ated by their wants and their fears; yet it is the sense of their weakness and imperfection which keeps mankind together, which demonstrates the necessity of this union, and which therefore is the solid and natural foundation, as well as the cement of civil society. And this is what we mean by the phrase "original contract of society (m);" which, though perhaps in no instance has it ever been formally expressed at the first institution of a state, yet in nature and reason must always be understood and implied, in the very act of associating together: namely, that the whole should protect all its parts, *and that [ *42] every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for this protection) each individual should submit to the laws of the community; without which submission of all it were impossible that protection could be certainly extended to any.

of government.

For when civil society is once formed, government at the same time results of course, as necessary to preserve and to keep that society in order. Unless Origin and object some superior be constituted, whose commands and decisions all its members are bound to obey, they would still remain as in a state of nature, without any judge upon earth to define their several rights, and redress their several wrongs. But, as all the members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted? To this the general answer is easy; but the application of it to particular cases has occasioned many of those mischiefs, which are apt to proceed from misguided political zeal. In general, all mankind will agree that government should be reposed in such persons, in whom those qualities are most likely to be found, the perfection of which is among the attributes of Him who is emphatically styled the Supreme Being; the three grand requisites, of wisdom, of goodness, and of power: wisdom to discern the real interest of the community; goodness to endeavour always to pursue that real interest; and strength, or power, to carry such knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites which ought to be found in every well-constituted frame of government.

How the several forms of government we now see in the world at first actually began, is matter of great uncertainty, and has occasioned infinite disputes. However they began, or by what right soever they subsist, there is and must be in all of them a supreme, irresistible, *absolute, uncontrolled authority, [*43] in which the jura summa imperii, or the rights of sovereignty, reside. And this authority is placed in those hands, wherein (according to the opinion of the founders of such respective states, either expressly given, or collected from their tacit approbation,) the qualities requisite for supremacy, wisdom, goodness, and power, are the most likely to be found.

The political writers of antiquity will not allow more than three regular forms of government: the first, when the sovereign power is lodged in an Three forms of aggregate assembly, consisting of all the free members of a comgoverninent. munity, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is styled an aristocracy; the last, when it is intrusted in the hands of a single person, and then

(m) See further as to the meaning of this phrase, post, p. 46.

it takes the name of a monarchy. All other species of government, they say, are either corruptions of, or reducible to, these three.

By the sovereign power, as was before observed, we may understand to be meant the power of making laws; for wherever that power resides, all others must conform to, and be directed by it, whatever appearance the outward form and administration of the government may put on. For it is at any time in the option of the legislature to alter that form and administration by a new edict or rule, and to put the execution of the laws into whatever hands it pleases: by constituting one, or a few, or many executive magistrates: and all the other powers of the state must obey the legislative power in the discharge of their several functions, or else the constitution is at an end. (10)

disadvantages

of each.

In a democracy, where the right of making laws resides in the people at large, public virtue, or goodness of intention, is more likely to be found, than Advantages and either of the other qualities of government. Popular assemblies are frequently foolish in their contrivance, and weak in their execution; but generally mean to do the thing that is right and just, and have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be found than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens: [*44] but there is less honesty than in a republic, and less strength than in a monarchy. A monarchy is, indeed, the most powerful of any; for by the entire conjunction of the legislative and executive powers, all the sinews of government are knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength for improvident or oppressive purposes.

Thus these three species of government have their several perfections and imperfections. Democracies are usually the best calculated to direct the end of the law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the ancients, as was observed, had in general no idea of any other permanent form of government than these three: for though Cicero (n) declares himself of opinion, esse optime constitutam rempublicam, quæ ex tribus generibus illis, regali, optimo, et populari, sit modicè confusa; yet Tacitus treats this notion of a mixed government, formed out of them all, and partaking of the advantages of each, as a visionary whim, and one which, effected, could never be lasting or secure (o).

But, happily for us of this island, the British constitution has long remained,

(n) De Rep. 1. 1, c. 29 and c. 45.

(0) Cunctas nationes et urbes, populus, aut primores, aut singuli regunt: delecta ex his

et constituta reipublica forma laudari faciliùs quam evenire, vel, si evenit, haud diuturna esse potest. Ann. 1. 4, c. 33.

(10) The unlimited power which the English people concede to their parliament, has no place in our institutions. In this country the people are regarded as the true and only source of legislative power. This power is exercised by representatives, but they are not at liberty to pass such laws as they please, regardless of constitutional restrictions. With us, a written constitution is the supreme law of the land, and neither legislatures nor courts have a right to disregard the commands and directions therein contained. Every act of the legislature which violates the constitution is entirely void, and it is the duty of the courts so to declare it, and to refuse to give effect to its provisions. See Marbury v. Madison, 1 Cranch, 177. See post. Note 65.

VOL. I.-5

and I trust observation. Wherein resides

the supreme power of the British constitution.

will long continue, a standing exception to the truth of this For, as with us the executive power of the laws is lodged in a single person, they have all the advantages of strength and dispatch, that are to be found in the most absolute monarchy: and as the legislature of the kingdom is intrusted to three distinct powers, [ *45] entirely independent of *each other; first, the king; secondly, the lords, spiritual and temporal, which is an aristocratical assembly of persons selected for their piety and learning, their birth, their wisdom, their valour, or their property; and thirdly, the house of commons, freely chosen by the people from among themselves, which makes it a kind of democracy; as this aggregate body, actuated by different springs, and attentive to different interests, composes the British parliament, and has the supreme disposal of everything; there can no inconvenience be attempted by either of the three branches which will not be withstood by one of the other two; each branch being armed with a negative power, sufficient to repel any innovation which it shall think inexpedient or dangerous.

Here then is lodged the sovereignty of the British constitution; and lodged as beneficially as is possible for society. For in no other shape could we be so certain of finding the three great qualities of government so well and so happily united. If the supreme power were lodged in any one of the three branches separately, we should be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three principal ingredients of good polity,-virtue, wisdom, and power. If it were lodged in any two of the branches; for instance, in the king and house of lords, our laws might be providently made, and well executed, but they might not have always the good of the people in view: if lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: if the supreme rights of legislature were lodged in the two houses only, and the king had no negative upon their proceedings, they might be tempted to encroach upon the royal prerogative, or perhaps to abolish the kingly office, and thereby weaken (if not totally destroy) the strength of the executive power. But the constitutional government of this island is so admirably tempered and compounded, that nothing can *endanger or hurt it, but destroying the equilibrium of power between [ *46] one branch of the legislature and the rest. For if ever it should happen that the independence of any one of the three should be lost, or that it should become subservient to the views of either of the other two, there would soon be an end of our constitution. The legislature would be changed from that which (upon the supposition of an original contract, either actual or implied) is presumed to have been originally set up by the general consent and fundamental act of the society: and such a change, however effected, is according to Mr. Locke (p) (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people are thereby reduced to a state of anarchy, with liberty to constitute to themselves a new legislative power (q).

(p) On government, part 2, s. 212. (9) During the proceedings on the impeachment of Dr. Sacheverell (15 St. Tr. 1) we find Mr. Lechmere thus speaking to the Lords (Id. 61): "The nature of our constitution is that of a limited monarchy, wherein

the supreme power is communicated and divided between Queen, Lords, and Commons, though the executive power and administration be wholly in the Crown. The terms of such a constitution do not only suppose, but express, an original contract

supreme power

Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and compounded from them all, I proThe right of the ceed to observe, that, as the power of making laws constitutes the to make laws. supreme authority, so wherever the supreme authority in any state resides, it is the right of that authority to make laws; that is, in the words of our definition, to prescribe the *rule of civil action. And this [*47] may be discovered from the very end and institution of civil states. For a state is a collective body, composed of a multitude of individuals, united for their safety and convenience, and intending to act together as one man. If it therefore is to act as one man, it ought to act by one uniform will. But, inasmuch as political communities are made up of many natural persons, each of whom has his particular will and inclination, these several wills cannot by any natural union be joined together, or tempered and disposed into a lasting harmony, so as to constitute and produce that one uniform will of the whole. It can therefore be no otherwise produced than by a political union; by the consent of all persons to submit their own private wills to the will of one man, or of one or more assemblies of men, to whom the supreme authority is intrusted and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be "law.” Thus far as to the right of the supreme power to make laws; but further, it is its duty likewise.(11) For, since the respective members are bound to conform themselves to the will of the State, it is expedient that they receive directions from the state declaratory of its will. But, as it is impossible, in so great a multitude, to give injunctions to every particular man, relative to each particular action, it is therefore incumbent on the state to establish general rules, for the perpetual information and direction of all persons in essential

The duty to make laws.

between the Crown and the people, by which that supreme power was (by mutual consent, and not by accident) limited and lodged in more hands than one; and the uniform pre servation of such a constitution for so many ages without any fundamental change demonstrates the continuance of the same contract. The consequences of such a frame of

government are obvious: that the laws are the rule to both, the common measure of the power of the Crown and of the obedience of the subject; and if the executive part endeavours the subversion and total destruction of the government, the original contract is thereby broken and the right of allegiance ceases.'

(11) When the people, through the constitution, delegated the law-making power to the legislature, it conferred an authority and imposed a duty, which cannot be constitutionally exercised by any other body of men, nor by a vote of the whole people, even though referred to them by the legislature to determine by a popular vote. Barto v. Himrod,8 N. Y. (4 Seld.) 483; Rice v. Foster, 4 Harr. 479; Santo v. State, 2 Iowa, 165; People v. Collins, 3 Mich. 343; Railroad Co. v. Commissioners of Clinton Co., 1 Ohio St. 77; Parker v. Commonwealth, 6 Penn. St. 507; Maize v. State, 4 Ind. 342; State v. Parker, 26 Vt. 357, 362; State v. Swisher, 17 Tex. 441; State v. Copeland, 3 R. I. 33; State v. Wilcox, 45 Mo. 458. A statute, however, may be conditional, as to its taking effect upon the happening of some future specified event. Starin v. Town of Genoa, 23 N. Y. (9 Smith) 439, 447; Peck v. Weddell, 17 Ohio St. 271; State v. Parker, 26 Vt. 357; State v. Kirkley, 29 Md. 85; Bull v. Read, 13 Grat. 78; Brig Aurora v. United States, 7 Cranch, 382. When the law is complete, and the proper formalities of its enactment have been observed, it may be left to a vote to determine whether it shall be accepted. Ib.

Such references to the people of a particular locality are frequent, and sustained by the courts. Clarke v. City of Rochester, 28 N. Y. (1 Tiff.) 605, 634, 635; Bank of Rome v. Village of Rome, 18 N. Y. (4 Smith) 38; Bank of Chenango v. Brown, 26 N. Y. (12 Smith) 467; Bull v. Read, 13 Grat. 78; Morford v. Unger, 8 Iowa 82; City of Patterson v. Society, etc., 4 Zabr. 385; Gorham v. Springfield, 21 Me. 58; Commonwealth v. Judges of Quarter Sessions, 8

points, whether of positive or negative duty. And this, in order that every man may know what to look upon as his own, what as another's; what absolute and what relative duties are required at his hands; what is to be esteemed honest, dishonest, or indifferent; what degree every man retains of his natural liberty; what he has given up as the price of the benefits of society; and after what manner each person is to moderate the use and exercise of those rights which the *state assigns him, in order to promote and secure the public [ *48] tranquillity.

From what has been advanced, the truth of the former branch of our definition is (I trust) sufficiently evident; that "municipal law is a rule of civil conduct prescribed by the supreme power in a state." I proceed now to the latter branch of it; that it is a rule so prescribed, "communicipal law. manding what is right, prohibiting what is wrong, and regulating

On the second branch of the

definition of

matters in themselves indifferent."

Now, in order to do this completely, it is first of all necessary that the boundaries of right and wrong be established and ascertained by law. And when this is once done, it will follow of course that it is likewise the business of the law, considered as a rule of civil conduct, to enforce the rights, and to restrain or redress the wrongs, which have been ascertained. It remains, therefore, only to consider in what manner the law is said to ascertain the boundaries of right and wrong; and the methods which it takes to command the one and to prohibit the other.

be declaratory,

edial, and vindicatory.

For this purpose every law may be said to consist of several parts: one, declaratory; whereby the rights to be observed, and the wrongs to be eschewed, Every law should are clearly defined and laid down: another, directory; whereby directory, rem- the subject is instructed and enjoined to observe those rights, and to abstain from the commission of those wrongs: a third, remedial; whereby a method is pointed out to recover a man's private rights, or redress his private wrongs: to which may be added a fourth, usually termed the sanction or vindicatory branch of the law; whereby is signified what evil or penalty shall be incurred by such as commit any public wrong, and transgress or neglect their duty.

With regard to the first of these, the declaratory part of the municipal law, this mainly depends upon the wisdom and will of the legislator. Those rights even which God and nature have established, and which are

Declaratory.

Penn. St. 391; State v. Wilcox, 45 Mo. 458; Hobart v. Supervisors, etc., 17 Cal. 23; Steward v. Jefferson, 3 Harr. 335; Burgess v. Pue, 2 Gill. 11.

The legislature frequently submits questions to the inhabitants of localities as to the division of towns or counties, the fixing or change of the county seat, the division of school districts, as to the creation of debts for a specified object, and the like cases, and the courts sustain the proceedings. People v. Reynolds, 5 Gilm. 1; Commonwealth v. Judges, etc., 8 Penn. St. 391; Call v. Chadbourne, 46 Me. 206; Commonwealth v. Painter, 10 Penn. St. 214; Goddin v. Crump, 8 Leigh, 120; Bridgeport v. Housatonic R. R. Co., 15 Conn. 475; Starin v. Genoa, 23 N. Y. (9 Smith) 439; Prettyman v. Supervisors, etc., 19 Ill. 406; Bushnell v. Beloit, 10 Wis. 195; Stein v. Mobile, 24 Ala. 591; Hobart v. Supervisors, 17 Cal. 23; Clapp v. Cedar Co., 5 Iowa, 15; Taylor v. Newbern, 2 Jones' Eq. 141; Nichol v. Mayor of Nashville, 9 Humph. 252; State v. Commissioners of Hancock, 12 Ohio St. 596; Powers v. Dougherty Co., 23 Ga. 65: San Antonio v. Jones, 28 Tex. 19; Slack v. R. R. Co., 13 B. Monr. 1; City of Aurora v. West, 9 Ind. 74; Cotton v. Commissioners of Leon, 6 Fla. 610; State v. Charleston, 10 Rich. 491; Thompson v. Lee Co., 3 Wall. 327; Gibbons v. Mobile & G. M. R. R. Co., 36 Ala. 310; State v. Linn Co. Court, 44 Mo. 504.