independent of public interest, it wou'd never have been regarded, without a positive law; and 'twou'd have been impossible, that so many positive laws of different nations cou'd ever have concur'd precisely in the same views and intentions.
This leads us to consider the fifth source of authority, viz. positive laws; when the legislature establishes a certain form of government and succession of princes. At first sight it may be thought, that this must resolve into some of the preceding titles of authority. The legislative power, whence the positive law is deriv'd, must either be establish'd by original contract, long possession, present possession, conquest, or succession; and consequently the positive law must derive its force from some of those principles. But here 'tis remarkable, that tho' a positive law can only derive its force from these principles, yet it acquires not all the force of the principle from whence it is deriv'd, but loses considerably in the transition; as it is natural to imagine. For instance; a government is establish'd for many centuries on a certain system of laws, forms, and methods of succession. The legislative power, establish'd by this long succession, changes all on a sudden the whole system of government, and introduces a new constitution in its stead. I believe few of the subjects will think themselves bound to comply with this alteration, unless it have an evident tendency to the public good: But will think themselves still at liberty to return to the antient government. Hence the notion of fundamental laws; which are suppos'd to be inalterable by the will of the sovereign: And of this nature the Salic law is understood to be in France. How far these fundamental laws extend is not determin'd in any government; nor is it possible it ever shou'd. There is such an insensible gradation from the most material laws to the most trivial, and from the most antient laws to the most modern, that 'twill be impossible to set bounds to the legislative power, and determine how far it may innovate in the principles of government.
