HAVING thus far investigated the nature of political functions, it seems necessary that some explanation should be given upon the subject of legislation. "Who is it that has authority to make laws? What are the characteristics of that man or body of men in whom the tremendous faculty is vested of prescribing to the rest of the community what they are to perform, and what to avoid?"
The answer to these questions is exceedingly simple: Legislation, as it has been usually understood, is not an affair of human competence. Immutable reason is the true legislator, and her decrees it behoves us to investigate. The functions of society extend, not to the making, but the interpreting of law; it cannot decree, it can only declare that which the nature of things has already decreed, and the propriety of which irresistibly flows from the circumstances of the case.
Montesquieu says that "in a free state, every man will be his own legislator."1 This is not true, in matters the most purely individual, unless in the limited sense already explained. It is the office of conscience to determine, "not like an Asiatic cadi, according to the ebbs and flows of his own passions, but like a British judge, who makes no new law, but faithfully declares that law which he finds already written."2 The same distinction is to be made upon the subject of political authority. All government is, strictly speaking, executive. It has appeared to be necessary, with respect to men as we at present find them, that force should sometimes be employed in repressing injustice; and for the same reasons that this force should, as far as possible, be vested in the community. To the public support of justice therefore the authority of the community extends. But no sooner does it wander in the smallest degree from the line of justice than its proper authority is at an end; it may be submitted to by its subjects from necessity; from necessity it may be exercised, as an individual complies with his ill-informed conscience in default of an enlightened one; but it ought never to confounded with the lessons of real duty, or the decisions of impartial truth.
"Dans état libre, tout homme qui est censé avoir une ame libre, doit étre gouverné par lui-meme." Esprit des lois
; Liv. XI, Ch. vi.
Sterne's Sermons - Of a Good Conscience