William Blackstone, Commentaries on the Laws of England, Book I « Of the Rights of Persons », 1765, Introduction, section II « Of the Nature of Law in General », extraits.
William Blackstone, Commentaries on the Laws of England, Book I « Of the Rights of Persons », 1765, Introduction, section II « Of the Nature of Law in General », extraits.
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 constituted, 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 sound, the perfection of which are among the attributes of him who is emphatically stilled 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 endeavor always to pursue that real interest; and strength, or power, to carry this knowledge and intention into action. These are the natural foundations of sovereignty, and these are the requisites that ought to be sound 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. It is not my business or intention to enter into any of them.However they began, or by what right forever 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 sounders 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 assembly 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 stilled 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, ail others must conform to, and he 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 constitution 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 sound, than 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 have always a degree of patriotism or public spirit. In aristocracies there is more wisdom to be sound, than in the other frames of government; being composed, or intended to be composed, of the most experienced citizens; but there is less honestly 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 band 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 bell: 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 ancients, as was observed, had in general no idea of any other permanent form of government but these three; for though Cicero declares himself of opinion, "esse optime conflitutam rem publicam, quae ex tribus generibus illis, regali, optimo, et populari, fit modice confus ;" 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, is effected, could never be lasting or secure.
But happily for us of this island, the British constitution bas 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 sound 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 aristocratically assembly of persons selected for their piety, their birth, their wisdom, their valor, or their property; and, thirdly, the house of commons, freely chosen by the people from among themselves, which makes it " 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 two; each 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 constitution; and lodged as beneficially as is possible for society For in no other i11ape could we be so certain of finding the three great qualities of government to well and Jo 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 to .want two of the three principal 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: is lodged in the king and commons, we should want that circumspection and mediatory caution, which the wisdom of the peers is to afford: is 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 (is 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 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 was originally set up by the general consent and fundamental act of the society; and such a change, however effected, is according to Mr. Lock (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 constitute to themselves a new legislative power.
Having thus cursorily considered the three usual species of government, and our own singular constitution, selected and corn-pounded from them all, I proceed to observe, that, as the power of making laws constitutes the 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 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 entrusted: and this will of that one man, or assemblage of men, is in different states, according to their different constitutions, understood to be law.