Commentaries on the Laws of England Part 3

[Footnote s: Of Parliaments. 57.]

A PLAN of this nature, if executed with care and ability, cannot fail of administring a most useful and rational entertainment to students of all ranks and professions; and yet it must be confessed that the study of the laws is not merely a matter of amus.e.m.e.nt: for as a very judicious writer[t] has observed upon a similar occasion, the learner "will be considerably disappointed if he looks for entertainment without the expence of attention." An attention, however, not greater than is usually bestowed in mastering the rudiments of other sciences, or sometimes in pursuing a favorite recreation or exercise. And this attention is not equally necessary to be exerted by every student upon every occasion. Some branches of the law, as the formal process of civil suits, and the subtile distinctions incident to landed property, which are the most difficult to be thoroughly understood, are the least worth the pains of understanding, except to such gentlemen as intend to pursue the profession. To others I may venture to apply, with a slight alteration, the words of sir John Fortescue[u], when first his royal pupil determines to engage in this study. "It will not be necessary for a gentleman, as such, to examine with a close application the critical niceties of the law. It will fully be sufficient, and he may well enough be denominated a lawyer, if under the instruction of a master he traces up the principles and grounds of the law, even to their original elements. Therefore in a very short period, and with very little labour, he may be sufficiently informed in the laws of his country, if he will but apply his mind in good earnest to receive and apprehend them. For, though such knowlege as is necessary for a judge is hardly to be acquired by the lucubrations of twenty years, yet with a genius of tolerable perspicacity, that knowlege which is fit for a person of birth or condition may be learned in a single year, without neglecting his other improvements."

[Footnote t: Dr Taylor's preface to Elem. of civil law.]

[Footnote u: _Tibi, princeps, necesse non erit mysteria legis Angliae longo disciplinatu rimare. Sufficiet tibi,--_et fatis _denominari legista mereberis, si legum principia & causas, usque ad elementa, discipuli more indagaveris.--Quare tu, princeps serenissime, parvo tempore, parva industria, sufficienter eris in legibus regni Angliae eruditus, dummodo ad ejus apprehensionem tu conferas animum tuum.--Nosco namque ingenii tui perspicacitatem, quo audacter p.r.o.nuntio quod in legibus illis (licet earum peritia, qualis judicibus necessaria est, vix viginti annorum lucubrationibus acquiratur) tu doctrinam principi congruam in anno uno sufficienter nancisceris; nec interim militarem disciplinam, ad quam tam ardenter anhelas, negliges; sed ea, recreationis loco, etiam anno illo tu ad libitum perfrueris._ _c._ 8.]

TO the few therefore (the very few, I am persuaded,) that entertain such unworthy notions of an university, as to suppose it intended for mere dissipation of thought; to such as mean only to while away the aukward interval from childhood to twenty one, between the restraints of the school and the licentiousness of politer life, in a calm middle state of mental and of moral inactivity; to these Mr Viner gives no invitation to an entertainment which they never can relish. But to the long and ill.u.s.trious train of n.o.ble and ingenuous youth, who are not more distinguished among us by their birth and possessions, than by the regularity of their conduct and their thirst after useful knowlege, to these our benefactor has consecrated the fruits of a long and laborious life, worn out in the duties of his calling; and will joyfully reflect (if such reflexions can be now the employment of his thoughts) that he could not more effectually have benefited posterity, or contributed to the service of the public, than by founding an inst.i.tution which may instruct the rising generation in the wisdom of our civil polity, and inform them with a desire to be still better acquainted with the laws and const.i.tution of their country.

SECTION THE SECOND.

OF THE NATURE OF LAWS IN GENERAL.

LAW, in it's most general and comprehensive sense, signifies a rule of action; and is applied indiscriminately to all kinds of action, whether animate, or inanimate, rational or irrational. Thus we say, the laws of motion, of gravitation, of optics, or mechanics, as well as the laws of nature and of nations. And it is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey.

THUS when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be.

When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform. And, to descend from the greatest operations to the smallest, when a workman forms a clock, or other piece of mechanism, he establishes at his own pleasure certain arbitrary laws for it's direction; as that the hand shall describe a given s.p.a.ce in a given time; to which law as long as the work conforms, so long it continues in perfection, and answers the end of it's formation.

IF we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws; more numerous indeed, but equally fixed and invariable. The whole progres of plants, from the seed to the root, and from thence to the seed again;--the method of animal nutrition, digestion, secretion, and all other branches of vital oeconomy;--are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.

THIS then is the general signification of law, a rule of action dictated by some superior being; and in those creatures that have neither the power to think, nor to will, such laws must be invariably obeyed, so long as the creature itself subsists, for it's existence depends on that obedience. But laws, in their more confined sense, and in which it is our present business to consider them, denote the rules, not of action in general, but of _human_ action or conduct: that is, the precepts by which man, the n.o.blest of all sublunary beings, a creature endowed with both reason and freewill, is commanded to make use of those faculties in the general regulation of his behaviour.

MAN, considered as a creature, must necessarily be subject to the laws of his creator, for he is entirely a dependent being. A being, independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependance will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct: not indeed in every particular, but in all those points wherein his dependance consists. This principle therefore has more or less extent and effect, in proportion as the superiority of the one and the dependance of the other is greater or less, absolute or limited. And consequently as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker's will.

THIS will of his maker is called the law of nature. For as G.o.d, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.

CONSIDERING the creator only as a being of infinite _power_, he was able unquestionably to have prescribed whatever laws he pleased to his creature, man, however unjust or severe. But as he is also a being of infinite _wisdom_, he has laid down only such laws as were founded in those relations of justice, that existed in the nature of things antecedent to any positive precept. These are the eternal, immutable laws of good and evil, to which the creator himself in all his dispensations conforms; and which he has enabled human reason to discover, so far as they are necessary for the conduct of human actions. Such among others are these principles: that we should live honestly, should hurt n.o.body, and should render to every one it's due; to which three general precepts Justinian[a] has reduced the whole doctrine of law.

[Footnote a: _Juris praecepta sunt haec, honeste vivere, alterum non laedere, suum cuique tribuere._ _Inst._ 1. 1. 3.]

BUT if the discovery of these first principles of the law of nature depended only upon the due exertion of right reason, and could not otherwise be attained than by a chain of metaphysical disquisitions, mankind would have wanted some inducement to have quickened their inquiries, and the greater part of the world would have rested content in mental indolence, and ignorance it's inseparable companion. As therefore the creator is a being, not only of infinite _power_, and _wisdom_, but also of infinite _goodness_, he has been pleased so to contrive the const.i.tution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love, that universal principle of action. For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he has not perplexed the law of nature with a mult.i.tude of abstracted rules and precepts, referring merely to the fitness or unfitness of things, as some have vainly surmised; but has graciously reduced the rule of obedience to this one paternal precept, "that man should pursue his own happiness." This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man's real happiness, and therefore that the law of nature forbids it.

THIS law of nature, being co-eval with mankind and dictated by G.o.d himself, is of course superior in obligation to any other. It is binding over all the globe, in all countries, and at all times: no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.

BUT in order to apply this to the particular exigencies of each individual, it is still necessary to have recourse to reason; whose office it is to discover, as was before observed, what the law of nature directs in every circ.u.mstance of life; by considering, what method will tend the most effectually to our own substantial happiness. And if our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by pa.s.sions, unclouded by prejudice, unimpaired by disease or intemperance, the task would be pleasant and easy; we should need no other guide but this. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.

THIS has given manifold occasion for the benign interposition of divine providence; which, in companion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in divers manners, to discover and enforce it's laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity. But we are not from thence to conclude that the knowlege of these truths was attainable by reason, in it's present corrupted state; since we find that, until they were revealed, they were hid from the wisdom of ages.

As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity. Yet undoubtedly the revealed law is (humanly speaking) of infinitely more authority than what we generally call the natural law. Because one is the law of nature, expressly declared so to be by G.o.d himself; the other is only what, by the a.s.sistance of human reason, we imagine to be that law. If we could be as certain of the latter as we are of the former, both would have an equal authority; but, till then, they can never be put in any compet.i.tion together.

UPON these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former. To instance in the case of murder: this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws, that annex a punishment to it, do not at all increase it's moral guilt, or superadd any fresh obligation _in foro conscientiae_ to abstain from it's perpetration. Nay, if any human law should allow or injoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine. But with regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws; such, for instance, as exporting of wool into foreign countries; here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.

IF man were to live in a state of nature, unconnected with other individuals, there would be no occasion for any other laws, than the law of nature, and the law of G.o.d. Neither could any other law possibly exist; for a law always supposes some superior who is to make it; and in a state of nature we are all equal, without any other superior but him who is the author of our being. But man was formed for society; and, as is demonstrated by the writers on this subject[b], is neither capable of living alone, nor indeed has the courage to do it. However, as it is impossible for the whole race of mankind to be united in one great society, they must necessarily divide into many; and form separate states, commonwealths, and nations; entirely independent of each other, and yet liable to a mutual intercourse. Hence arises a third kind of law to regulate this mutual intercourse, called "the law of nations;" which, as none of these states will acknowlege a superiority in the other, cannot be dictated by either; but depends entirely upon the rules of natural law, or upon mutual compacts, treaties, leagues, and agreements between these several communities: in the construction also of which compacts we have no other rule to resort to, but the law of nature; being the only one to which both communities are equally subject: and therefore the civil law[c] very justly observes, that _quod naturalis ratio inter omnes homines const.i.tuit, vocatur jus gentium_.

[Footnote b: Puffendorf, _l._ 7. _c._ 1. compared with Barbeyrac's commentary.]

[Footnote c: _Ff._ 1. 1. 9.]

THUS much I thought it necessary to premise concerning the law of nature, the revealed law, and the law of nations, before I proceeded to treat more fully of the princ.i.p.al subject of this section, munic.i.p.al or civil law; that is, the rule by which particular districts, communities, or nations are governed; being thus defined by Justinian[d], "_jus civile est quod quisque sibi populus const.i.tuit_."

I call it _munic.i.p.al_ law, in compliance with common speech; for, tho'

strictly that expression denotes the particular customs of one single _municipium_ or free town, yet it may with sufficient propriety be applied to any one state or nation, which is governed by the same laws and customs.

[Footnote d: _Inst._ 1. 2. 1.]

MUNIc.i.p.aL law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong." Let us endeavour to explain it's several properties, as they arise out of this definition.

AND, first, it is a _rule_; not a transient sudden order from a superior to or concerning a particular person; but something permanent, uniform, and universal. Therefore a particular act of the legislature to confiscate the goods of t.i.tius, or to attaint him of high treason, does not enter into the idea of a munic.i.p.al law: for the operation of this act is spent upon t.i.tius only, and has no relation to the community in general; it is rather a sentence than a law. But an act to declare that the crime of which t.i.tius is accused shall be deemed high treason; this has permanency, uniformity, and universality, and therefore is properly a _rule_. It is also called a _rule_, to distinguish it from _advice_ or _counsel_, which we are at liberty to follow or not, as we see proper; and to judge upon the reasonableness or unreasonableness of the thing advised. Whereas our obedience to the _law_ depends not upon _our approbation_, but upon the _maker's will_. Counsel is only matter of persuasion, law is matter of injunction; counsel acts only upon the willing, law upon the unwilling also.

IT is also called a _rule_, to distinguish it from a _compact_ or _agreement_; for a compact is a promise proceeding _from_ us, law is a command directed _to_ us. The language of a compact is, "I will, or will not, do this;" that of a law is, "thou shalt, or shalt not, do it." It is true there is an obligation which a compact carries with it, equal in point of conscience to that of a law; but then the original of the obligation is different. In compacts, we ourselves determine and promise what shall be done, before we are obliged to do it; in laws, we are obliged to act, without ourselves determining or promising any thing at all. Upon these accounts law is defined to be "_a rule_."

MUNIc.i.p.aL law is also "a rule _of civil conduct_." This distinguishes munic.i.p.al law from the natural, or revealed; the former of which is the rule of _moral_ conduct, and the latter not only the rule of moral conduct, but also the rule of faith. These regard man as a creature, and point out his duty to G.o.d, to himself, and to his neighbour, considered in the light of an individual. But munic.i.p.al or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties, which he has engaged in by enjoying the benefits of the common union; and which amount to no more, than that he do contribute, on his part, to the subsistence and peace of the society.

IT is likewise "a rule _prescribed_." Because a bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never be properly a law. It is requisite that this resolution be notified to the people who are to obey it. But the manner in which this notification is to be made, is matter of very great indifference. It may be notified by universal tradition and long practice, which supposes a previous publication, and is the case of the common law of England. It may be notified, _viva voce_, by officers appointed for that purpose, as is done with regard to proclamations, and such acts of parliament as are appointed to be publicly read in churches and other a.s.semblies. It may lastly be notified by writing, printing, or the like; which is the general course taken with all our acts of parliament. Yet, whatever way is made use of, it is inc.u.mbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (according to Dio Ca.s.sius) wrote his laws in a very small character, and hung them up upon high pillars, the more effectually to ensnare the people.

There is still a more unreasonable method than this, which is called making of laws _ex post facto_; when _after_ an action is committed, the legislator then for the first time declares it to have been a crime, and inflicts a punishment upon the person who has committed it; here it is impossible that the party could foresee that an action, innocent when it was done, should be afterwards converted to guilt by a subsequent law; he had therefore no cause to abstain from it; and all punishment for not abstaining must of consequence be cruel and unjust[e]. All laws should be therefore made to commence _in futuro_, and be notified before their commencement; which is implied in the term "_prescribed_." But when this rule is in the usual manner notified, or prescribed, it is then the subject's business to be thoroughly acquainted therewith; for if ignorance, of what he _might_ know, were admitted as a legitimate excuse, the laws would be of no effect, but might always be eluded with impunity.

[Footnote e: Such laws among the Romans were denominated _privilegia_, or private laws, of which Cicero _de leg._ 3. 19. and in his oration _pro domo_, 17. thus speaks; "_Vetant leges sacratae, vetant duodecim tabulae, leges privatis hominibus irrogari; id enim est privilegium.

Nemo unquam tulit, nihil est crudelius, nihil perniciosius, nihil quod minus haec civitas ferre possit_."]

BUT farther: munic.i.p.al law is "a rule of civil conduct prescribed _by the supreme power in a state_." For legislature, as was before observed, is the greatest act of superiority that can be exercised by one being over another. Wherefore it is requisite to the very essence of a law, that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other.

THIS will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

THE only true and natural foundations of society are the wants and the fears of individuals. Not that we can believe, with some theoretical writers, that there ever was a time when there was no such thing as society; and that, from the impulse of reason, and through a sense of their wants and weaknesses, individuals met together in a large plain, entered into an original contract, and chose the tallest man present to be their governor. This notion, of an actually existing unconnected state of nature, is too wild to be seriously admitted; and besides it is plainly contradictory to the revealed accounts of the primitive origin of mankind, and their preservation two thousand years afterwards; both which were effected by the means of single families.

These formed the first society, among themselves; which every day extended it's limits, and when it grew too large to subsist with convenience in that pastoral state, wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more. Afterwards, as agriculture increased, which employs and can maintain a much greater number of hands, migrations became less frequent; and various tribes, which had formerly separated, re-united again; sometimes by compulsion and conquest, sometimes by accident, and sometimes perhaps by compact. But though society had not it's formal beginning from any convention of individuals, actuated by their wants and their fears; yet it is the _sense_ of their weakness and imperfection that _keeps_ mankind together; that demonstrates the necessity of this union; and that therefore is the solid and natural foundation, as well as the cement, of society. And this is what we mean by the original contract of society; which, though perhaps in no instance it has ever been formally expressed at the first inst.i.tution of a state, yet in nature and reason must always be understood and implied, in the very act of a.s.sociating together: namely, that the whole should protect all it's parts, and that 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 was impossible that protection could be certainly extended to any.

FOR when society is once formed, government results of course, as necessary to preserve and to keep that society in order. Unless some superior were const.i.tuted, whose commands and decisions all the 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 of society are naturally equal, it may be asked, in whose hands are the reins of government to be entrusted? To this the general answer is easy; but the application of it to particular cases has occasioned one half 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 are among the attributes of him who is emphatically stiled the supreme being; the three grand requisites, I mean, 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 this knowlege and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be found in every well const.i.tuted 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. It is not my business or intention to enter into any of them. 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, in which the _jura summi 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 aggregate a.s.sembly consisting of all the members of a community, which is called a democracy; the second, when it is lodged in a council, composed of select members, and then it is stiled an aristocracy; the last, when it is entrusted in the hands of a single person, and then 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, is meant the making of 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: and all the other powers of the state must obey the legislative power in the execution of their several functions, or else the const.i.tution is at an end.

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 either of the other qualities of government. Popular a.s.semblies 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; 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, all the sinews of government being knit together, and united in the hand of the prince; but then there is imminent danger of his employing that strength to improvident or oppressive purposes.

THUS these three species of government have, all of them, their several perfections and imperfections. Democracies are usually the best calculated to direct the end of a law; aristocracies to invent the means by which that end shall be obtained; and monarchies to carry those means into execution. And the antients, as was observed, had in general no idea of any other permanent form of government but these three; for though Cicero[f] declares himself of opinion, "_esse optime const.i.tutam rempublicam, quae ex tribus generibus illis, regali, optimo, et populari, sit modice 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 that, if effected, could never be lasting or secure[g].

[Footnote f: In his fragments _de rep._ _l._ 2.]

[Footnote g: "_Cunctas nationes et urbes populus, aut primores, aut singuli regunt: delecta ex his, et const.i.tuta reipublicae forma laudari facilius quam evenire, vel, si evenit, haud diuturna esse potest._" _Ann._ _l._ 4.]

BUT happily for us of this island, the British const.i.tution has long remained, and I trust will long continue, a standing exception to the truth of this observation. 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 entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords spiritual and temporal, which is an aristocratical a.s.sembly of persons selected for their piety, 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 every thing; there can no inconvenience be attempted by either of the three branches, but will 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 const.i.tution; 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 must be exposed to the inconveniences of either absolute monarchy, aristocracy, or democracy; and so want two of the three princ.i.p.al ingredients of good polity, either virtue, wisdom, or 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 always have the good of the people in view: if lodged in the king and commons, we should want that circ.u.mspection 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 const.i.tutional government of this island is so admirably tempered and compounded, that nothing can endanger or hurt it, but destroying the equilibrium of power between 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 const.i.tution. The legislature would be changed from that, which was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to Mr Locke[h] (who perhaps carries his theory too far) at once an entire dissolution of the bands of government; and the people would be reduced to a state of anarchy, with liberty to const.i.tute to themselves a new legislative power.