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Society can declare and interpret, but cannot enact. -- Its authority only executive.{166} Having thus far investigated the nature of political functions, it seems necessary that some explanation should be given in this place upon the subject of legislation. Who is it that has the authority to make laws? What are the characteristics by which that man or body of men is to be known, in whom the faculty is vested of legislating for the rest.
To these questions the answer is exceedingly simple: Legislation, as it has been usually understood, is not an affair of human competence. Reason is the only legislator, and her decrees are irrevocable and uniform. 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 {167} state every man will be his own legislator1.' This is not true, setting apart the functions of the community, 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 written2.'
The same distinction is to be made upon the subject of authority. All political power 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 it appears 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 great line of justice, than its authority is at an end, it stands upon a level with the obscurest individual, and every man is bound to resist its decisions.
2. Sterne's Sermons. -- 'On a Good Conscience.'