33.In the heat of debate,some,perhaps,would be for saying of this management that it was transferring at once the supreme authority from the legislative power to the judicial.But this would be going too far on the other side.There is a wide difference between a positive and a negative part in legislation.There is a wide difference again between a negative upon reasons given,and a negative without any.The power of repealing a law even for reasons given is a great power:too great indeed for Judges:but still very distinguishable from,and much inferior to that of making one.(90)34.Let us now go back a little.In denying the existence of any assignable bounds to the supreme power,I added,(91)`unless where limited by express convention':for this exception I could not but subjoin.Our Author indeed,in that passage in which,short as it is,he is the most explicit,leaves,we may observe,no room for it.
`However they began',says he (speaking of the several forms of government)`however they began,and by what right soever they subsist,there is and must be in ALL of them an authority that is absolute.'..To say this,however,of all governments without exception;to say that no assemblage of men can subsist in a state of government,without being subject to some one body whose authority stands unlimited so much as by convention;to say,in short,that not even by convention can any limitation be made to the power of that body in a state which in other respects is supreme,would be saying,I take it,rather too much:it would be saying that there is no such thing as government in the German Empire;nor in the Dutch Provinces;nor in the Swiss Cantons;nor was of old in the Achaean league.
35.In this mode of limitation I see not what there is that need surprize us.By what is it that any degree of power (meaning political power)is established?It is neither more nor less,as we have already had occasion to observe,(92)than a habit of,and disposition to obedience:habit,speaking with respect to past acts;disposition,with respect to future.This disposition it is as easy,or I am much mistaken,to conceive as being absent with regard to one sort of acts;as present with regard to another.For a body then,which is in other respects supreme,to be conceived as being with respect to a certain sort of acts,limited,all that is necessary is,that this sort of acts be in its description distinguishable from every other.
36.By means of a convention then we are furnished with that common signal which,in other cases,we despaired of finding.(93)A certain act is in the instrument of convention specified,with respect to which the government is therein precluded from issuing a law to a certain effect:whether to the effect of commanding the act,of permitting it,or of forbidding it.A law is issued to that effect notwithstanding.The issuing then of such a law (the sense of it,and likewise the sense of that part of the convention which provides against it being supposed clear)is a fact notorious and visible to all:in the issuing then of such a law we have a fact which is capable of being taken for that common signal we have been speaking of.These bounds the supreme body in question has marked out to its authority:of such a demarcation then what is the effect?either none at all,or this:that the disposition to obedience confines itself within these bounds.Beyond them the disposition is stopped from extending:
beyond them the subject is no more prepared to obey the governing body of his own state,than that of any other.What difficulty,I say,there should be in conceiving a state of things to subsist in which the supreme authority is thus limited,what greater difficulty in conceiving it with this limitation,than without any,I cannot see.The two states are,Imust confess,to me alike conceivable:whether alike expedient,alike conducive to the happiness of the people,is another question.
37.God forbid,that from any thing here said it should be concluded that in any society any convention is or can be made,which shall have the effect of setting up an insuperable bar to that which the parties affected shall deem a reformation:God forbid that any disease in the constitution of a state should be without its remedy.Such might by some be thought to be the case,where that supreme body which in such a convention,was one of the contracting parties,having incorporated itself with that which was the other,no longer subsists to give any new modification to the engagement.
