are not neceffarily democratical; diftinguishes between a ftate of civil fubjection and flavery; fhews the difference between a conftitutional right in the people to interfere in the affairs of government, to direct or reftrain 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 conftitution, as it was at firft fettled, when any attempts are made to alter it; to refume the legislative and executive power, when the conftitution has been broken; or to defend themfelves against all unfocial or unconstitutional oppreffion.

He fays, whoever would form a true judgment concerning the conftitution of civil government, in his own or in any other country, muft confider it as a queftion of fact, and perfe records and hiftory inftead of amufing himself with abftract

fract reafonings; in doing which we ought to be careful that we are not mifled by titles or appearances, such as those of emperor, king, prince, or duke that we diftinguish the tenure by which a sovereign holds his power, from the power itself; that we confider that a king's power may be limited by his own oath or promife; and that we must not conclude that every conftitution is at prefent what it appears to have been formerly, because civil conftitutions, like all other things, are fubject to alterations...

He, in the subsequent chapter, proceeds to treat of the changes produced in the rights of individuals by civil union. A man's right of private defence is reftrained in a state of civil fociety; because the act of focial union which gave him a Light to protection, put his liberty of private defence into the hands 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 jurifdiction over the persons of individuals. He confiders how this jurifdiction arifes, and in what manner it may cease. It ceafes, in fact, for the prefent, when the injury which threatens us is so immediate, that the civil magiftrate cannot come to our relief: in that case, we are at liberty to defend ourselves by our own private force. The lofs of life, or the lofs of chastity are irreparable injuries; and if the public cannot interpofe to fcreen perfons from these injuries, they are at liberty to defend themselves, even by effecting the death of the aggreffors. If a man (says he) has been threatening to kill you, and is feizing a fword or fome other weapon, with a plain defign, 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 breast. Suppofe, that you and the aggreffor had closed with one another, and had struggled together for fome time, before you were able to get fuch an advantage over him, as to 'make your defence effectual by difpatching him; though this length of time cannot ftrictly be called an inftant, yet your right of private defence continues during the whole of it: because there is in every part of it the fame impoffibility of

'your

your being affifted by the civil magiftrate or protected by the public.'

In demonftrating how far civil jurifdiction may cease in respect of the right to punish, he fays, When we [have been • robbed of our money or our goods, and the criminal is going away, fo that we are in no danger of fuffering any other harm at prefent, 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 loft, or the purpose of punishing him, to prevent his doing the like mischief hereafter either to ourselves or to others. The mere taking away his life cannot come within the notion of reparation any otherwise, than as we may fuppofe it to be the only poffible 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 him, that, inftead 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 mifchief. If this is the answer, ⚫ which the common sense of mankind would suggest to them upon this occafion; it is plain that in the judgment of mankind, the death of the criminal in thefe circumstances is intended as a punishment: for the notion of punishment con'fists in making a perfon, who has shewn a hurtful disposition by fome harm already done, fuffer fuch evil, as will prevent his doing the like again.

'But fuppofing it to be true, that, where civil jurifdi&tion ⚫ thus ceases, the members of a civil fociety would be at liberty to punish one another separately; if they were under no other reftraint, but what arifes from civil union, yet they may be ftill farther reftrained by civil laws. And fuch 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 impoffible to call in the civil magistrate, when perhaps no crime was committed, which deserved punishment, or at least, when they might have had the affiftance of the f civil magiftrate, if they had chofen it.

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