Second Treatise of Government
Chapter 7
John Locke
1690 |
 
 
|
|
Sect. 77. GOD having made man such a creature, that in his
own judgment, it was not good for him to be alone, put him under strong obligations of
necessity, convenience, and inclination to drive him into society, as well as
fitted him with understanding and language to continue and enjoy it. The first society
was between man and wife, which gave beginning to that between parents and children; to
which, in time, that between master and servant came to be added: and though all these
might, and commonly did meet together, and make up but one family, wherein the master or
mistress of it had some sort of rule proper to a family; each of these, or all together,
came short of political society, as we shall see, if we consider the different
ends, ties, and bounds of each of these.
Sect. 78. Conjugal society is made by a voluntary
compact between man and woman; and tho' it consist chiefly in such a communion and right
in one another's bodies as is necessary to its chief end, procreation; yet it draws with
it mutual support and assistance, and a communion of interests too, as necessary not only
to unite their care and affection, but also necessary to their common off-spring, who have
a right to be nourished, and maintained by them, till they are able to provide for
themselves.
Sect. 79. For the end of conjunction between male and
female, being not barely procreation, but the continuation of the species; this
conjunction betwixt male and female ought to last, even after procreation, so long as is
necessary to the nourishment and support of the young ones, who are to be sustained even
after procreation, so long as is necessary to the nourishment and support of the young
ones, who are to be sustained by those that got them, till they are able to shift and
provide for themselves. This rule, which the infinite wise maker hath set to the works of
his hands, we find the inferior creatures steadily obey. In those viviparous animals which
feed on grass, the conjunction between male and female lasts no longer than the very act
of copulation; because the teat of the dam being sufficient to nourish the young, till it
be able to feed on grass, the male only begets, but concerns not himself for the female or
young, to whose sustenance he can contribute nothing. But in beasts of prey the conjunction
lasts longer: because the dam not being able well to subsist herself, and nourish her
numerous off-spring by her own prey alone, a more laborious, as well as more dangerous way
of living, than by feeding on grass, the assistance of the male is necessary to the
maintenance of their common family, which cannot subsist till they are able to prey for
themselves, but by the joint care of male and female. The same is to be observed in all
birds, (except some domestic ones, where plenty of food excuses the cock from feeding, and
taking care of the young brood) whose young needing food in the nest, the cock and hen
continue mates, till the young are able to use their wing, and provide for themselves.
Sect. 80. And herein I think lies the chief, if not the
only reason, why the male and female in mankind are tied to a longer conjunction than
other creatures, viz. because the female is capable of conceiving, and de facto
is commonly with child again, and brings forth too a new birth, long before the former is
out of a dependency for support on his parents help, and able to shift for himself, and
has all the assistance is due to him from his parents: whereby the father, who is bound to
take care for those he hath begot, is under an obligation to continue in conjugal society
with the same woman longer than other creatures, whose young being able to subsist of
themselves, before the time of procreation returns again, the conjugal bond dissolves of
itself, and they are at liberty, till Hymen at his usual anniversary season summons
them again to chuse new mates. Wherein one cannot but admire the wisdom of the great
Creator, who having given to man foresight, and an ability to lay up for the future, as
well as to supply the present necessity, hath made it necessary, that society of man
and wife should be more lasting, than of male and female amongst other creatures; that
so their industry might be encouraged, and their interest better united, to make provision
and lay up goods for their common issue, which uncertain mixture, or easy and frequent
solutions of conjugal society would mightily disturb.
Sect. 81. But tho' these are ties upon mankind,
which make the conjugal bonds more firm and lasting in man, than the other species
of animals; yet it would give one reason to enquire, why this compact, where procreation
and education are secured, and inheritance taken care for, may not be made determinable,
either by consent, or at a certain time, or upon certain conditions, as well as any other
voluntary compacts, there being no necessity in the nature of the thing, nor to the ends
of it, that it should always be for life; I mean, to such as are under no restraint of any
positive law, which ordains all such contracts to be perpetual.
Sect. 82. But the husband and wife, though they have but
one common concern, yet having different understandings, will unavoidably sometimes have
different wills too; it therefore being necessary that the last determination, i.e.
the rule, should be placed somewhere; it naturally falls to the man's share, as the abler
and the stronger. But this reaching but to the things of their common interest and
property, leaves the wife in the full and free possession of what by contract is her
peculiar right, and gives the husband no more power over her life than she has over his;
the power of the husband being so far from that of an absolute monarch, that the wife
has in many cases a liberty to separate from him, where natural right, or their
contract allows it; whether that contract be made by themselves in the state of nature, or
by the customs or laws of the country they live in; and the children upon such separation
fall to the father or mother's lot, as such contract does determine.
Sect. 83. For all the ends of marriage being to be
obtained under politic government, as well as in the state of nature, the civil magistrate
cloth not abridge the right or power of either naturally necessary to those ends, viz.
procreation and mutual support and assistance whilst they are together; but only decides
any controversy that may arise between man and wife about them. If it were otherwise, and
that absolute sovereignty and power of life and death naturally belonged to the
husband, and were necessary to the society between man and wife, there could be no
matrimony in any of those countries where the husband is allowed no such absolute
authority. But the ends of matrimony requiring no such power in the husband, the condition
of conjugal society put it not in him, it being not at all necessary to that state.
Conjugal society could subsist and attain its ends without it; nay, community of
goods, and the power over them, mutual assistance and maintenance, and other things
belonging to conjugal society, might be varied and regulated by that contract which
unites man and wife in that society, as far as may consist with procreation and the
bringing up of children till they could shift for themselves; nothing being necessary to
any society, that is not necessary to the ends for which it is made.
Sect. 84. The society betwixt parents and children,
and the distinct rights and powers belonging respectively to them, I have treated of so
largely, in the foregoing chapter, that I shall not here need to say any thing of it. And
I think it is plain, that it is far different from a politic society.
Sect. 85. Master and servant are names as old as
history, but given to those of far different condition; for a freeman makes himself a
servant to another, by selling him, for a certain time, the service he undertakes to do,
in exchange for wages he is to receive: and though this commonly puts him into the family
of his master, and under the ordinary discipline thereof; yet it gives the master but a
temporary power over him, and no greater than what is contained in the contract
between them. But there is another sort of servants, which by a peculiar name we call slaves,
who being captives taken in a just war, are by the right of nature subjected to the
absolute dominion and arbitrary power of their masters. These men having, as I say,
forfeited their lives, and with it their liberties, and lost their estates; and being in
the state of slavery, not capable of any property, cannot in that state be
considered as any part of civil society; the chief end whereof is the preservation
of property.
Sect. 86. Let us therefore consider a master of a
family with all these subordinate relations of wife, children, servants, and slaves,
united under the domestic rule of a family; which, what resemblance soever it may have in
its order, offices, and number too, with a little common-wealth, yet is very far from it,
both in its constitution, power and end: or if it must be thought a monarchy, and the paterfamilias
the absolute monarch in it, absolute monarchy will have but a very shattered and short
power, when it is plain, by what has been said before, that the master of the family
has a very distinct and differently limited power, both as to time and extent, over
those several persons that are in it; for excepting the slave (and the family is as much a
family, and his power as paterfamilias as great, whether there be any slaves in his
family or no) he has no legislative power of life and death over any of them, and none too
but what a mistress of a family may have as well as he. And he certainly can have
no absolute power over the whole family, who has but a very limited one over every
individual in it. But how a family, or any other society of men, differ from that which is
properly political society, we shall best see, by considering wherein political
society itself consists.
Sect. 87. Man being born, as has been proved, with a title
to perfect freedom, and an uncontrouled enjoyment of all the rights and privileges of the
law of nature, equally with any other man, or number of men in the world, hath by nature a
power, not only to preserve his property, that is, his life, liberty and estate, against
the injuries and attempts of other men; but to judge of, and punish the breaches of that
law in others, as he is persuaded the offence deserves, even with death itself, in crimes
where the heinousness of the fact, in his opinion, requires it. But because no political
society can be, nor subsist, without having in itself the power to preserve the
property, and in order thereunto, punish the offences of all those of that society; there,
and there only is political society, where every one of the members hath quitted
this natural power, resigned it up into the hands of the community in all cases that
exclude him not from appealing for protection to the law established by it. And thus all
private judgment of every particular member being excluded, the community comes to be
umpire, by settled standing rules, indifferent, and the same to all parties; and by men
having authority from the community, for the execution of those rules, decides all the
differences that may happen between any members of that society concerning any matter of
right; and punishes those offences which any member hath committed against the society,
with such penalties as the law has established: whereby it is easy to discern, who are,
and who are not, in political society together. Those who are united into one body,
and have a common established law and judicature to appeal to, with authority to decide
controversies between them, and punish offenders, are in civil society one with
another: but those who have no such common appeal, I mean on earth, are still in the state
of nature, each being, where there is no other, judge for himself, and executioner; which
is, as I have before shewed it, the perfect state of nature.
Sect. 88. And thus the common-wealth comes by a power to
set down what punishment shall belong to the several transgressions which they think
worthy of it, committed amongst the members of that society, (which is the power of
making laws) as well as it has the power to punish any injury done unto any of its
members, by any one that is not of it, (which is the power of war and peace;) and
all this for the preservation of the property of all the members of that society, as far
as is possible. But though every man who has entered into civil society, and is become a
member of any commonwealth, has thereby quitted his power to punish offences, against the
law of nature, in prosecution of his own private judgment, yet with the judgment of
offences, which he has given up to the legislative in all cases, where he can appeal to
the magistrate, he has given a right to the common-wealth to employ his force, for the
execution of the judgments of the common-wealth, whenever he shall be called to it; which
indeed are his own judgments, they being made by himself, or his representative. And
herein we have the original of the legislative and executive power of
civil society, which is to judge by standing laws, how far offences are to be punished,
when committed within the common-wealth; and also to determine, by occasional judgments
founded on the present circumstances of the fact, how far injuries from without are to be
vindicated; and in both these to employ all the force of all the members, when there shall
be need.
Sect. 89. Where-ever therefore any number of men are so
united into one society, as to quit every one his executive power of the law of nature,
and to resign it to the public, there and there only is a political, or civil society.
And this is done, where-ever any number of men, in the state of nature, enter into society
to make one people, one body politic, under one supreme government; or else when any one
joins himself to, and incorporates with any government already made: for hereby he
authorizes the society, or which is all one, the legislative thereof, to make laws for
him, as the public good of the society shall require; to the execution whereof, his own
assistance (as to his own decrees) is due. And this puts men out of a state of
nature into that of a common-wealth, by setting up a judge on earth, with
authority to determine all the controversies, and redress the injuries that may happen to
any member of the commonwealth; which judge is the legislative, or magistrates appointed
by it. And where-ever there are any number of men, however associated, that have no such
decisive power to appeal to, there they are still in the state of nature.
Sect. 90. Hence it is evident, that absolute monarchy,
which by some men is counted the only government in the world, is indeed inconsistent
with civil society, and so can be no form of civil-government at all: for the end
of civil society, being to avoid, and remedy those inconveniencies of the state of
nature, which necessarily follow from every man's being judge in his own case, by setting
up a known authority, to which every one of that society may appeal upon any injury
received, or controversy that may arise, and which every one of the* society ought to
obey; where-ever any persons are, who have not such an authority to appeal to, for the
decision of any difference between them, there those persons are still in the state of
nature; and so is every absolute prince, in respect of those who are under his dominion.
(*The public power of all society is above every soul
contained in the same society; and the principal use of that power is, to give laws unto
all that are under it, which laws in such cases we must obey, unless there be reason
shewed which may necessarily inforce, that the law of reason, or of God, doth enjoin the
contrary, Hook. Eccl. Pol. l. i. sect. 16.)
Sect. 91. For he being supposed to have all, both
legislative and executive power in himself alone, there is no judge to be found, no appeal
lies open to any one, who may fairly, and indifferently, and with authority decide, and
from whose decision relief and redress may be expected of any injury or inconviency, that
may be suffered from the prince, or by his order: so that such a man, however intitled, Czar,
or Grand Signior, or how you please, is as much in the state of nature, with all
under his dominion, as he is with therest of mankind: for where-ever any two men are, who
have no standing rule, and common judge to appeal to on earth, for the determination of
controversies of right betwixt them, there they are still in the state of nature,
and under all the inconveniencies of it,* with only this woful difference to the
subject, or rather slave of an absolute prince: that whereas, in the ordinary state of
nature, he has a liberty to judge of his right, and according to the best of his power, to
maintain it; now, whenever his property is invaded by the will and order of his monarch,
he has not only no appeal, as those in society ought to have, but as if he were degraded
from the common state of rational creatures, is denied a liberty to judge of, or to defend
his right; and so is exposed to all the misery and inconveniencies, that a man can fear
from one, who being in the unrestrained state of nature, is yet corrupted with flattery,
and armed with power.
(*To take away all such mutual grievances, injuries and
wrongs, i.e. such as attend men in the state of nature, there was no way but only
by growing into composition and agreement amongst themselves, by ordaining some kind of
govemment public, and by yielding themselves subject thereunto, that unto whom they
granted authority to rule and govem, by them the peace, tranquillity and happy estate of
the rest might be procured. Men always knew that where force and injury was offered, they
might be defenders of themselves; they knew that however men may seek their own commodity,
yet if this were done with injury unto others, it was not to be suffered, but by all men,
and all good means to be withstood. Finally, they knew that no man might in reason take
upon him to determine his own right, and according to his own determination proceed in
maintenance thereof, in as much as every man is towards himself, and them whom he greatly
affects, partial; and therefore that strifes and troubles would be endless, except they
gave their common consent, all to be ordered by some, whom they should agree upon, without
which consent there would be no reason that one man should take upon him to be lord or
judge over another, Hooker's Eccl. Pol. l. i. sect. 10.)
Sect. 92. For he that thinks absolute power purifies
men's bloods, and corrects the baseness of human nature, need read but the history of
this, or any other age, to be convinced of the contrary. He that would have been insolent
and injurious in the woods of America, would not probably be much better in a
throne; where perhaps learning and religion shall be found out to justify all that he
shall do to his subjects, and the sword presently silence all those that dare question it:
for what the protection of absolute monarchy is, what kind of fathers of their
countries it makes princes to be and to what a degree of happiness and security it carries
civil society, where this sort of government is grown to perfection, he that will look
into the late relation of Ceylon, may easily see.
Sect. 93. In absolute monarchies indeed, as well as
other governments of the world, the subjects have an appeal to the law, and judges to
decide any controversies, and restrain any violence that may happen betwixt the subjects
themselves, one amongst another. This every one thinks necessary, and believes he deserves
to be thought a declared enemy to society and mankind, who should go about to take it
away. But whether this be from a true love of mankind and society, and such a charity as
we owe all one to another, there is reason to doubt: for this is no more than what every
man, who loves his own power, profit, or greatness, may and naturally must do, keep those
animals from hurting, or destroying one another, who labour and drudge only for his
pleasure and advantage; and so are taken care of, not out of any love the master has for
them, but love of himself, and the profit they bring him: for if it be asked, what
security, what fence is there, in such a state, against the violence and
oppression of this absolute ruler? the very question can scarce be borne. They are
ready to tell you, that it deserves death only to ask after safety. Betwixt subject and
subject, they will grant, there must be measures, laws and judges, for their mutual peace
and security: but as for the ruler, he ought to be absolute, and is above
all such circumstances; because he has power to do more hurt and wrong, it is right when
he does it. To ask how you may be guarded from harm, or injury, on that side where the
strongest hand is to do it, is presently the voice of faction and rebellion: as if when
men quitting the state of nature entered into society, they agreed that all of them but
one, should be under the restraint of laws, but that he should still retain all the
liberty of the state of nature, increased with power, and made licentious by impunity.
This is to think, that men are so foolish, that they take care to avoid what mischiefs may
be done them by pole-cats, or foxes; but are content, nay, think it safety,
to be devoured by lions.
Sect. 94. But whatever flatterers may talk to amuse
people's understandings, it hinders not men from feeling; and when they perceive, that any
man, in what station soever, is out of the bounds of the civil society which they are of,
and that they have no appeal on earth against any harm, they may receive from him, they
are apt to think themselves in the state of nature, in respect of him whom they find to be
so; and to take care, as soon as they can, to have that safety and security in civil
society, for which it was first instituted, and for which only they entered into it.
And therefore, though perhaps at first , (as shall be shewed more at large hereafter in
the following part of this discourse) some one good and excellent man having got a pre
-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a
kind of natural authority, that the chief rule, with arbitration of their differences, by
a tacit consent devolved into his hands, without any other caution, but the assurance they
had of his uprightness and wisdom; yet when time, giving authority, and (as some men would
persuade us) sacredness of customs, which the negligent, and unforeseeing innocence of the
first ages began, had brought in successors of another stamp, the people finding their
properties not secure under the government, as then it was, (whereas government has no
other end but the preservation of property) could never be safe nor at rest, nor think
themselves in civil society, till the legislature was placed in collective bodies of
men, call them senate, parliament, or what you please.* By which means every single person
became subject, equally with other the meanest men, to those laws, which he himself, as
part of the legislative, had established; nor could any one, by his own authority; avoid
the force of the law, when once made; nor by any pretence of superiority plead exemption,
thereby to license his own, or the miscarriages of any of his dependents.** No man in
civil society can be exempted from the laws of it: for if any man may do what he
thinks fit, and there be no appeal on earth, for redress or security against any harm he
shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no
part or member of that civil society; unless any one will say, the state of nature and
civil society are one and the same thing, which I have never yet found any one so great a
patron of anarchy as to affirm.
(*At the first, when some certain kind of regiment was
once appointed, it may be that nothing was then farther thought upon for the manner of
goveming, but all permitted unto their wisdom and discretion, which were to rule, till by
experience they found this for all parts very inconvenient, so as the thing which they had
devised for a remedy, did indeed but increase the sore, which it should have cured. They
saw, that to live by one man's will, became the cause of all men's misery. This
constrained them to come unto laws, wherein all men might see their duty beforehand, and
know the penalties of transgressing them. Hooker's Eccl. Pol. l. i. sect.
10.)
(**Civil law being the act of the whole body politic,
cloth therefore over-rule each several part of the same body. Hooker, ibid.)
The Second Treatise of Government
Chapter 8
John Locke
1690
Sect. 95. MEN being, as has been said, by nature, all
free, equal, and independent, no one can be put out of this estate, and subjected to the
political power of another, without his own consent. The only way whereby any one divests
himself of his natural liberty, and puts on the bonds of civil society, is by
agreeing with other men to join and unite into a community for their comfortable, safe,
and peaceable living one amongst another, in a secure enjoyment of their properties, and a
greater security against any, that are not of it. This any number of men may do, because
it injures not the freedom of the rest; they are left as they were in the liberty of the
state of nature. When any number of men have so consented to make one community or
government, they are thereby presently incorporated, and make one body politic,
wherein the majority have a right to act and conclude the rest.
Sect. 96. For when any number of men have, by the consent
of every individual, made a community, they have thereby made that community
one body, with a power to act as one body, which is only by the will and determination of
the majority: for that which acts any community, being only the consent of the
individuals of it, and it being necessary to that which is one body to move one way; it is
necessary the body should move that way whither the greater force carries it, which is the
consent of the majority: or else it is impossible it should act or continue one
body, one community, which the consent of every individual that united into it,
agreed that it should; and so every one is bound by that consent to be concluded by the majority.
And therefore we see, that in assemblies, impowered to act by positive laws, where no
number is set by that positive law which impowers them, the act of the majority
passes for the act of the whole, and of course determines, as having, by the law of nature
and reason, the power of the whole.
Sect. 97. And thus every man, by consenting with others to
make one body politic under one government, puts himself under an obligation, to every one
of that society, to submit to the determination of the majority, and to be
concluded by it; or else this original compact, whereby he with others incorporates
into one society, would signify nothing, and be no compact, if he be left free, and
under no other ties than he was in before in the state of nature. For what appearance
would there be of any compact? what new engagement if he were no farther tied by any
decrees of the society, than he himself thought fit, and did actually consent to? This
would be still as great a liberty, as he himself had before his compact, or any one else
in the state of nature hath, who may submit himself, and consent to any acts of it if he
thinks fit.
Sect. 98. For if the consent of the majority shall
not, in reason, be received as the act of the whole, and conclude every individual;
nothing but the consent of every individual can make any thing to be the act of the whole:
but such a consent is next to impossible ever to be had, if we consider the infirmities of
health, and avocations of business, which in a number, though much less than that of a
common-wealth, will necessarily keep many away from the public assembly. To which if we
add the variety of opinions, and contrariety of interests, which unavoidably happen in all
collections of men, the coming into society upon such terms would be only like Cato's
coming into the theatre, only to go out again. Such a constitution as this would make the
mighty Leviathan of a shorter duration, than the feeblest creatures, and not let it
outlast the day it was bom in: which cannot be supposed, till we can think, that rational
creatures should desire and constitute societies only to be dissolved: for where the majority
cannot conclude the rest, there they cannot act as one body, and consequently will be
immediately dissolved again.
Sect. 99. Whosoever therefore out of a state of nature
unite into a community, must be understood to give up all the power, necessary to
the ends for which they unite into society, to the majority of the community,
unless they expressly agreed in any number greater than the majority. And this is done by
barely agreeing to unite into one political society, which is all the compact
that is, or needs be, between the individuals, that enter into, or make up a commonwealth.
And thus that, which begins and actually constitutes any political society, is
nothing but the consent of any number of freemen capable of a majority to unite and
incorporate into such a society. And this is that, and that only, which did, or could give
beginning to any lawful government in the world.
Sect. 100. To this I find two objections made. First, That
there are no instances to be found in story, of a company of men independent, and equal
one amongst another, that met together, and in this way began and set up a government.
Secondly, It is impossible of right, that men should do so, because all men being born
under government, they are to submit to that, and are not at liberty to begin a new one.
Sect. 101. To the first there is this to answer, That it
is not at all to be wondered, that history gives us but a very little account of
men, that lived together in the state of nature. The inconveniences of that
condition, and the love and want of society, no sooner brought any number of them
together, but they presently united and incorporated, if they designed to continue
together. And if we may not suppose men ever to have been in the state of nature,
because we hear not much of them in such a state, we may as well suppose the armies of Salmanasser
or Xerxes were never children, because we hear little of them, till they were men,
and imbodied in armies. Government is every where antecedent to records, and letters
seldom come in amongst a people till a long continuation of civil society has, by other
more necessary arts, provided for their safety, ease, and plenty: and then they begin to
look after the history of their founders, and search into their original,
when they have outlived the memory of it: for it is with commonwealths as with
particular persons, they are commonly ignorant of their own births and infancies:
and if they know any thing of their original, they are beholden for it, to the
accidental records that others have kept of it. And those that we have, of the beginning
of any polities in the world, excepting that of the Jews, where God himself
immediately interposed, and which favours not at all paternal dominion, are all either
plain instances of such a beginning as I have mentioned, or at least have manifest
footsteps of it.
Sect. 102. He must shew a strange inclination to deny
evident matter of fact, when it agrees not with his hypothesis, who will not allow that
the beginning of Rome and Venice were by the uniting together of
several men free and independent one of another, amongst whom there was no natural
superiority or subjection. And if Josephus Acosta's word may be taken, he tells us,
that in many parts of America there was no government at all. There are great
and apparent conjectures, says he, that these men, speaking of those of Peru,
for a long time had neither kings nor commonwealths, but lived in troops, as they do this
day in Florida, the Cheriquanas, those of Brazil, and many other
nations, which have no certain kings, but as occasion is offered, in peace or war, they
choose their captains as they please, 1. i. c. 25. If it be said, that every man there
was born subject to his father, or the head of his family; that the subjection due from a
child to a father took not away his freedom of uniting into what political society he
thought fit, has been already proved. But be that as it will, these men, it is evident,
were actually free; and whatever superiority some politicians now would place in
any of them, they themselves claimed it not, but by consent were all equal, till by
the same consent they set rulers over themselves. So that their politic societies
all began from a voluntary union, and the mutual agreement of men freely acting in
the choice of their governors, and forms of government.
Sect. 103. And I hope those who went away from Sparta
with Palantus, mentioned by Justin, 1. iii. c. 4. will be
allowed to have been freemen independent one of another, and to have set up a
government over themselves, by their own consent. Thus I have given several examples, out
of history, of people free and in the state of nature, that being met together
incorporated and began a commonwealth. And if the want of such instances be an
argument to prove that government were not, nor could not be so begun, I
suppose the contenders for paternal empire were better let it alone, than urge it against
natural liberty: for if they can give so many instances, out of history, of governments
begun upon paternal right, I think (though at best an argument from what has been, to
what should of right be, has no great force) one might, without any great danger, yield
them the cause. But if I might advise them in the case, they would do well not to search
too much into the original of governments, as they have begun de facto, lest
they should find, at the foundation of most of them, something very little favourable to
the design they promote, and such a power as they contend for.
Sect. 104. But to conclude, reason being plain on our
side, that men are naturally free, and the examples of history shewing, that the governments
of the world, that were begun in peace, had their beginning laid on that foundation, and
were made by the consent of the people; there can be little room for doubt, either
where the right is, or what has been the opinion, or practice of mankind, about the first
erecting of governments.
Sect. 105. I will not deny, that if we look back as far as
history will direct us, towards the original of commonwealths, we shall generally
find them under the government and administration of one man. And I am also apt to
believe, that where a family was numerous enough to subsist by itself, and continued
entire together, without mixing with others, as it often happens, where there is much
land, and few people, the government commonly began in the father: for the father having,
by the law of nature, the same power with every man else to punish, as he thought fit, any
offences against that law, might thereby punish his transgressing children, even when they
were men, and out of their pupilage; and they were very likely to submit to his
punishment, and all join with him against the offender, in their turns, giving him thereby
power to execute his sentence against any transgression, and so in effect make him the
law-maker, and governor over all that remained in conjunction with his family. He was
fittest to be trusted; paternal affection secured their property and interest under his
care; and the custom of obeying him, in their childhood, made it easier to submit to him,
rather than to any other. If therefore they must have one to rule them, as government is
hardly to be avoided amongst men that live together; who so likely to be the man as he
that was their common father; unless negligence, cruelty, or any other defect of mind or
body made him unfit for it? But when either the father died, and left his next heir, for
want of age, wisdom, courage, or any other qualities, less fit for rule; or where several
families met, and consented to continue together; there, it is not to be doubted, but they
used their natural freedom, to set up him, whom they judged the ablest, and most likely,
to rule well over them. Conformable hereunto we find the people of America, who
(living out of the reach of the conquering swords, and spreading domination of the two
great empires of Peru and Mexico) enjoyed their own natural freedom, though,
caeteris paribus, they commonly prefer the heir of their deceased king; yet if they
find him any way weak, or uncapable, they pass him by, and set up the stoutest and bravest
man for their ruler.
Sect. 106. Thus, though looking back as far as records
give us any account of peopling the world, and the history of nations, we commonly find
the government to be in one hand; yet it destroys not that which I affirm, viz.
that the beginning of politic society depends upon the consent of the individuals,
to join into, and make one society; who, when they are thus incorporated, might set up
what form of government they thought fit. But this having given occasion to men to
mistake, and think, that by nature government was monarchical, and belonged to the father,
it may not be amiss here to consider, why people in the beginning generally pitched upon
this form, which though perhaps the father's pre-eminency might, in the first institution
of some commonwealths, give a rise to, and place in the beginning, the power in one hand;
yet it is plain that the reason, that continued the form of government in a
single person, was not any regard, or respect to paternal authority; since all petty
monarchies, that is, almost all monarchies, near their original, have been
commonly, at least upon occasion, elective.
Sect. 107. First then, in the beginning of things, the
father's government of the childhood of those sprung from him, having accustomed them to
the rule of one man, and taught them that where it was exercised with care and
skill, with affection and love to those under it, it was sufficient to procure and
preserve to men all the political happiness they sought for in society. It was no wonder
that they should pitch upon, and naturally run into that form of government, which from
their infancy they had been all accustomed to; and which, by experience, they had found
both easy and safe. To which, if we add, that monarchy being simple, and most
obvious to men, whom neither experience had instructed in forms of government, nor the
ambition or insolence of empire had taught to beware of the encroachments of prerogative,
or the inconveniences of absolute power, which monarchy in succession was apt to lay claim
to, and bring upon them, it was not at all strange, that they should not much trouble
themselves to think of methods of restraining any exorbitances of those to whom they had
given the authority over them, and of balancing the power of government, by placing
several parts of it in different hands. They had neither felt the oppression of tyrannical
dominion, nor did the fashion of the age, nor their possessions, or way of living, (which
afforded little matter for covetousness or ambition) give them any reason to apprehend or
provide against it; and therefore it is no wonder they put themselves into such a frame
of government, as was not only, as I said, most obvious and simple, but also best
suited to their present state and condition; which stood more in need of defence against
foreign invasions and injuries, than of multiplicity of laws. The equality of a simple
poor way of living, confining their desires within the narrow bounds of each man's small
property, made few controversies, and so no need of many laws to decide them, or variety
of officers to superintend the process, or look after the execution of justice, where
there were but few trespasses, and few offenders. Since then those, who like one another
so well as to join into society, cannot but be supposed to have some acquaintance and
friendship together, and some trust one in another; they could not but have greater
apprehensions of others, than of one another: and therefore their first care and thought
cannot but be supposed to be, how to secure themselves against foreign force. It was
natural for them to put themselves under a frame of government which might best
serve to that end, and chuse the wisest and bravest man to conduct them in their wars, and
lead them out against their enemies, and in this chiefly be their ruler.
Sect. 108. Thus we see, that the kings of the Indians
in America, which is still a pattern of the first ages in Asia and Europe,
whilst the inhabitants were too few for the country, and want of people and money gave men
no temptation to enlarge their possessions of land, or contest for wider extent of ground,
are little more than generals of their armies; and though they command absolutely
in war, yet at home and in time of peace they exercise very little dominion, and have but
a very moderate sovereignty, the resolutions of peace and war being ordinarily either in
the people, or in a council. Tho' the war itself, which admits not of plurality of
governors, naturally devolves the command into the king's sole authority.
Sect. 109. And thus in Israel itself, the chief
business of their judges, and first kings, seems to have been to be captains in war,
and leaders of their armies; which (besides what is signified by going out and in
before the people, which was, to march forth to war, and home again in the heads of
their forces) appears plainly in the story of lephtha. The Ammonites making
war upon Israel, the Gileadites in fear send to lephtha, a bastard of
their family whom they had cast off, and article with him, if he will assist them against
the Ammonites, to make him their ruler; which they do in these words, And the
people made him head and captain over them, Judg. xi, ii. which was, as it seems, all
one as to be judge. And he judged Israel, Judg. xii. 7. that is, was their captain-general
six years. So when Jotham upbraids the Shechemites with the
obligation they had to Gideon, who had been their judge and ruler, he tells
them, He fought for you, and adventured his life far, and delivered you out of the
hands of Midian, Judg. ix. 17. Nothing mentioned of him but what he did as a general:
and indeed that is all is found in his history, or in any of the rest of the judges. And Abimelech
particularly is called king, though at most he was but their general. And
when, being weary of the ill conduct of Samuel's sons, the children of Israel
desired a king, like all the nations to judge them, and to go out before them, and to
fight their battles, I. Sam viii. 20. God granting their desire, says to Samuel, I
will send thee a man, and thou shalt anoint him to be captain over my people Israel, that
he may save my people out of the hands of the Philistines, ix. 16. As if the only business
of a king had been to lead out their armies, and fight in their defence; and
accordingly at his inauguration pouring a vial of oil upon him, declares to Saul,
that the Lord had anointed him to be captain over his inheritance, x. 1. And
therefore those, who after Saul's being solemnly chosen and saluted king by
the tribes at Mispah, were unwilling to have him their king, made no other
objection but this, How shall this man save us? v. 27. as if they should have said,
this man is unfit to be our king, not having skill and conduct enough in war, to be
able to defend us. And when God resolved to transfer the government to David, it is in
these words, But now thy kingdom shall not continue: the Lord hath sought him a man
after his own heart, and the Lord hath commanded him to be captain over his people,
xiii. 14. As if the whole kingly authority were nothing else but to be their general:
and therefore the tribes who had stuck to Saul's family, and opposed David's
reign, when they came to Hebron with terms of submission to him, they tell him,
amongst other arguments they had to submit to him as to their king, that he was in effect
their king in Saul's time, and therefore they had no reason but to receive
him as their king now. Also (say they) in time past, when Saul was king over us,
thou wast he that reddest out and broughtest in Israel, and the Lord said unto thee, Thou
shalt feed my people Israel, and thou shalt be a captain over Israel.
Sect. 110. Thus, whether a family by degrees grew
up into a common-wealth, and the fatherly authority being continued on to the elder
son, every one in his turn growing up under it, tacitly submitted to it, and the easiness
and equality of it not offending any one, every one acquiesced, till time seemed to have
confirmed it, and settled a right of succession by prescription: or whether several
families, or the descendants of several families, whom chance, neighbourhood, or business
brought together, uniting into society, the need of a general, whose conduct might defend
them against their enemies in war, and the great confidence the innocence and sincerity of
that poor but virtuous age, (such as are almost all those which begin governments, that
ever come to last in the world) gave men one of another, made the first beginners of
commonwealths generally put the rule into one man's hand, without any other express
limitation or restraint, but what the nature of the thing, and the end of government
required: which ever of those it was that at first put the rule into the hands of a single
person, certain it is no body was intrusted with it but for the public good and safety,
and to those ends, in the infancies of commonwealths, those who had it commonly used it.
And unless they had done so, young societies could not have subsisted; without such
nursing fathers tender and careful of the public weal, all governments would have sunk
under the weakness and infirmities of their infancy, and the prince and the people had
soon perished together.
Sect. 111. But though the golden age (before vain
ambition, and amor sceleratus habendi, evil concupiscence, had corrupted men's
minds into a mistake of true power and honour) had more virtue, and consequently better
governors, as well as less vicious subjects, and there was then no stretching
prerogative on the one side, to oppress the people; nor consequently on the
other, any dispute about privilege, to lessen or restrain the power of the
magistrate,* and so no contest betwixt rulers and people about governors or goveernment:
yet, when ambition and luxury in future ages would retain and increase the power, without
doing the business for which it was given; and aided by flattery, taught princes to have
distinct and separate interests from their people, men found it necessary to examine more
carefully the original and rights of government; and to find out ways to restrain
the exorbitances, and prevent the abuses of that power, which they having
intrusted in another's hands only for their own good, they found was made use of to hurt
them.
(*At first, when some certain kind of regiment was once
approved, it may be nothing was then farther thought upon for the manner of governing, but
all permitted unto their wisdom and discretion which were to rule, till by experience they
found this for all parts very inconvenient, so as the thing which they had devised for a
remedy, did indeed but increase the sore which it should have cured. They saw, that to
live by one man's will, became the cause of all men's misery. This constrained them to
come unto laws wherein all men might see their duty before hand, and know the penalties of
transgressing them. Hooker's Eccl. Pol. l. i. sect. 10.)
Sect. 112. Thus we may see how probable it is, that people
that were naturally free, and by their own consent either submitted to the government of
their father, or united together out of different families to make a government, should
generally put the rule into one man's hands, and chuse to be under the conduct of a
single person, without so much as by express conditions limiting or regulating his
power, which they thought safe enough in his honesty and prudence; though they never
dreamed of monarchy being Jure Divino, which we never heard of among mankind, till
it was revealed to us by the divinity of this last age; nor ever allowed paternal power to
have a right to dominion, or to be the foundation of all government. And thus much may
suffice to shew, that as far as we have any light from history, we have reason to
conclude, that all peaceful beginnings of government have been laid in the
consent of the people. I say peaceful, because I shall have occasion in another
place to speak of conquest, which some esteem a way of beginning of governments. The
other objection I find urged against the beginning of polities, in the way I have
mentioned, is this, viz.
Sect. 113. That all men being born under government,
some or other, it is impossible any of them should ever be free, and at liberty to unite
together, and begin a new one, or ever be able to erect a lawful government. If this
argument be good; I ask, how came so many lawful monarchies into the world? for if any
body, upon this supposition, can shew me any one man in any age of the world free
to begin a lawful monarchy, I will be bound to shew him ten other free men at
liberty, at the same time to unite and begin a new government under a regal, or any other
form; it being demonstration, that if any one, born under the dominion of another,
may be so free as to have a right to command others in a new and distinct empire,
every one that is born under the dominion of another may be so free too, and
may become a ruler, or subject, of a distinct separate government. And so by this their
own principle, either all men, however born, are free, or else there is but
one lawful prince, one lawful government in the world. And then they have nothing to do,
but barely to shew us which that is; which when they have done, I doubt not but all
mankind will easily agree to pay obedience to him.
Sect. 114. Though it be a sufficient answer to their
objection, to shew that it involves them in the same difficulties that it doth those they
use it against; yet I shall endeavour to discover the weakness of this argument a little
farther. All men, say they, are born under government, and therefore they cannot
be at liberty to begin a new one. Every one is born a subject to his father, or his
prince, and is therefore under the perpetual tie of subjection and allegiance. It is
plain mankind never owned nor considered any such natural subjection that they were
born in, to one or to the other that tied them, without their own consents, to a
subjection to them and their heirs.
Sect. 115. For there are no examples so frequent in
history, both sacred and profane, as those of men withdrawing themselves, and their
obedience, from the jurisdiction they were born under, and the family or community they
were bred up in, and setting up new governments in other places; from whence sprang
all that number of petty commonwealths in the beginning of ages, and which always
multiplied, as long as there was room enough, till the stronger, or more fortunate,
swallowed the weaker; and those great ones again breaking to pieces, dissolved into lesser
dominions. All which are so many testimonies against paternal sovereignty, and plainly
prove, that it was not the natural right of the father descending to his heirs, that made
governments in the beginning, since it was impossible, upon that ground, there should have
been so many little kingdoms; all must have been but only one universal monarchy, if men
had not been at liberty to separate themselves from their families, and the
government, be it what it will, that was set up in it, and go and make distinct
commonwealths and other governments, as they thought fit.
Sect. 116. This has been the practice of the world from
its first beginning to this day; nor is it now any more hindrance to the freedom of
mankind, that they are born under constituted and ancient polities, that have
established laws, and set forms of government, than if they were born in the woods,
amongst the unconfined inhabitants, that run loose in them: for those, who would persuade
us, that by being born under any government, we are naturally subjects to it, and
have no more any title or pretence to the freedom of the state of nature, have no other
reason (bating that of paternal power, which we have already answered) to produce for it,
but only, because our fathers or progenitors passed away their natural liberty, and
thereby bound up themselves and their posterity to a perpetual subjection to the
government, which they themselves submitted to. It is true, that whatever engagements or
promises any one has made for himself, he is under the obligation of them, but cannot,
by any compact whatsoever, bind his children or posterity: for his son, when
a man, being altogether as free as the father, any act of the father can no more give
away the liberty of the son, than it can of any body else: he may indeed annex such
conditions to the land, he enjoyed as a subject of any common-wealth, as may oblige his
son to be of that community, if he will enjoy those possessions which were his father's;
because that estate being his father's property, he may dispose, or settle it, as he
pleases.
Sect. 117. And this has generally given the occasion to
mistake in this matter; because commonwealths not permitting any part of their dominions
to be dismembered, nor to be enjoyed by any but those of their community, the son cannot
ordinarily enjoy the possessions of his father, but under the same terms his father did,
by becoming a member of the society; whereby he puts himself presently under the
government he finds there established, as much as any other subject of that common-wealth.
And thus the consent of freemen, born under government, which only makes them
members of it, being given separately in their turns, as each comes to be of age, and
not in a multitude together; people take no notice of it, and thinking it not done at all,
or not necessary, conclude they are naturally subjects as they are men.
Sect. 118. But, it is plain, governments themselves
understand it otherwise; they claim no power over the son, because of that they had
over the father; nor look on children as being their subjects, by their fathers being
so. If a subject of England have a child, by an English woman in France,
whose subject is he? Not the king of England's; for he must have leave to be
admitted to the privileges of it: nor the king of France's; for how then has his
father a liberty to bring him away, and breed him as he pleases? and who ever was judged
as a traytor or deserter, if he left, or warred against a country, for being
barely born in it of parents that were aliens there? It is plain then, by the practice of
governments themselves, as well as by the law of right reason, that a child is born a
subject of no country or government. He is under his father's tuition and authority,
till he comes to age of discretion; and then he is a freeman, at liberty what government
he will put himself under, what body politic he will unite himself to: for if an Englishman's
son, born in France, be at liberty, and may do so, it is evident there is no tie
upon him by his father's being a subject of this kingdom; nor is he bound up by any
compact of his ancestors. And why then hath not his son, by the same reason, the same
liberty, though he be born any where else? Since the power that a father hath naturally
over his children, is the same, where-ever they be born, and the ties of natural
obligations, are not bounded by the positive limits of kingdoms and commonwealths.
Sect. 119. Every man being, as has been shewed, naturally
free, and nothing being able to put him into subjection to any earthly power, but only
his own consent; it is to be considered, what shall be understood to be a sufficient
declaration of a man's consent, to make him subject to the laws of any
government. There is a common distinction of an express and a tacit consent, which will
concern our present case. No body doubts but an express consent, of any man
entering into any society, makes him a perfect member of that society, a subject of that
government. The difficulty is, what ought to be looked upon as a tacit consent, and
how far it binds, i.e. how far any one shall be looked on to have consented, and
thereby submitted to any government, where he has made no expressions of it at all. And to
this I say, that every man, that hath any possessions, or enjoyment, of any part of the
dominions of any government, cloth thereby give his tacit consent, and is as far
forth obliged to obedience to the laws of that government, during such enjoyment, as any
one under it; whether this his possession be of land, to him and his heirs for ever, or a
lodging only for a week; or whether it be barely travelling freely on the highway; and in
effect, it reaches as far as the very being of any one within the territories of that
government.
Sect. 120. To understand this the better, it is fit to
consider, that every man, when he at first incorporates himself into any commonwealth, he,
by his uniting himself thereunto, annexed also, and submits to the community, those
possessions, which he has, or shall acquire, that do not already belong to any other
government: for it would be a direct contradiction, for any one to enter into society with
others for the securing and regulating of property; and yet to suppose his land, whose
property is to be regulated by the laws of the society, should be exempt from the
jurisdiction of that government, to which he himself, the proprietor of the land, is a
subject. By the same act therefore, whereby any one unites his person, which was before
free, to any common-wealth, by the same he unites his possessions, which were before free,
to it also; and they become, both of them, person and possession, subject to the
government and dominion of that common-wealth, as long as it hath a being. VVhoever
therefore, from thenceforth, by inheritance, purchase, permission, or otherways, enjoys
any part of the land, so annexed to, and under the government of that
common-wealth, must take it with the condition it is under; that is, of submitting
to the government of the common-wealth, under whose jurisdiction it is, as far forth
as any subject of it.
Sect. 121. But since the government has a direct
jurisdiction only over the land, and reaches the possessor of it, (before he has actually
incorporated himself in the society) only as he dwells upon, and enjoys that; the
obligation any one is under, by virtue of such enjoyment, to submit to the
government, begins and ends with the enjoyment; so that whenever the owner, who has
given nothing but such a tacit consent to the government, will, by donation, sale,
or otherwise, quit the said possession, he is at liberty to go and incorporate himself
into any other common-wealth; or to agree with others to begin a new one, in vacuis
locis, in any part of the world, they can find free and unpossessed: whereas he, that
has once, by actual agreement, and any express declaration, given his consent
to be of any common- wealth, is perpetually and indispensably obliged to be, and remain
unalterably a subject to it, and can never be again in the liberty of the state of nature;
unless, by any calamity, the government he was under comes to be dissolved; or else by
some public act cuts him off from being any longer a member of it.
Sect. 122. But submitting to the laws of any country,
living quietly, and enjoying privileges and protection under them, makes not a man a
member of that society: this is only a local protection and homage due to and from all
those, who, not being in a state of war, come within the territories belonging to any
government, to all parts whereof the force of its laws extends. But this no more makes
a man a member of that society, a perpetual subject of that common-wealth, than it
would make a man a subject to another, in whose family he found it convenient to abide for
some time; though, whilst he continued in it, he were obliged to comply with the laws, and
submit to the government he found there. And thus we see, that foreigners, by
living all their lives under another government, and enjoying the privileges and
protection of it, though they are bound, even in conscience, to submit to its
administration, as far forth as any denison; yet do not thereby come to be subjects or
members of that common- wealth. Nothing can make any man so, but his actually entering
into it by positive engagement, and express promise and compact. This is that, which I
think, concerning the beginning of political societies, and that consent which makes
any one a member of any common-wealth.
The Second Treatise of Government
Chapter 9
John Locke
1690
Sect. 123. IF man in the state of nature be so free, as
has been said; if he be absolute lord of his own person and possessions, equal to the
greatest, and subject to no body, why will he part with his freedom? why will he give up
this empire, and subject himself to the dominion and controul of any other power? To which
it is obvious to answer, that though in the state of nature he hath such a right, yet the
enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for
all being kings as much as he, every man his equal, and the greater part no strict
observers of equity and justice, the enjoyment of the property he has in this state is
very unsafe, very unsecure. This makes him willing to quit a condition, which, however
free, is full of fears and continual dangers: and it is not without reason, that he seeks
out, and is willing to join in society with others, who are already united, or have a mind
to unite, for the mutual preservation of their lives, liberties and estates, which
I call by the general name, property.
Sect. 124. The great and chief end, therefore, of
men's uniting into commonwealths, and putting themselves under government, is the
preservation of their property. To which in the state of nature there are many things
wanting. First, There wants an established, settled, known law,
received and allowed by common consent to be the standard of right and wrong, and the
common measure to decide all controversies between them: for though the law of nature be
plain and intelligible to all rational creatures; yet men being biassed by their interest,
as well as ignorant for want of study of it, are not apt to allow of it as a law binding
to them in the application of it to their particular cases.
Sect. 125. Secondly, In the state of nature there
wants a known and indifferent judge, with authority to determine all differences
according to the established law: for every one in that state being both judge and
executioner of the law of nature, men being partial to themselves, passion and revenge is
very apt to carry them too far, and with too much heat, in their own cases; as well as
negligence, and unconcernedness, to make them too remiss in other men's.
Sect. 126. Thirdly, In the state of nature there
often wants power to back and support the sentence when right, and to give
it due execution, They who by any injustice offended, will seldom fail, where they
are able, by force to make good their injustice; such resistance many times makes the
punishment dangerous, and frequently destructive, to those who attempt it.
Sect. 127. Thus mankind, notwithstanding all the
privileges of the state of nature, being but in an ill condition, while they remain in it,
are quickly driven into society. Hence it comes to pass, that we seldom find any number of
men live any time together in this state. The inconveniencies that they are therein
exposed to, by the irregular and uncertain exercise of the power every man has of
punishing the transgressions of others, make them take sanctuary under the established
laws of government, and therein seek the preservation of their property. It is this
makes them so willingly give up every one his single power of punishing, to be exercised
by such alone, as shall be appointed to it amongst them; and by such rules as the
community, or those authorized by them to that purpose, shall agree on. And in this we
have the original right and rise of both the legislative and executive power,
as well as of the governments and societies themselves.
Sect. 128. For in the state of nature, to omit the liberty
he has of innocent delights, a man has two powers. The first is to do whatsoever he thinks
fit for the preservation of himself, and others within the permission of the law of
nature: by which law, common to them all, he and all the rest of mankind are one
community, make up one society, distinct from all other creatures. And were it not for
the corruption and vitiousness of degenerate men, there would be no need of any other; no
necessity that men should separate from this great and natural community, and by positive
agreements combine into smaller and divided associations. The other power a man has in the
state of nature, is the power to punish the crimes committed against that law. Both
these he gives up, when he joins in a private, if I may so call it, or particular politic
society, and incorporates into any common-wealth, separate from the rest of mankind.
Sect. 129. The first power, viz. of doing whatsoever he
thought for the preservation of himself, and the rest of mankind, he gives up
to be regulated by laws made by the society, so far forth as the preservation of himself,
and the rest of that society shall require; which laws of the society in many things
confine the liberty he had by the law of nature.
Sect. 130. Secondly, The power of punishing
he wholly gives up, and engages his natural force, (which he might before employ in
the execution of the law of nature, by his own single authority, as he thought fit) to
assist the executive power of the society, as the law thereof shall require: for being now
in a new state, wherein he is to enjoy many conveniencies, from the labour, assistance,
and society of others in the same community, as well as protection from its whole
strength; he is to part also with as much of his natural liberty, in providing for
himself, as the good, prosperity, and safety of the society shall require; which is not
only necessary, but just, since the other members of the society do the like.
Sect. 131. But though men, when they enter into society,
give up the equality, liberty, and executive power they had in the state of nature, into
the hands of the society, to be so far disposed of by the legislative, as the good of the
society shall require; yet it being only with an intention in every one the better to
preserve himself, his liberty and property; (for no rational creature can be supposed to
change his condition with an intention to be worse) the power of the society, or legislative
constituted by them, can never be supposed to extend farther, than the common good;
but is obliged to secure every one's property, by providing against those three defects
above mentioned, that made the state of nature so unsafe and uneasy. And so whoever has
the legislative or supreme power of any common-wealth, is bound to govern by established standing
laws, promulgated and known to the people, and not by extemporary decrees; by indifferent
and upright judges, who are to decide controversies by those laws; and to employ
the force of the community at home, only in the execution of such laws, or abroad
to prevent or redress foreign injuries, and secure the community from inroads and
invasion. And all this to be directed to no other end, but the peace, safety,
and public good of the people.
The Second Treatise of Government
Chapter 10
John Locke
1690
Sect. 132. THE majority having, as has been shewed, upon
men's first uniting into society, the whole power of the community naturally in them, may
employ all that power in making laws for the community from time to time, and executing
those laws by officers of their own appointing; and then the form of the government
is a perfect democracy: or else may put the power of making laws into the hands of
a few select men, and their heirs or successors; and then it is an oligarchy: or
else into the hands of one man, and then it is a monarchy: if to him and his heirs,
it is an hereditary monarchy: if to him only for life, but upon his death the power
only of nominating a successor to return to them; an elective monarchy. And so
accordingly of these the community may make compounded and mixed forms of government, as
they think good. And if the legislative power be at first given by the majority to one or
more persons only for their lives, or any limited time, and then the supreme power to
revert to them again; when it is so reverted, the community may dispose of it again anew
into what hands they please, and so constitute a new form of government: for the form
of government depending upon the placing the supreme power, which is the legislative,
it being impossible to conceive that an inferior power should prescribe to a superior, or
any but the supreme make laws, according as the power of making laws is placed, such is the
form of the common-wealth.
Sect. 133. By common-wealth, I must be understood
all along to mean, not a democracy, or any form of government, but any independent
community, which the Latines signified by the word civitas, to which the
word which best answers in our language, is common-wealth, and most properly
expresses such a society of men, which community or city in English does not; for
there may be subordinate communities in a government; and city amongst us has a quite
different notion from common-wealth: and therefore, to avoid ambiguity, I crave leave to
use the word common-wealth in that sense, in which I find it used by King James
the first; and I take it to be its genuine signification; which if any body dislike, I
consent with him to change it for a better.
The Second Treatise of Government
Chapter 11
John Locke
1690
Sect. 134. THE great end of men's entering into society,
being the enjoyment of their properties in peace and safety, and the great instrument and
means of that being the laws established in that society; the first and fundamental
positive law of all commonwealths is the establishing of the legislative power;
as the first and fundamental natural law, which is to govern even the legislative
itself, is the preservation of the society, and (as far as will consist with the
public good) of every person in it. This legislative is not only the supreme
power of the common-wealth, but sacred and unalterable in the hands where the
community have once placed it; nor can any edict of any body else, in what form soever
conceived, or by what power soever backed, have the force and obligation of a law,
which has not its sanction from that legislative which the public has chosen
and appointed: for without this the law could not have that, which is absolutely necessary
to its being a law, the consent of the society, over whom no body can have a power
to make laws, but by their own consent,* and by authority received from them; and
therefore all the obedience, which by the most solemn ties any one can be obliged
to pay, ultimately terminates in this supreme power, and is directed by those laws
which it enacts: nor can any oaths to any foreign power whatsoever, or any domestic
subordinate power, discharge any member of the society from his obedience to the
legislative, acting pursuant to their trust; nor oblige him to any obedience contrary
to the laws so enacted, or farther than they do allow; it being ridiculous to imagine one
can be tied ultimately to obey any power in the society, which is not the
supreme.
(*The lawful power of making laws to command whole politic
societies of men, belonging so properly unto the same intire societies, that for any
prince or potentate of what kind soever upon earth, to exercise the same of himself, and
not by express commission immediately and personally received from God, or else by
authority derived at the first from their consent, upon whose persons they impose laws, it
is no better than mere tyranny. Laws they are not therefore which public approbation hath
not made so. Hooker's Eccl. Pol. l. i. sect. 10. Of this point therefore we
are to note, that sith men naturally have no full and perfect power to command whole
politic multitudes of men, therefore utterly without our consent, we could in such sort be
at no man's commandment living. And to be commanded we do consent, when that society,
whereof we be a part, hath at any time before consented, without revoking the same after
by the like universal agreement. Laws therefore human, of what kind so ever, are available
by consent. Ibid.)
Sect. 135. Though the legislative, whether placed
in one or more, whether it be always in being, or only by intervals, though it be the supreme
power in every common-wealth; yet, First, It is not, nor can possibly be
absolutely arbitrary over the lives and fortunes of the people: for it being but
the joint power of every member of the society given up to that person, or assembly, which
is legislator; it can be no more than those persons had in a state of nature before they
entered into society, and gave up to the community: for no body can transfer to another
more power than he has in himself; and no body has an absolute arbitrary power over
himself, or over any other, to destroy his own life, or take away the life or property of
another. A man, as has been proved, cannot subject himself to the arbitrary power of
another; and having in the state of nature no arbitrary power over the life, liberty, or
possession of another, but only so much as the law of nature gave him for the preservation
of himself, and the rest of mankind; this is all he cloth, or can give up to the
common-wealth, and by it to the legislative power, so that the legislative can have
no more than this. Their power, in the utmost bounds of it, is limited to the public
good of the society. It is a power, that hath no other end but preservation, and
therefore can never have a right to destroy, enslave, or designedly to impoverish the
subjects.* The obligations of the law of nature cease not in society, but only in many
cases are drawn closer, and have by human laws known penalties annexed to them, to inforce
their observation. Thus the law of nature stands as an eternal rule to all men, legislators
as well as others. The rules that they make for other men's actions, must, as well
as their own and other men's actions, be conformable to the law of nature, i.e. to the
will of God, of which that is a declaration, and the fundamental law of nature
being the preservation of mankind, no human sanction can be good, or valid against
it.
(*Two foundations there are which bear up public
societies; the one a natural inclination, whereby all men desire sociable life and
fellowship; the other an order, expresly or secretly agreed upon, touching the manner of
their union in living together: the latter is that which we call the law of a common-
weal, the very soul of a politic body, the parts whereof are by law animated, held
together, and set on work in such actions as the common good requireth. Laws politic,
ordained for external order and regiment amongst men, are never framed as they should be,
unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all
obedience to the sacred laws of his nature; in a word, unless presuming man to be, in
regard of his depraved mind, little better than a wild beast, they do accordingly provide,
notwithstanding, so to frame his outward actions, that they be no hindrance unto the
common good, for which societies are instituted. Unless they do this, they are not
perfect. Hooker's Eccl. Pol. l. i. sect. 10.)
Sect. 136. Secondly, The legislative, or
supreme authority, cannot assume to its self a power to rule by extemporary arbitrary
decrees,* but is bound to dispense justice, and decide the rights of the subject by
promulgated standing laws, and known authorized judges: for the law of nature being
unwritten, and so no where to be found but in the minds of men, they who through passion
or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake
where there is no established judge: and so it serves not, as it ought, to determine the
rights, and fence the properties of those that live under it, especially where every one
is judge, interpreter, and executioner of it too, and that in his own case: and he that
has right on his side, having ordinarily but his own single strength, hath not force
enough to defend himself from injuries, or to punish delinquents. To avoid these
inconveniences, which disorder men's propperties in the state of nature, men unite into
societies, that they may have the united strength of the whole society to secure and
defend their properties, and may have standing rules to bound it, by which every
one may know what is his. To this end it is that men give up all their natural power to
the society which they enter into, and the community put the legislative power into such
hands as they think fit, with this trust, that they shall be governed by declared laws,
or else their peace, quiet, and property will still be at the same uncertainty, as it was
in the state of nature.
(*Human laws are measures in respect of men whose actions
they must direct, howbeit such measures they are as have also their higher rules to be
measured by, which rules are two, the law of God, and the law of nature; so that laws
human must be made according to the general laws of nature, and without contradiction to
any positive law of scripture, otherwise they are ill made. Hooker's Eccl. Pol. l.
iii. sect. 9. To constrain men to any thing inconvenient cloth seem unreasonable. Ibid.
l. i. sect. 10.)
Sect. 137. Absolute arbitrary power, or governing without settled
standing laws, can neither of them consist with the ends of society and government,
which men would not quit the freedom of the state of nature for, and tie themselves up
under, were it not to preserve their lives, liberties and fortunes, and by stated rules
of right and property to secure their peace and quiet. It cannot be supposed that they
should intend, had they a power so to do, to give to any one, or more, an absolute
arbitrary power over their persons and estates, and put a force into the magistrate's
hand to execute his unlimited will arbitrarily upon them. This were to put themselves into
a worse condition than the state of nature, wherein they had a liberty to defend their
right against the injuries of others, and were upon equal terms of force to maintain it,
whether invaded by a single man, or many in combination. Whereas by supposing they have
given up themselves to the absolute arbitrary power and will of a legislator, they
have disarmed themselves, and armed him, to make a prey of them when he pleases; he being
in a much worse condition, who is exposed to the arbitrary power of one man, who has the
command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men;
no body being secure, that his will, who has such a command, is better than that of other
men, though his force be 100,000 times stronger. And therefore, whatever form the
common-wealth is under, the ruling power ought to govern by declared and received
laws, and not by extemporary dictates and undetermined resolutions: for then
mankind will be in a far worse condition than in the state of nature, if they shall have
armed one, or a few men with the joint power of a multitude, to force them to obey at
pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained,
and till that moment unknown wills, without having any measures set down which may guide
and justify their actions: for all the power the government has, being only for the good
of the society, as it ought not to be arbitrary and at pleasure, so it ought to be
exercised by established and promulgated laws; that both the people may know their
duty, and be safe and secure within the limits of the law; and the rulers too kept within
their bounds, and not be tempted, by the power they have in their hands, to employ it to
such purposes, and by such measures, as they would not have known, and own not willingly.
Sect. 138. Thirdly, The supreme power cannot
take from any man any part of his property without his own consent: for the
preservation of property being the end of government, and that for which men enter into
society, it necessarily supposes and requires, that the people should have property,
without which they must be supposed to lose that, by entering into society, which was the
end for which they entered into it; too gross an absurdity for any man to own. Men
therefore in society having property, they have such a right to the goods, which by
the law of the community are their's, that no body hath a right to take their substance or
any part of it from them, without their own consent: without this they have no property
at all; for I have truly no property in that, which another can by right take from
me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme
or legislative power of any common- wealth, can do what it will, and dispose of the
estates of the subject arbitrarily, or take any part of them at pleasure. This is
not much to be feared in governments where the legislative consists, wholly or in
part, in assemblies which are variable, whose members, upon the dissolution of the
assembly, are subjects under the common laws of their country, equally with the rest. But
in governments, where the legislative is in one lasting assembly always in being,
or in one man, as in absolute monarchies, there is danger still, that they will think
themselves to have a distinct interest from the rest of the community; and so will be apt
to increase their own riches and power, by taking what they think fit from the people: for
a man's property is not at all secure, tho' there be good and equitable laws to set
the bounds of it between him and his fellow subjects, if he who commands those subjects
have power to take from any private man, what part he pleases of his property, and
use and dispose of it as he thinks good.
Sect. 139. But government, into whatsoever hands it
is put, being, as I have before shewed, intrusted with this condition, and for this end,
that men might have and secure their properties; the prince, or senate, however it
may have power to make laws, for the regulating of property between the subjects
one amongst another, yet can never have a power to take to themselves the whole, or any
part of the subjects property, without their own consent: for this would be in
effect to leave them no property at all. And to let us see, that even absolute
power, where it is necessary, is not arbitrary by being absolute, but is still
limited by that reason, and confined to those ends, which required it in some cases to be
absolute, we need look no farther than the common practice of martial discipline: for the
preservation of the army, and in it of the whole common-wealth, requires an absolute
obedience to the command of every superior officer, and it is justly death to disobey
or dispute the most dangerous or unreasonable of them; but yet we see, that neither the
serjeant, that could command a soldier to march up to the mouth of a cannon, or stand in a
breach, where he is almost sure to perish, can command that soldier to give him one penny
of his money; nor the general, that can condemn him to death for deserting his
post, or for not obeying the most desperate orders, can yet, with all his absolute power
of life and death, dispose of one farthing of that soldier's estate, or seize one jot of
his goods; whom yet he can command any thing, and hang for the least disobedience; because
such a blind obedience is necessary to that end, for which the commander has his power,
viz. the preservation of the rest; but the disposing of his goods has nothing to do with
it.
Sect. 140. It is true, governments cannot be supported
without great charge, and it is fit every one who enjoys his share of the protection,
should pay out of his estate his proportion for the maintenance of it. But still it must
be with his own consent, i.e. the consent of the majority, giving it either by themselves,
or their representatives chosen by them: for if any one shall claim a power to lay
and levy taxes on the people, by his own authority, and without such consent of the
people, he thereby invades the fundamental law of property, and subverts the end of
government: for what property have I in that, which another may by right take, when he
pleases, to himself?
Sect. 141. Fourthly, The legislative cannot
transfer the power of making laws to any other hands: for it being but a delegated
power from the people, they who have it cannot pass it over to others. The people alone
can appoint the form of the common-wealth, which is by constituting the legislative, and
appointing in whose hands that shall be. And when the people have said, We will submit to
rules, and be governed by laws made by such men, and in such forms, no body else
can say other men shall make laws for them; nor can the people be bound by any laws,
but such as are enacted by those whom they have chosen, and authorized to make laws
for them. The power of the legislative, being derived from the people by a positive
voluntary grant and institution, can be no other than what that positive grant conveyed,
which being only to make laws, and not to make legislators, the legislative
can have no power to transfer their authority of making laws, and place it in other hands.
Sect. 142. These are the bounds which the trust,
that is put in them by the society, and the law of God and nature, have set to the
legislative power of every common-wealth, in all forms of government. First, They are
to govern by promulgated established laws, not to be varied in particular cases,
but to have one rule for rich and poor, for the favourite at court, and the country man at
plough. Secondly, These laws also ought to be designed for no other end
ultimately, but the good of the people. Thirdly, They must not raise taxes
on the property of the people, without the consent of the people, given by
themselves, or their deputies. And this properly concerns only such governments where the legislative
is always in being, or at least where the people have not reserved any part of the
legislative to deputies, to be from time to time chosen by themselves. Fourthly, The legislative
neither must nor can transfer the power of making laws to any body else, or place
it any where, but where the people have.
The Second Treatise of Government
Chapter 12
John Locke
1690
Sect. 143. THE legislative power is that, which has
a right to direct how the force of the common-wealth shall be employed for
preserving the community and the members of it. But because those laws which are
constantly to be executed, and whose force is always to continue, may be made in a little
time; therefore there is no need, that the legislative should be always in being,
not having always business to do. And because it may be too great a temptation to human
frailty, apt to grasp at power, for the same persons, who have the power of making laws,
to have also in their hands the power to execute them, whereby they may exempt themselves
from obedience to the laws they make, and suit the law, both in its making, and execution,
to their own private advantage, and thereby come to have a distinct interest from the rest
of the community, contrary to the end of society and government: therefore in well ordered
commonwealths, where the good of the whole is so con sidered, as it ought, the legislative
power is put into the hands of divers persons, who duly assembled, have by themselves, or
jointly with others, a power to make laws, which when they have done, being separated
again, they are themselves subject to the laws they have made; which is a new and near tie
upon them, to take care, that they make them for the public good.
Sect. 144. But because the laws, that are at once, and in
a short time made, have a constant and lasting force, and need a perpetual execution,
or an attendance thereunto; therefore it is necessary there should be a power always in
being, which should see to the execution of the laws that are made, and remain in
force. And thus the legislative and executive power come often to be
separated.
Sect. 145. There is another power in every
common-wealth, which one may call natural, because it is that which answers to the
power every man naturally had before he entered into society: for though in a
common-wealth the members of it are distinct persons still in reference to one another,
and as such as governed by the laws of the society; yet in reference to the rest of
mankind, they make one body, which is, as every member of it before was, still in the
state of nature with the rest of mankind. Hence it is, that the controversies that happen
between any man of the society with those that are out of it, are managed by the public;
and an injury done to a member of their body, engages the whole in the reparation of it.
So that under this consideration, the whole community is one body in the state of nature,
in respect of all other states or persons out of its community.
Sect. 146. This therefore contains the power of war and
peace, leagues and alliances, and all the transactions, with all persons and communities
without the common-wealth, and may be called federative, if any one pleases. So the
thing be understood, I am indifferent as to the name.
Sect. 147. These two powers, executive and federative,
though they be really distinct in themselves, yet one comprehending the execution
of the municipal laws of the society within its self, upon all that are parts of
it; the other the management of the security and interest of the public without,
with all those that it may receive benefit or damage from, yet they are always almost
united. And though this federative power in the well or ill management of it be of
great moment to the common-wealth, yet it is much less capable to be directed by
antecedent, standing, positive laws, than the executive; and so must necessarily be
left to the prudence and wisdom of those, whose hands it is in, to be managed for the
public good: for the laws that concern subjects one amongst another, being to
direct their actions, may well enough precede them. But what is to be done in
reference to foreigners, depending much upon their actions, and the variation of
designs and interests, must be left in great part to the prudence of
those, who have this power committed to them, to be managed by the best of their skill,
for the advantage of the common-wealth.
Sect. 148. Though, as I said, the executive and federative
power of every community be really distinct in themselves, yet they are hardly to be
separated, and placed at the same time, in the hands of distinct persons: for both of them
requiring the force of the society for their exercise, it is almost impracticable to place
the force of the common-wealth in distinct, and not subordinate hands; or that the executive
and federative power should be placed in persons, that might act separately,
whereby the force of the public would be under different commands: which would be apt some
time or other to cause disorder and ruin.
The Second Treatise of Government
Chapter 13
John Locke
1690
Sect. 149. THOUGH in a constituted common-wealth, standing
upon its own basis, and acting according to its own nature, that is, acting for the
preservation of the community, there can be but one supreme power, which is the
legislative, to which all the rest are and must be subordinate, yet the legislative
being only a fiduciary power to act for certain ends, there remains still in the people
a supreme power to remove or alter the legislative, when they find the legislative
act contrary to the trust reposed in them: for all power given with trust for the
attaining an end, being limited by that end, whenever that end is manifestly
neglected, or opposed, the trust must necessarily be forfeited, and the
power devolve into the hands of those that gave it, who may place it anew where they shall
think best for their safety and security. And thus the community perpetually retains
a supreme power of saving themselves from the attempts and designs of any body, even
of their legislators, whenever they shall be so foolish, or so wicked, as to lay and carry
on designs against the liberties and properties of the subject: for no man or society of
men, having a power to deliver up their preservation, or consequently the means of
it, to the absolute will and arbitrary dominion of another; when ever any one shall go
about to bring them into such a slavish condition, they will always have a right to
preserve, what they have not a power to part with; and to rid themselves of those, who
invade this fundamental, sacred, and unalterable law of self-preservation, for
which they entered into society. And thus the community may be said in this respect
to be always the supreme power, but not as considered under any form of government,
because this power of the people can never take place till the government be dissolved.
Sect. 150. In all cases, whilst the government subsists,
the legislative is the supreme power: for what can give laws to another, must needs
be superior to him; and since the legislative is no otherwise legislative of the society,
but by the right it has to make laws for all the parts, and for every member of the
society, prescribing rules to their actions, and giving power of execution, where they are
transgressed, the legislative must needs be the supreme, and all other
powers, in any members or parts of the society, derived from and subordinate to it.
Sect. 151. In some commonwealths, where the legislative
is not always in being, and the executive is vested in a single person, who has
also a share in the legislative; there that single person in a very tolerable sense may
also be called supreme: not that he has in himself all the supreme power, which is
that of law-making; but because he has in him the supreme execution, from whom all
inferior magistrates derive all their several subordinate powers, or at least the greatest
part of them: having also no legislative superior to him, there being no law to be made
without his consent, which cannot be expected should ever subject him to the other part of
the legislative, he is properly enough in this sense supreme. But yet it is
to be observed, that though oaths of allegiance and fealty are taken to him, it is
not to him as supreme legislator, but as supreme executor of the law, made by a
joint power of him with others; allegiance being nothing but an obedience
according to law, which when he violates, he has no right to obedience, nor can claim
it otherwise than as the public person vested with the power of the law, and so is to be
considered as the image, phantom, or representative of the common-wealth, acted by the
will of the society, declared in its laws; and thus he has no will, no power, but that of
the law. But when he quits this representation, this public will, and acts by his own
private will, he degrades himself, and is but a single private person without power, and
without will, that has any right to obedience; the members owing no obedience
but to the public will of the society.
Sect. 152. The executive power, placed any where
but in a person that has also a share in the legislative, is visibly subordinate and
accountable to it, and may be at pleasure changed and displaced; so that it is not the supreme
executive power, that is exempt from subordination, but the supreme
executive power vested in one, who having a share in the legislative, has no distinct
superior legislative to be subordinate and accountable to, farther than he himself shall
join and consent; so that he is no more subordinate than he himself shall think fit, which
one may certainly conclude will be but very little. Of other ministerial and subordinate
powers in a commonwealth, we need not speak, they being so multiplied with infinite
variety, in the different customs and constitutions of distinct commonwealths, that it is
impossible to give a particular account of them all. Only thus much, which is necessary to
our present purpose, we may take notice of concerning them, that they have no manner of
authority, any of them, beyond what is by positive grant and commission delegated to them,
and are all of them accountable to some other power in the common-wealth.
Sect. 153. It is not necessary, no, nor so much as
convenient, that the legislative should be always in being; but absolutely
necessary that the executive power should, because there is not always need of new
laws to be made, but always need of execution of the laws that are made. When the legislative
hath put the execution of the laws, they make, into other hands, they have a power
still to resume it out of those hands, when they find cause, and to punish for any
maladministration against the laws. The same holds also in regard of the federative
power, that and the executive being both ministerial and subordinate to the legislative,
which, as has been shewed, in a constituted common-wealth is the supreme. The legislative
also in this case being supposed to consist of several persons, (for if it be a single
person, it cannot but be always in being, and so will, as supreme, naturally have the
supreme executive power, together with the legislative) may assemble, and exercise
their legislature, at the times that either their original constitution, or their own
adjournment, appoints, or when they please; if neither of these hath appointed any time,
or there be no other way prescribed to convoke them: for the supreme power being placed in
them by the people, it is always in them, and they may exercise it when they please,
unless by their original constitution they are limited to certain seasons, or by an act of
their supreme power they have adjourned to a certain time; and when that time comes, they
have a right to assemble and act again.
Sect. 154. If the legislative, or any part of it,
be made up of representatives chosen for that time by the people, which afterwards return
into the ordinary state of subjects, and have no share in the legislature but upon a new
choice, this power of chusing must also be exercised by the people, either at certain
appointed seasons, or else when they are summoned to it; and in this latter case ' the
power of convoking the legislative is ordinarily placed in the executive, and has one of
these two limitations in respect of time: that either the original constitution requires
their assembling and acting at certain intervals, and then the executive
power does nothing but ministerially issue directions for their electing and assembling,
according to due forms; or else it is left to his prudence to call them by new elections,
when the occasions or exigencies of the public require the amendment of old, or making of
new laws, or the redress or prevention of any inconveniencies, that lie on, or threaten
the people.
Sect. 155. It may be demanded here, What if the executive
power, being possessed of the force of the common-wealth, shall make use of that force to
hinder the meeting and acting of the legislative, when the original
constitution, or the public exigencies require it? I say, using force upon the people
without authority, and contrary to the trust put in him that does so, is a state of war
with the people, who have a right to reinstate their legislative in the exercise
of their power: for having erected a legislative, with an intent they should exercise the
power of making laws, either at certain set times, or when there is need of it, when they
are hindered by any force from what is so necessary to the society, and wherein the safety
and preservation of the people consists, the people have a right to remove it by force. In
all states and conditions, the true remedy of force without authority, is to oppose
force to it. The use of force without authority, always puts him that uses
it into a state of war, as the aggressor, and renders him liable to be treated
accordingly.
Sect. 156. The power of assembling and dismissing the
legislative, placed in the executive, gives not the executive a superiority over it,
but is a fiduciary trust placed in him, for the safety of the people, in a case where the
uncertainty and variableness of human affairs could not bear a steady fixed rule: for it
not being possible, that the first framers of the government should, by any foresight, be
so much masters of future events, as to be able to prefix so just periods of return and
duration to the assemblies of the legislative, in all times to come, that might
exactly answer all the exigencies of the common- wealth; the best remedy could be found
for this defect, was to trust this to the prudence of one who was always to be present,
and whose business it was to watch over the public good. Constant frequent meetings of
the legislative, and long continuations of their assemblies, without necessary
occasion, could not but be burdensome to the people, and must necessarily in time produce
more dangerous inconveniencies, and yet the quick turn of affairs might be sometimes such
as to need their present help: any delay of their convening might endanger the
public; and sometimes too their business might be so great, that the limited time of their
sitting might be too short for their work, and rob the public of that benefit which could
be had only from their mature deliberation. What then could be done in this case to
prevent the community from being exposed some time or other to eminent hazard, on one side
or the other, by fixed intervals and periods, set to the meeting and acting of the
legislative, but to intrust it to the prudence of some, who being present, and
acquainted with the state of public affairs, might make use of this prerogative for the
public good? and where else could this be so well placed as in his hands, who was
intrusted with the execution of the laws for the same end? Thus supposing the regulation
of times for the assembling and sitting of the legislative, not settled by the
original constitution, it naturally fell into the hands of the executive, not as an
arbitrary power depending on his good pleasure, but with this trust always to have it
exercised only for the public weal, as the occurrences of times and change of affairs
might require. Whether settled periods of their convening, or a liberty left
to the prince for convoking the legislative, or perhaps a mixture of both, hath the
least inconvenience attending it, it is not my business here to inquire, but only to shew,
that though the executive power may have the prerogative of convoking and dissolving
such conventions of the legislative, yet it is not thereby superior to it.
Sect. 157. Things of this world are in so constant a flux,
that nothing remains long in the same state. Thus people, riches, trade, power, change
their stations, flourishing mighty cities come to ruin, and prove in times neglected
desolate corners, whilst other unfrequented places grow into populous countries, filled
with wealth and inhabitants. But things not always changing equally, and private interest
often keeping up customs and privileges, when the reasons of them are ceased, it often
comes to pass, that in governments, where part of the legislative consists of representatives
chosen by the people, that in tract of time this representation becomes very unequal
and disproportionate to the reasons it was at first established upon. To what gross
absurdities the following of custom, when reason has left it, may lead, we may be
satisfied, when we see the bare name of a town, of which there remains not so much as the
ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is
to be found, sends as many representatives to the grand assembly of law-makers, as
a whole county numerous in people, and powerful in riches. This strangers stand amazed at,
and every one must confess needs a remedy; tho' most think it hard to find one, because
the constitution of the legislative being the original and supreme act of the society,
antecedent to all positive laws in it, and depending wholly on the people, no inferior
power can alter it. And therefore the people, when the legislative is once
constituted, having, in such a government as we have been speaking of, no power
to act as long as the government stands; this inconvenience is thought incapable of a
remedy.
Sect. 158. Salus populi suprema lex, is certainly
so just and fundamental a rule, that he, who sincerely follows it, cannot dangerously err.
If therefore the executive, who has the power of convoking the legislative, observing
rather the true proportion, than fashion of representation, regulates, not by old
custom, but true reason, the number of members, in all places that have a right to
be distinctly represented, which no part of the people however incorporated can pretend
to, but in proportion to the assistance which it affords to the public, it cannot be
judged to have set up a new legislative, but to have restored the old and true one, and to
have rectified the disorders which succession of time had insensibly, as well as
inevitably introduced: For it being the interest as well as intention of the people, to
have a fair and equal representative; whoever brings it nearest to that, is an
undoubted friend to, and establisher of the government, and cannot miss the consent and
approbation of the community. Prerogative being nothing but a power, in the hands
of the prince, to provide for the public good, in such cases, which depending upon
unforeseen and uncertain occurrences, certain and unalterable laws could not safely
direct; whatsoever shall be done manifestly for the good of the people, and the
establishing the government upon its true foundations, is, and always will be, just prerogative,
The power of erecting new corporations, and therewith new representatives, carries
with it a supposition, that in time the measures of representation might vary, and
those places have a just right to be represented which before had none; and by the same
reason, those cease to have a right, and be too inconsiderable for such a privilege, which
before had it. 'Tis not a change from the present state, which perhaps corruption or decay
has introduced, that makes an inroad upon the government, but the tendency of it to injure
or oppress the people, and to set up one part or party, with a distinction from, and an
unequal subjection of the rest. Whatsoever cannot but be acknowledged to be of advantage
to the society, and people in general, upon just and lasting measures, will always, when
done, justify itself; and whenever the people shall chuse their representatives upon
just and undeniably equal measures, suitable to the original frame of the
government, it cannot be doubted to be the will and act of the society, whoever permitted
or caused them so to do.
The Second Treatise of Government
Chapter 14
John Locke
1690
Sect. 159. WHERE the legislative and executive power are
in distinct hands, (as they are in all moderated monarchies, and well-framed governments)
there the good of the society requires, that several things should be left to the
discretion of him that has the executive power: for the legislators not being able to
foresee, and provide by laws, for all that may be useful to the community, the executor of
the laws having the power in his hands, has by the common law of nature a right to make
use of it for the good of the society, in many cases, where the municipal law has given no
direction, till the legislative can conveniently be assembled to provide for it. Many
things there are, which the law can by no means provide for; and those must necessarily be
left to the discretion of him that has the executive power in his hands, to be ordered by
him as the public good and advantage shall require: nay, it is fit that the laws
themselves should in some cases give way to the executive power, or rather to this
fundamental law of nature and government, viz. That as much as may be, all
the members of the society are to be preserved: for since many accidents may
happen, wherein a strict and rigid observation of the laws may do harm; (as not to pull
down an innocent man's house to stop the fire, when the next to it is burning) and a man
may come sometimes within the reach of the law, which makes no distinction of persons, by
an action that may deserve reward and pardon; 'tis fit the ruler should have a power, in
many cases, to mitigate the severity of the law, and pardon some offenders: for the end
of government being the preservation of all, as much as may be, even the guilty
are to be spared, where it can prove no prejudice to the innocent.
Sect. 160. This power to act according to discretion, for
the public good, without the prescription of the law, and sometimes even against it, is
that which is called prerogative: for since in some governments the lawmaking power
is not always in being, and is usually too numerous, and so too slow, for the dispatch
requisite to execution; and because also it is impossible to foresee, and so by laws to
provide for, all accidents and necessities that may concern the public, or to make such
laws as will do no harm, if they are executed with an inflexible rigour, on all occasions,
and upon all persons that may come in their way; therefore there is a latitude left to the
executive power, to do many things of choice which the laws do not prescribe.
Sect. 161. This power, whilst employed for the benefit of
the community, and suitably to the trust and ends of the government, is undoubted
prerogative, and never is questioned: for the people are very seldom or never
scrupulous or nice in the point; they are far from examining prerogative, whilst it
is in any tolerable degree employed for the use it was meant, that is, for the good of the
people, and not manifestly against it: but if there comes to be a question between
the executive power and the people, about a thing claimed as a prerogative;
the tendency of the exercise of such prerogative to the good or hurt of the people,
will easily decide that question.
Sect. 162. It is easy to conceive, that in the infancy of
governments, when commonwealths differed little from families in number of people, they
differed from them too but little in number of laws: and the governors, being as the
fathers of them, watching over them for their good, the government was almost all prerogative.
A few established laws served the turn, and the discretion and care of the ruler supplied
the rest. But when mistake or flattery prevailed with weak princes to make use of this
power for private ends of their own, and not for the public good, the people were fain by
express laws to get prerogative determined in those points wherein they found disadvantage
from it: and thus declared limitations of prerogative were by the people found
necessary in cases which they and their ancestors had left, in the utmost latitude, to the
wisdom of those princes who made no other but a right use of it, that is, for the good of
their people.
Sect. 163. And therefore they have a very wrong notion of
government, who say, that the people have encroached upon the prerogative, when
they have got any part of it to be defined by positive laws: for in so doing they have not
pulled from the prince any thing that of right belonged to him, but only declared, that
that power which they indefinitely left in his or his ancestors hands, to be exercised for
their good, was not a thing which they intended him when he used it otherwise: for the end
of government being the good of the community, whatsoever alterations are made in it,
tending to that end, cannot be an encroachment upon any body, since no body in
government can have a right tending to any other end: and those only are encroachments
which prejudice or hinder the public good. Those who say otherwise, speak as if the prince
had a distinct and separate interest from the good of the community, and was not made for
it; the root and source from which spring almost all those evils and disorders which
happen in kingly governments. And indeed, if that be so, the people under his government
are not a society of rational creatures, entered into a community for their mutual good;
they are not such as have set rulers over themselves, to guard, and promote that good; but
are to be looked on as an herd of inferior creatures under the dominion of a master, who
keeps them and works them for his own pleasure or profit. If men were so void of reason,
and brutish, as to enter into society upon such terms, prerogative might indeed be,
what some men would have it, an arbitrary power to do things hurtful to the people.
Sect. 164. But since a rational creature cannot be
supposed, when free, to put himself into subjection to another, for his own harm; (though,
where he finds a good and wise ruler, he may not perhaps think it either necessary or
useful to set precise bounds to his power in all things) prerogative can be nothing
but the people's permitting their rulers to do several things, of their own free choice,
where the law was silent, and sometimes too against the direct letter of the law, for the
public good; and their acquiescing in it when so done: for as a good prince, who is
mindful of the trust put into his hands, and careful of the good of his people, cannot
have too much prerogative, that is, power to do good; so a weak and ill prince, who
would claim that power which his predecessors exercised without the direction of the law,
as a prerogative belonging to him by right of his office, which he may exercise at his
pleasure, to make or promote an interest distinct from that of the public, gives the
people an occasion to claim their right, and limit that power, which, whilst it was
exercised for their good, they were content should be tacitly allowed.
Sect. 165. And therefore he that will look into the history
of England, will find, that prerogative was always largest in the hands of our
wisest and best princes; because the people, observing the whole tendency of their actions
to be the public good, contested not what was done without law to that end: or, if any
human frailty or mistake (for princes are but men, made as others) appeared in some small
declinations from that end; yet 'twas visible, the main of their conduct tended to nothing
but the care of the public. The people therefore, finding reason to be satisfied with
these princes, whenever they acted without, or contrary to the letter of the law,
acquiesced in what they did, and, without the least complaint, let them enlarge their prerogative
as they pleased, judging rightly, that they did nothing herein to the prejudice of their
laws, since they acted conformable to the foundation and end of all laws, the public good.
Sect. 166. Such god-like princes indeed had some title to
arbitrary power by that argument, that would prove absolute monarchy the best government,
as that which God himself governs the universe by; because such kings partake of his
wisdom and goodness. Upon this is founded that saying, That the reigns of good princes
have been always most dangerous to the liberties of their people: for when their
successors, managing the government with different thoughts, would draw the actions of
those good rulers into precedent, and make them the standard of their prerogative,
as if what had been done only for the good of the people was a right in them to do, for
the harm of the people, if they so pleased; it has often occasioned contest, and sometimes
public disorders, before the people could recover their original right, and get that to be
declared not to be prerogative, which truly was never so; since it is impossible
that any body in the society should ever have a right to do the people harm; though it be
very possible, and reasonable, that the people should not go about to set any bounds to
the prerogative of those kings, or rulers, who themselves transgressed not the
bounds of the public good: for prerogative is nothing but the power of doing public
good without a rule.
Sect. 167. The power of calling parliaments in England,
as to precise time, place, and duration, is certainly a prerogative of the king,
but still with this trust, that it shall be made use of for the good of the nation, as the
exigencies of the times, and variety of occasions, shall require: for it being impossible
to foresee which should always be the fittest place for them to assemble in, and what the
best season; the choice of these was left with the executive power, as might be most
subservient to the public good, and best suit the ends of parliaments.
Sect. 168. The old question will be asked in this matter
of prerogative, But who shall be judge when this power is made a right use
of ? 1 answer: between an executive power in being, with such a prerogative, and a
legislative that depends upon his will for their convening, there can be no judge on
earth; as there can be none between the legislative and the people, should either the
executive, or the legislative, when they have got the power in their hands, design, or go
about to enslave or destroy them. The people have no other remedy in this, as in all other
cases where they have no judge on earth, but to appeal to heaven: for the rulers,
in such attempts, exercising a power the people never put into their hands, (who can never
be supposed to consent that any body should rule over them for their harm) do that which
they have not a right to do. And where the body of the people, or any single man, is
deprived of their right, or is under the exercise of a power without right, and have no
appeal on earth, then they have a liberty to appeal to heaven, whenever they judge the
cause of sufficient moment. And therefore, though the people cannot be judge,
so as to have, by the constitution of that society, any superior power, to determine and
give effective sentence in the case; yet they have, by a law antecedent and paramount to
all positive laws of men, reserved that ultimate determination to themselves which belongs
to all mankind, where there lies no appeal on earth, viz. to judge, whether they
have just cause to make their appeal to heaven. And this judgment they cannot part with,
it being out of a man's power so to submit himself to another, as to give him a liberty to
destroy him; God and nature never allowing a man so to abandon himself, as to neglect his
own preservation: and since he cannot take away his own life, neither can he give another
power to take it. Nor let any one think, this lays a perpetual foundation for disorder;
for this operates not, till the inconveniency is so great, that the majority feel it, and
are weary of it, and find a necessity to have it amended. But this the executive power, or
wise princes, never need come in the danger of: and it is the thing, of all others, they
have most need to avoid, as of all others the most perilous.
The Second Treatise of Government
Chapter 15
John Locke
1690
Sect. 169. THOUGH I have had occasion to speak of these
separately before, yet the great mistakes of late about government, having, as I suppose,
arisen from confounding these distinct powers one with another, it may not, perhaps, be
amiss to consider them here together.
Sect. 170. First, then, Paternal or parental
power is nothing but that which parents have over their children, to govern them for
the children's good, till they come to the use of reason, or a state of knowledge, wherein
they may be supposed capable to understand that rule, whether it be the law of nature, or
the municipal law of their country, they are to govern themselves by: capable, I say, to
know it, as well as several others, who live as freemen under that law. The affection and
tenderness which God hath planted in the breast of parents towards their children, makes
it evident, that this is not intended to be a severe arbitrary government, but only for
the help, instruction, and preservation of their offspring. But happen it as it will,
there is, as I have proved, no reason why it should be thought to extend to life and
death, at any time, over their children, more than over any body else; neither can there
be any pretence why this parental power should keep the child, when grown to a man, in
subjection to the will of his parents, any farther than having received life and education
from his parents, obliges him to respect, honour, gratitude, assistance and support, all
his life, to both father and mother. And thus, 'tis true, the paternal is a natural
government, but not at all extending itself to the ends and jurisdictions of that
which is political. The power of the father doth not reach at all to the property
of the child, which is only in his own disposing.
Sect. 171. Secondly, Political power is that power,
which every man having in the state of nature, has given up into the hands of the society,
and therein to the governors, whom the society hath set over itself, with this express or
tacit trust, that it shall be employed for their good, and the preservation of their
property: now this power, which every man has in the state of nature, and
which he parts with to the society in all such cases where the society can secure him, is
to use such means, for the preserving of his own property, as he thinks good, and nature
allows him; and to punish the breach of the law of nature in others, so as (according to
the best of his reason) may most conduce to the preservation of himself, and the rest of
mankind. So that the end and measure of this power, when in every man's hands in
the state of nature, being the preservation of all of his society, that is, all mankind in
general, it can have no other end or measure, when in the hands of the magistrate,
but to preserve the members of that society in their lives, liberties, and possessions;
and so cannot be an absolute, arbitrary power over their lives and fortunes, which are as
much as possible to be preserved; but a power to make laws, and annex such penalties
to them, as may tend to the preservation of the whole, by cutting off those parts, and
those only, which are so corrupt, that they threaten the sound and healthy, without which
no severity is lawful. And this power has its original only from compact and
agreement, and the mutual consent of those who make up the community.
Sect. 172. Thirdly, Despotical power is an
absolute, arbitrary power one man has over another, to take away his life, whenever he
pleases. This is a power, which neither nature gives, for it has made no such distinction
between one man and another; nor compact can convey: for man not having such an arbitrary
power over his own life, cannot give another man such a power over it; but it is the
effect only of forfeiture, which the aggressor makes of his own life, when he puts
himself into the state of war with another: for having quitted reason, which God hath
given to be the rule betwixt man and man, and the common bond whereby human kind is united
into one fellowship and society; and having renounced the way of peace which that teaches,
and made use of the force of war, to compass his unjust ends upon another, where he has no
right; and so revolting from his own kind to that of beasts, by making force, which is
their's, to be his rule of right, he renders himself liable to be destroyed by the injured
person, and the rest of mankind, that will join with him in the execution of justice, as
any other wild beast, or noxious brute, with whom mankind can have neither society nor
security*. And thus captives, taken in a just and lawful war, and such only, are subject
to a despotical power, which, as it arises not from compact, so neither is it capable
of any, but is the state of war continued: for what compact can be made with a man that is
not master of his own life? what condition can he perform? and if he be once allowed to be
master of his own life, the despotical, arbitrary power of his master ceases. He
that is master of himself, and his own life, has a right too to the means of preserving
it; so that as soon as compact enters, slavery ceases, and he so far quits his
absolute power, and puts an end to the state of war, who enters into conditions with his
captive.
(*Another copy corrected by Mr. Locke, has it thus:
Noxious brute that is destructive to their being.)
Sect. 173. Nature gives the first of these, viz.
paternal power to parents for the benefit of their children during their minority, to
supply their want of ability, and understanding how to manage their property. (By property
I must be understood here, as in other places, to mean that property which men have in
their persons as well as goods.) Voluntary agreement gives the second, viz. political
power to governors for the benefit of their subjects, to secure them in the possession
and use of their properties. And forfeiture gives the third, despotical power to
lords for their own benefit, over those who are stripped of all property.
Sect. 174. He, that shall consider the distinct rise and
extent, and the different ends of these several powers, will plainly see, that paternal
power comes as far short of that of the magistrate, as despotical
exceeds it; and that absolute dominion, however placed, is so far from being one
kind of civil society, that it is as inconsistent with it, as slavery is with property. Paternal
power is only where minority makes the child incapable to manage his property; political,
where men have property in their own disposal; and despotical, over such as have no
property at all.
The Second Treatise of Government
Chapter 16
John Locke
1690
Sect. 175. THOUGH governments can originally have no other
rise than that before mentioned, nor polities be founded on any thing but the
consent of the people; yet such have been the disorders ambition has filled the world
with, that in the noise of war, which makes so great a part of the history of mankind,
this consent is little taken notice of: and therefore many have mistaken the force
of arms for the consent of the people, and reckon conquest as one of the originals of
government. But conquest is as far from setting up any government, as demolishing
an house is from building a new one in the place. Indeed, it often makes way for a new
frame of a common-wealth, by destroying the former; but, without the consent of the
people, can never erect a new one.
Sect. 176. That the aggressor, who puts himself
into the state of war with another, and unjustly invades another man's right, can,
by such an unjust war, never come to have a right over the conquered, will
be easily agreed by all men, who will not think, that robbers and pyrates have a right of
empire over whomsoever they have force enough to master; or that men are bound by
promises, which unlawful force extorts from them. Should a robber break into my house, and
with a dagger at my throat make me seal deeds to convey my estate to him, would this give
him any title? Just such a title, by his sword, has an unjust conqueror, who forces
me into submission. The injury and the crime is equal, whether committed by the wearer of
a crown, or some petty villain. The title of the offender, and the number of his
followers, make no difference in the offence, unless it be to aggravate it. The only
difference is, great robbers punish little ones, to keep them in their obedience; but the
great ones are rewarded with laurels and triumphs, because they are too big for the weak
hands of justice in this world, and have the power in their own possession, which should
punish offenders. What is my remedy against a robber, that so broke into my house? Appeal
to the law for justice. But perhaps justice is denied, or I am crippled and cannot stir,
robbed and have not the means to do it. If God has taken away all means of seeking remedy,
there is nothing left but patience. But my son, when able, may seek the relief of the law,
which I am denied: he or his son may renew his appeal, till he recover his right.
But the conquered, or their children, have no court, no arbitrator on earth to appeal to.
Then they may appeal, as Jephtha did, to heaven, and repeat their appeal
till they have recovered the native right of their ancestors, which was, to have such a
legislative over them, as the majority should approve, and freely acquiesce in. If it be
objected, This would cause endless trouble; I answer, no more than justice does, where she
lies open to all that appeal to her. He that troubles his neighbour without a cause, is
punished for it by the justice of the court he appeals to: and he that appeals to
heaven must be sure he has right on his side; and a right too that is worth the
trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived,
and will be sure to retribute to every one according to the mischiefs he hath created to
his fellow subjects; that is, any part of mankind: from whence it is plain, that he that conquers
in an unjust war can thereby have no title to the subjection and obedience of the
conquered.
Sect. 177. But supposing victory favours the right side,
let us consider a conqueror in a lawful war, and see what power he gets, and over
whom. First, It is plain he gets no power by his conquest over those that
conquered with him. They that fought on his side cannot suffer by the conquest, but
must at least be as much freemen as they were before. And most commonly they serve upon
terms, and on condition to share with their leader, and enjoy a part of the spoil, and
other advantages that attend the conquering sword; or at least have a part of the subdued
country bestowed upon them. And the conquering people are not, I hope, to be slaves
by conquest, and wear their laurels only to shew they are sacrifices to their leaders
triumph. They that found absolute monarchy upon the title of the sword, make their heroes,
who are the founders of such monarchies, arrant Draw-can-sirs, and forget they had
any officers and soldiers that fought on their side in the battles they won, or assisted
them in the subduing, or shared in possessing, the countries they mastered. We are told by
some, that the English monarchy is founded in the Norman conquest, and that
our princes have thereby a title to absolute dominion: which if it were true, (as by the
history it appears otherwise) and that William had a right to make war on this
island; yet his dominion by conquest could reach no farther than to the Saxons and Britons,
that were then inhabitants of this country. The Normans that came with him, and
helped to conquer, and all descended from them, are freemen, and no subjects by conquest;
let that give what dominion it will. And if 1, or any body else, shall claim freedom, as
derived from them, it will be very hard to prove the contrary: and it is plain, the law,
that has made no distinction between the one and the other, intends not there should be
any difference in their freedom or privileges.
Sect. 178. But supposing, which seldom happens, that the
conquerors and conquered never incorporate into one people, under the same laws and
freedom; let us see next what power a lawful conqueror has over the subdued: and
that I say is purely despotical. He has an absolute power over the lives of those who by
an unjust war have forfeited them; but not over the lives or fortunes of those who engaged
not in the war, nor over the possessions even of those who were actually engaged in it.
Sect. 179. Secondly, I say then the conqueror
gets no power but only over those who have actually assisted, concurred, or consented to
that unjust force that is used against him: for the people having given to their governors
no power to do an unjust thing, such as is to make an unjust war, (for they never had such
a power in themselves) they ought not to be charged as guilty of the violence and
unjustice that is committed in an unjust war, any farther than they actually abet it; no
more than they are to be thought guilty of any violence or oppression their governors
should use upon the people themselves, or any part of their fellow subjects, they having
empowered them no more to the one than to the other. Conquerors, it is true, seldom
trouble themselves to make the distinction, but they willingly permit the confusion of war
to sweep all together: but yet this alters not the right; for the conquerors power over
the lives of the conquered, being only because they have used force to do, or maintain an
injustice, he can have that power only over those who have concurred in that force; all
the rest are innocent; and he has no more title over the people of that country, who have
done him no injury, and so have made no forfeiture of their lives, than he has over any
other, who, without any injuries or provocations, have lived upon fair terms with him.
Sect. 180. Thirdly, The power a conqueror gets
over those he overcomes in a just war, is perfectly despotical: he has an absolute
power over the lives of those, who, by putting themselves in a state of war, have
forfeited them; but he has not thereby a right and title to their possessions. This I
doubt not, but at first sight will seem a strange doctrine, it being so quite contrary to
the practice of the world; there being nothing more familiar in speaking of the dominion
of countries, than to say such an one conquered it; as if conquest, without any more ado,
conveyed a right of possession. But when we consider, that the practice of the strong and
powerful, how universal soever it may be, is seldom the rule of right, however it be one
part of the subjection of the conquered, not to argue against the conditions cut out to
them by the conquering sword.
Sect. 181. Though in all war there be usually a
complication of force and damage, and the aggressor seldom fails to harm the estate, when
he uses force against the persons of those he makes war upon; yet it is the use of force
only that puts a man into the state of war: for whether by force he begins the injury, or
else having quietly, and by fraud, done the injury, he refuses to make reparation, and by
force maintains it, (which is the same thing, as at first to have done it by force) it is
the unjust use of force that makes the war: for he that breaks open my house, and
violently turns me out of doors; or having peaceably got in, by force keeps me out, does
in effect the same thing; supposing we are in such a state, that we have no common judge
on earth, whom I may appeal to, and to whom we are both obliged to submit: for of such I
am now speaking. It is the unjust use of force then, that puts a man into the
state of war with another; and thereby he that is guilty of it makes a forfeiture of
his life: for quitting reason, which is the rule given between man and man, and using
force, the way of beasts, he becomes liable to be destroyed by him he uses force against,
as any savage ravenous beast, that is dangerous to his being.
Sect. 182. But because the miscarriages of the father are
no faults of the children, and they may be rational and peaceable, notwithstanding the
brutishness and injustice of the father; the father, by his miscarriages and violence, can
forfeit but his own life, but involves not his children in his guilt or destruction. His
goods, which nature, that willeth the preservation of all mankind as much as is possible,
hath made to belong to the children to keep them from perishing, do still continue to
belong to his children: for supposing them not to have joined in the war, either
thro'infancy, absence, or choice, they have done nothing to forfeit them: nor has the
conqueror any right to take them away, by the bare title of having subdued him that by
force attempted his destruction; though perhaps he may have some right to them, to repair
the damages he has sustained by the war, and the defence of his own right; which how far
it reaches to the possessions of the conquered, we shall see by and by. So that he that by
conquest has a right over a man's person to destroy him if he pleases, has not
thereby a right over his estate to possess and enjoy it: for it is the brutal force
the aggressor has used, that gives his adversary a right to take away his life, and
destroy him if he pleases, as a noxious creature; but it is damage sustained that alone
gives him title to another man's goods: for though I may kill a thief that sets on me in
the highway, yet I may not (which seems less) take away his money, and let him go: this
would be robbery on my side. His force, and the state of war he put himself in, made him
forfeit his life, but gave me no title to his goods. The right then of conquest
extends only to the lives of those who joined in the war, not to their estates,
but only in order to make reparation for the damages received, and the charges of the war,
and that too with reservation of the right of the innocent wife and children.
Sect. 183. Let the conqueror have as much justice
on his side, as could be supposed, he has no right to seize more than the
vanquished could forfeit: his life is at the victor's mercy; and his service and goods he
may appropriate, to make himself reparation; but he cannot take the goods of his wife and
children; they too had a title to the goods he enjoyed, and their shares in the estate he
possessed: for example, I in the state of nature (and all commonwealths are in the state
of nature one with another) have injured another man, and refusing to give satisfaction,
it comes to a state of war, wherein my defending by force what I had gotten unjustly,
makes me the aggressor. I am conquered: my life, it is true, as forfeit, is at mercy, but
not my wife's and children's. They made not the war, nor assisted in it. I could not
forfeit their lives; they were not mine to forfeit. My wife had a share in my estate; that
neither could I forfeit. And my children also, being born of me, had a right to be
maintained out of my labour or substance. Here then is the case: the conqueror has a title
to reparation for damages received, and the children have a title to their father's estate
for their subsistence: for as to the wife's share, whether her own labour, or compact,
gave her a title to it, it is plain, her husband could not forfeit what was her's. What
must be done in the case? I answer; the fundamental law of nature being, that all, as much
as may be, should be preserved, it follows, that if there be not enough fully to satisfy
both, viz, for the conqueror's losses, and children's maintenance, he that
hath, and to spare, must remit something of his full satisfaction, and give way to the
pressing and preferable title of those who are in danger to perish without it.
Sect. 184. But supposing the charge and damages
of the war are to be made up to the conqueror, to the utmost farthing; and that the
children of the vanquished, spoiled of all their father's goods, are to be left to starve
and perish; yet the satisfying of what shall, on this score, be due to the conqueror, will
scarce give him a title to any country he shall conquer: for the damages of war can
scarce amount to the value of any considerable tract of land, in any part of the
world, where all the land is possessed, and none lies waste. And if I have not taken away
the conqueror's land, which, being vanquished, it is impossible I should; scarce any other
spoil I have done him can amount to the value of mine, supposing it equally cultivated,
and of an extent any way coming near what I had overrun of his. The destruction of a
year's product or two (for it seldom reaches four or five) is the utmost spoil that
usually can be done: for as to money, and such riches and treasure taken away, these are
none of nature's goods, they have but a fantastical imaginary value: nature has put no
such upon them: they are of no more account by her standard, than the wampompeke of the Americans
to an European prince, or the silver money of Europe would have been
formerly to an American. And five years product is not worth the perpetual
inheritance of land, where all is possessed, and none remains waste, to be taken up
by him that is disseized: which will be easily granted, if one do but take away the
imaginary value of money, the disproportion being more than between five and five hundred;
though, at the same time, half a year's product is more worth than the inheritance, where
there being more land than the inhabitants possess and make use of, any one has
liberty to make use of the waste: but there conquerors take little care to possess
themselves of the lands of the vanquished, No damage therefore, that men in the
state of nature (as all princes and governments are in reference to one another) suffer
from one another, can give a conqueror power to dispossess the posterity of the
vanquished, and turn them out of that inheritance, which ought to be the possession of
them and their descendants to all generations. The conqueror indeed will be apt to think
himself master: and it is the very condition of the subdued not to be able to dispute
their right. But if that be all, it gives no other title than what bare force gives to the
stronger over the weaker: and, by this reason, he that is strongest will have a right to
whatever he pleases to seize on.
Sect. 185. Over those then that joined with him in the
war, and over those of the subdued country that opposed him not, and the posterity even of
those that did, the conqueror, even in a just war, hath, by his conquest, no
right of dominion: they are free from any subjection to him, and if their former
government be dissolved, they are at liberty to begin and erect another to themselves.
Sect. 186. The conqueror, it is true, usually, by the
force he has over them, compels them, with a sword at their breasts, to stoop to his
conditions, and submit to such a government as he pleases to afford them; but the enquiry
is, what right he has to do so? If it be said, they submit by their own consent, then this
allows their own consent to be necessary to give the conqueror a title to rule
over them. It remains only to be considered, whether promises extorted by force,
without right, can be thought consent, and how far they bind. To which I shall say,
they bind not at all; because whatsoever another gets from me by force, I still
retain the right of, and he is obliged presently to restore. He that forces my horse from
me, ought presently to restore him, and I have still a right to retake him. By the same
reason, he that forced a promise from me, ought presently to restore it, i.e.
quit me of the obligation of it; or I may resume it myself, i.e. chuse whether I
will perform it: for the law of nature laying an obligation on me only by the rules she
prescribes, cannot oblige me by the violation of her rules: such is the extorting any
thing from me by force. Nor does it at all alter the case to say, I gave my promise,
no more than it excuses the force, and passes the right, when I put my hand in my pocket,
and deliver my purse myself to a thief, who demands it with a pistol at my breast.
Sect. 187. From all which it follows, that the government
of a conqueror, imposed by force on the subdued, against whom he had no right of war,
or who joined not in the war against him, where he had right, has no obligation
upon them.
Sect. 188. But let us suppose, that all the men of that
community, being all members of the same body politic, may be taken to have joined in that
unjust war wherein they are subdued, and so their lives are at the mercy of the conqueror.
Sect. 189. 1 say, this concerns not their children who are
in their minority: for since a father hath not, in himself, a power over the life or
liberty of his child, no act of his can possibly forfeit it. So that the children,
whatever may have happened to the fathers, are freemen, and the absolute power of the conqueror
reaches no farther than the persons of the men that were subdued by him, and dies with
them: and should he govern them as slaves, subjected to his absolute arbitrary power, he has
no such right of dominion over their children. He can have no power over them
but by their own consent, whatever he may drive them to say or do; and he has no lawfull
authority, whilst force, and not choice, compels them to submission.
Sect. 190. Every man is born with a double right: first,
a right of freedom to his person, which no other man has a power over, but the free
disposal of it lies in himself. Secondly, a right, before any other man, to inherit
with his brethren his father's goods.
Sect. 191. By the first of these, a man is naturally
free from subjection to any government, tho' he be born in a place under its
jurisdiction; but if he disclaim the lawful government of the country he was born in, he
must also quit the right that belonged to him by the laws of it, and the possessions there
descending to him from his ancestors, if it were a government made by their consent.
Sect. 192. By the second, the inhabitants of any
country, who are descended, and derive a title to their estates from those who are
subdued, and had a government forced upon them against their free consents, retain a
right to the possession of their ancestors, though they consent not freely to the
government, whose hard conditions were by force imposed on the possessors of that country:
for the first conqueror never having had a title to the land of that
country, the people who are the descendants of, or claim under those who were forced to
submit to the yoke of a government by constraint, have always a right to shake it off, and
free themselves from the usurpation or tyranny which the sword hath brought in upon them,
till their rulers put them under such a frame of government as they willingly and of
choice consent to. Who doubts but the Grecian Christians, descendants of the ancient
possessors of that country, may justly cast off the Turkish yoke, which they have so long
groaned under, whenever they have an opportunity to do it? For no government can have a
right to obedience from a people who have not freely consented to it; which they can never
be supposed to do, till either they are put in a full state of liberty to chuse their
government and governors, or at least till they have such standing laws, to which they
have by themselves or their representatives given their free consent, and also till they
are allowed their due property, which is so to be proprietors of what they have, that no
body can take away any part of it without their own consent, without which, men under any
government are not in the state of freemen, but are direct slaves under the force of war.
Sect. 193. But granting that the conqueror in a
just war has a right to the estates, as well as power over the persons, of the conquered;
which, it is plain, he hath not: nothing of absolute power will follow from
hence, in the continuance of the government; because the descendants of these being all
freemen, if he grants them estates and possessions to inhabit his country, (without which
it would be worth nothing) whatsoever he grants them, they have, so far as it is granted, property
in. The nature whereof is, that without a man's own consent it cannot be taken from him.
Sect. 194. Their persons are free by a
native right, and their properties, be they more or less, are their own, and at
their own dispose, and not at his; or else it is no property. Supposing the conqueror
gives to one man a thousand acres, to him and his heirs for ever; to another he lets a
thousand acres for his life, under the rent of 501. or 5001. per ann.
has not the one of these a right to his thousand acres for ever, and the other, during his
life, paying the said rent? and hath not the tenant for life a property in all that
he gets over and above his rent, by his labour and industry during the said term,
supposing it be double the rent? Can any one say, the king, or conqueror, after his grant,
may by his power of conqueror take away all, or part of the land from the heirs of one, or
from the other during his life, he paying the rent? or can he take away from either the
goods or money they have got upon the said land, at his pleasure? If he can, then all free
and voluntary contracts cease, and are void in the world; there needs nothing to
dissolve them at any time, but power enough: and all the grants and promises of
men in power are but mockery and collusion: for can there be any thing more ridiculous
than to say, I give you and your's this for ever, and that in the surest and most solemn
way of conveyance can be devised; and yet it is to be understood, that I have right, if I
please, to take it away from you again to morrow?
Sect. 195. 1 will not dispute now whether princes are
exempt from the laws of their country; but this I am sure, they owe subjection to the laws
of God and nature. No body, no power, can exempt them from the obligations of that eternal
law. Those are so great, and so strong, in the case of promises, that omnipotency
itself can be tied by them. Grants, promises, and oaths, are bonds that hold
the Almighty: whatever some flatterers say to princes of the world, who all together,
with all their people joined to them, are, in comparison of the great God, but as a drop
of the bucket, or a dust on the balance, inconsiderable, nothing!
Sect. 196. The short of the case in conquest is
this: the conqueror, if he have a just cause, has a despotical right over the persons of
all, that actually aided, and concurred in the war against him, and a right to make up his
damage and cost out of their labour and estates, so he injure not the right of any other.
Over the rest of the people, if there were any that consented not to the war, and over the
children of the captives themselves, or the possessions of either, he has no power; and so
can have, by virtue of conquest, no lawful title himself to dominion over
them, or derive it to his posterity; but is an aggressor, if he attempts upon their
properties, and thereby puts himself in a state of war against them, and has no better a
right of principality, he, nor any of his successors, than Hingar, or Hubba,
the Danes, had here in England; or Spartacus, had he conquered Italy,
would have had; which is to have their yoke cast off, as soon as God shall give those
under their subjection courage and opportunity to do it. Thus, notwithstanding whatever
title the kings of Assyria had over Judah, by the sword, God assisted Hezekiah
to throw off the dominion of that conquering empire. And the lord was with Hezekiah,
and he prospered; wherefore he went forth, and he rebelled against the king of Assyria,
and served him not, 2 Kings xviii. 7. Whence it is plain, that shaking off a power,
which force, and not right, hath set over any one, though it hath the name of rebellion,
yet is no offence before God, but is that which he allows and countenances, though even
promises and covenants, when obtained by force, have intervened: for it is very probable,
to any one that reads the story of Ahaz and Hezekiah attentively, that the Assyrians
subdued Ahaz, and deposed him, and made Hezekiah king in his father's
lifetime; and that Hezekiah by agreement had done him homage, and paid him tribute
all this time.
The Second Treatise of Government
Chapter 17
John Locke
1690
Sect. 197. AS conquest may be called a foreign usurpation,
so usurpation is a kind of domestic conquest, with this difference, that an usurper
can never have right on his side, it being no usurpation, but where one is
got into the possession of what another has right to. This, so far as it is usurpation,
is a change only of persons, but not of the forms and rules of the government: for if the
usurper extend his power beyond what of right belonged to the lawful princes, or governors
of the commonwealth, it is tyranny added to usurpation.
Sect. 198. In all lawful governments, the designation of
the persons, who are to bear rule, is as natural and necessary a part as the form of the
government itself, and is that which had its establishment originally from the people; the
anarchy being much alike, to have no form of government at all; or to agree, that it shall
be monarchical, but to appoint no way to design the person that shall have the power, and
be the monarch. Hence all commonwealths, with the form of government established, have
rules also of appointing those who are to have any share in the public authority, and
settled methods of conveying the right to them: for the anarchy is much alike, to have no
form of government at all; or to agree that it shall be monarchical, but to appoint no way
to know or design the person that shall have the power, and be the monarch. Whoever gets
into the exercise of any part of the power, by other ways than what the laws of the
community have prescribed, hath no right to be obeyed, though the form of the commonwealth
be still preserved; since he is not the person the laws have appointed, and consequently
not the person the people have consented to. Nor can such an usurper, or any
deriving from him, ever have a title, till the people are both at liberty to consent, and
have actually consented to allow, and confirm in him the power he hath till then usurped.
The Second Treatise of Government
Chapter 18
John Locke
1690
Sect. 199. AS usurpation is the exercise of power, which
another hath a right to; so tyranny is the exercise of power beyond right,
which no body can have a right to. And this is making use of the power any one has in his
hands, not for the good of those who are under it, but for his own private separate
advantage. When the governor, however intitled, makes not the law, but his will, the rule;
and his commands and actions are not directed to the preservation of the properties of his
people, but the satisfaction of his own ambition, revenge, covetousness, or any other
irregular passion.
Sect. 200. If one can doubt this to be truth, or reason,
because it comes from the obscure hand of a subject, I hope the authority of a king will
make it pass with him. King James the first, in his speech to the parliament, 1603, tells
them thus, I will ever prefer the weal of the public, and of the whole commonwealth, in
making of good laws and constitutions, to any particular and private ends of mine;
thinking ever the wealth and weal of the commonwealth to be my greatest weal and worldly
felicity; a point wherein a lawful king doth directly differ from a tyrant: for I do
acknowledge, that the special and greatest point of difference that is between a rightful
king and an usurping tyrant, is this, that whereas the proud and ambitious tyrant doth
think his kingdom and people are only ordained for satisfaction of his desires and
unreasonable appetites, the righteous and just king doth by the contrary acknowledge
himself to be ordained for the procuring of the wealth and property of his people. And
again, in his speech to the parliament, 1609, he hath these words, The king binds
himself by a double oath, to the observation of the fundamental laws of his kingdom;
tacitly, as by being a king, and so bound to protect as well the people, as the laws of
his kingdom; and expressly, by his oath at his coronation, so as every just king, in a
settled kingdom, is bound to observe that paction made to his people, by his laws, in
framing his government agreeable thereunto, according to that paction which God made with
Noah after the deluge. Hereafter, seed-time and harvest, and cold and heat, and summer and
winter, and day and night, shall not cease while the earth remaineth. And therefore a king
governing in a settled kingdom, leaves to be a king, and degenerates into a tyrant, as
soon as he leaves off to rule according to his laws. And a little after, Therefore
all kings that are not tyrants, or perjured, will be glad to bound themselves within the
limits of their laws; and they that persuade them the contrary, are vipers, and pests both
against them and the commonwealth. Thus that learned king, who well understood the
notion of things, makes the difference betwixt a king and a tyrant to
consist only in this, that one makes the laws the bounds of his power, and the good of the
public, the end of his government; the other makes all give way to his own will and
appetite.
Sect. 201. It is a mistake, to think this fault is proper
only to monarchies; other forms of government are liable to it, as well as that: for
wherever the power, that is put in any hands for the government of the people, and the
preservation of their properties, is applied to other ends, and made use of to impoverish,
harass, or subdue them to the arbitrary and irregular commands of those that have it;
there it presently becomes tyranny, whether those that thus use it are one or many. Thus
we read of the thirty tyrants at Athens, as well as one at Syracuse; and the
intolerable dominion of the Decemviri at Rome was nothing better.
Sect. 202. Where-ever law ends, tyranny begins, if
the law be transgressed to another's harm; and whosoever in authority exceeds the power
given him by the law, and makes use of the force he has under his command, to compass that
upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting
without authority, may be opposed, as any other man, who by force invades the right of
another. This is acknowledged in subordinate magistrates. He that hath authority to seize
my person in the street, may be opposed as a thief and a robber, if he endeavours to break
into my house to execute a writ, notwithstanding that I know he has such a warrant, and
such a legal authority, as will impower him to arrest me abroad. And why this should not
hold in the highest, as well as in the most inferior magistrate, I would gladly be
informed. Is it reasonable, that the eldest brother, because he has the greatest part of
his father's estate, should thereby have a right to take away any of his younger brothers
portions? or that a rich man, who possessed a whole country, should from thence have a
right to seize, when he pleased, the cottage and garden of his poor neighbour? The being
rightfully possessed of great power and riches, exceedingly beyond the greatest part of
the sons of Adam, is so far from being an excuse, much less a reason, for rapine
and oppression, which the endamaging another without authority is, that it is a great
aggravation of it: for the exceeding the bounds of authority is no more a right in a
great, than in a petty officer; no more justifiable in a king than a constable; but is so
much the worse in him, in that he has more trust put in him, has already a much greater
share than the rest of his brethren, and is supposed, from the advantages of his
education, employment, and counsellors, to be more knowing in the measures of right and
wrong.
Sect. 203. May the commands then of a prince be
opposed? May he be resisted as often as any one shall find himself aggrieved, and but
imagine he has not right done him? This will unhinge and overturn all polities, and,
instead of government and order, leave nothing but anarchy and confusion.
Sect. 204. To this I answer, that force is to be opposed
to nothing, but to unjust and unlawful force; whoever makes any opposition in any
other case, draws on himself a just condemnation both from God and man; and so no such
danger or confusion will follow, as is often suggested: for,
Sect. 205. First, As, in some countries, the person
of the prince by the law is sacred; and so, whatever he commands or does, his person is
still free from all question or violence, not liable to force, or any judicial censure or
condemnation. But yet opposition may be made to the illegal acts of any inferior officer,
or other commissioned by him; unless he will, by actually putting himself into a state of
war with his people, dissolve the government, and leave them to that defence which belongs
to every one in the state of nature: for of such things who can tell what the end will be?
and a neighbour kingdom has shewed the world an odd example. In all other cases the sacredness
of the person exempts him from all inconveniencies, whereby he is secure, whilst
the government stands, from all violence and harm whatsoever; than which there cannot be a
wiser constitution: for the harm he can do in his own person not being likely to happen
often, nor to extend itself far; nor being able by his single strength to subvert the
laws, nor oppress the body of the people, should any prince have so much weakness, and ill
nature as to be willing to do it, the inconveniency of some particular mischiefs, that may
happen sometimes, when a heady prince comes to the throne, are well recompensed by the
peace of the public, and security of the government, in the person of the chief
magistrate, thus set out of the reach of danger: it being safer for the body, that some
few private men should be sometimes in danger to suffer, than that the head of the
republic should be easily, and upon slight occasions, exposed.
Sect. 206. Secondly, But this privilege, belonging
only to the king's person, hinders not, but they may be questioned, opposed, and resisted,
who use unjust force, though they pretend a commission from him, which the law authorizes
not; as is plain in the case of him that has the king's writ to arrest a man, which is a
full commission from the king; and yet he that has it cannot break open a man's house to
do it, nor execute this command of the king upon certain days, nor in certain places,
though this commission have no such exception in it; but they are the limitations of the
law, which if any one transgress, the king's commission excuses him not: for the king's
authority being given him only by the law, he cannot impower any one to act against the
law, or justify him, by his commission, in so doing. The commission, or command
of any magistrate, where he has no authority, being as void and insignificant, as that
of any private man; the difference between the one and the other, being that the
magistrate has some authority so far, and to such ends, and the private man has none at
all: for it is not the commission, but the authority, that gives the right
of acting; and against the laws there can be no authority. But, notwithstanding
such resistance, the king's person and authority are still both secured, and so no
danger to governor or government.
Sect. 207. Thirdly, Supposing a government wherein
the person of the chief magistrate is not thus sacred; yet this doctrine of the
lawfulness of resisting all unlawful exercises of his power, will not upon
every slight occasion indanger him, or embroil the government: for where the
injured party may be relieved, and his damages repaired by appeal to the law, there can be
no pretence for force, which is only to be used where a man is intercepted from appealing
to the law: for nothing is to be accounted hostile force, but where it leaves not the
remedy of such an appeal; and it is such force alone, that puts him that
uses it into a state of war, and makes it lawful to resist him. A man with a sword
in his hand demands my purse in the high-way, when perhaps I have not twelve pence in my
pocket: this man I may lawfully kill. To another I deliver lool. to hold only whilst I
alight, which he refuses to restore me, when I am got up again, but draws his sword to
defend the possession of it by force, if I endeavour to retake it. The mischief this man
does me is a hundred, or possibly a thousand times more than the other perhaps intended me
(whom I killed before he really did me any); and yet I might lawfully kill the one, and
cannot so much as hurt the other lawfully. The reason whereof is plain; because the one
using force, which threatened my life, I could not have time to appeal to the law
to secure it: and when it was gone, it was too late to appeal. The law could not restore
life to my dead carcass: the loss was irreparable; which to prevent, the law of nature
gave me a right to destroy him, who had put himself into a state of war with me,
and threatened my destruction. But in the other case, my life not being in danger, I may
have the benefit of appealing to the law, and have reparation for my 100l.
that way.
Sect. 208. Fourthly, But if the unlawful acts done
by the magistrate be maintained (by the power he has got), and the remedy which is due by
law, be by the same power obstructed; yet the right of resisting, even in such
manifest acts of tyranny, will not suddenly, or on slight occasions, disturb the
government: for if it reach no farther than some private men's cases, though they have
a right to defend themselves, and to recover by force what by unlawful force is taken from
them; yet the right to do so will not easily engage them in a contest, wherein they are
sure to perish; it being as impossible for one, or a few oppressed men to disturb the
government, where the body of the people do not think themselves concerned in it, as
for a raving mad-man, or heady malcontent to overturn a well settled state; the people
being as little apt to follow the one, as the other.
Sect. 209. But if either these illegal acts have extended
to the majority of the people; or if the mischief and oppression has lighted only on some
few, but in such cases, as the precedent, and consequences seem to threaten all; and they
are persuaded in their consciences, that their laws, and with them their estates,
liberties, and lives are in danger, and perhaps their religion too; how they will be
hindered from resisting illegal force, used against them, I cannot tell. This is an inconvenience,
I confess, that attends all governments whatsoever, when the governors have brought
it to this pass, to be generally suspected of their people; the most dangerous state which
they can possibly put themselves in. wherein they are the less to be pitied, because it is
so easy to be avoided; it being as impossible for a governor, if he really means the good
of his people, and the preservation of them, and their laws together, not to make them see
and feel it, as it is for the father of a family, not to let his children see he loves,
and takes care of them.
Sect. 210. But if all the world shall observe pretences of
one kind, and actions of another; arts used to elude the law, and the trust of prerogative
(which is an arbitrary power in some things left in the prince's hand to do good, not harm
to the people) employed contrary to the end for which it was given: if the people shall
find the ministers and subordinate magistrates chosen suitable to such ends, and favoured,
or laid by, proportionably as they promote or oppose them: if they see several experiments
made of arbitrary power, and that religion underhand favoured, (tho' publicly proclaimed
against) which is readiest to introduce it; and the operators in it supported, as much as
may be; and when that cannot be done, yet approved still, and liked the better: if a long
train of actions shew the councils all tending that way; how can a man any more hinder
himself from being persuaded in his own mind, which way things are going; or from casting
about how to save himself, than he could from believing the captain of the ship he was in,
was carrying him, and the rest of the company, to Algiers, when he found him always
steering that course, though cross winds, leaks in his ship, and want of men and
provisions did often force him to turn his course another way for some time, which he
steadily returned to again, as soon as the wind, weather, and other circumstances would
let him?
The Second Treatise of Government
Chapter 19
John Locke
1690
Sect. 211. HE that will with any clearness speak of the dissolution
of government, ought in the first place to distinguish between the dissolution of
the society and the dissolution of the government. That which makes the
community, and brings men out of the loose state of nature, into one politic society,
is the agreement which every one has with the rest to incorporate, and act as one body,
and so be one distinct common- wealth. The usual, and almost only way whereby this
union is dissolved, is the inroad of foreign force mak ing a conquest upon them: for
in that case, (not being able to maintain and support themselves, as one intire and
independent body) the union belonging to that body which consisted therein, must
necessarily cease, and so every one return to the state he was in before, with a liberty
to shift for himself, and provide for his own safety, as he thinks fit, in some other
society. Whenever the society is dissolved, it is certain the government of that
society cannot remain. Thus conquerors swords often cut up governments by the roots, and
mangle societies to pieces, separating the subdued or scattered multitude from the
protection of, and dependence on, that society which ought to have preserved them from
violence. The world is too well instructed in, and too forward to allow of, this way of
dissolving of governments, to need any more to be said of it; and there wants not much
argument to prove, that where the society is dissolved, the government cannot
remain; that being as impossible, as for the frame of an house to subsist when the
materials of it are scattered and dissipated by a whirl-wind, or jumbled into a confused
heap by an earthquake.
Sect. 212. Besides this over-turning from without,
governments are dissolved from within, First, When the legislative is altered.
Civil society being a state of peace, amongst those who are of it, from whom the state of
war is excluded by the umpirage, which they have provided in their legislative, for the
ending all differences that may arise amongst any of them, it is in their legislative,
that the members of a commonwealth are united, and combined together into one coherent
living body. This is the soul that gives form, life, and unity to the
common-wealth: from hence the several members have their mutual influence, sympathy, and
connexion: and therefore, when the legislative is broken, or dissolved, dissolution
and death follows: for the essence and union of the society consisting in having
one will, the legislative, when once established by the majority, has the declaring, and
as it were keeping of that will. The constitution of the legislative is the first
and fundamental act of society, whereby provision is made for the continuation of their
union, under the direction of persons, and bonds of laws, made by persons authorized
thereunto, by the consent and appointment of the people, without which no one man, or
number of men, amongst them, can have authority of making laws that shall be binding to
the rest. When any one, or more, shall take upon them to make laws, whom the people have
not appointed so to do, they make laws without authority, which the people are not
therefore bound to obey; by which means they come again to be out of subjection, and may
constitute to themselves a new legislative, as they think best, being in full
liberty to resist the force of those, who without authority would impose any thing upon
them. Every one is at the disposure of his own will, when those who had, by the delegation
of the society, the declaring of the public will, are excluded from it, and others usurp
the place, who have no such authority or delegation.
Sect. 213. This being usually brought about by such in the
commonwealth who misuse the power they have; it is hard to consider it aright, and know at
whose door to lay it, without knowing the form of government in which it happens. Let us
suppose then the legislative placed in the concurrence of three distinct persons. 1. A
single hereditary person, having the constant, supreme, executive power, and with it the
power of convoking and dissolving the other two within certain periods of time. 2. An
assembly of hereditary nobility. 3. An assembly of representatives chosen, pro tempore,
by the people. Such a form of government supposed, it is evident,
Sect. 214. First, That when such a single person,
or prince, sets up his own arbitrary will in place of the laws, which are the will of the
society, declarad by the legislative, then the legislative is changed: for that
being in effect the legislative, whose rules and laws are put in execution, and required
to be obeyed; when other laws are set up, and other rules pretended, and inforced, than
what the legislative, constituted by the society, have enacted, it is plain that the legislative
is changed. Whoever introduces new laws, not being thereunto authorized by the
fundamental appointment of the society, or subverts the old, disowns and overturns the
power by which they were made, and so sets up a new legislative.
Sect. 215. Secondly, When the prince hinders the
legislative from assembling in its due time, or from acting freely, pursuant to those ends
for which it was constituted, the legislative is altered: for it is not a certain
number of men, no, nor their meeting, unless they have also freedom of debating, and
leisure of perfecting, what is for the good of the society, wherein the legislative
consists: when these are taken away or altered, so as to deprive the society of the due
exercise of their power, the legislative is truly altered; for it is not
names that constitute governments, but the use and exercise of those powers that were
intended to accompany them; so that he, who takes away the freedom, or hinders the acting
of the legislative in its due seasons, in effect takes away the legislative, and
puts an end to the government.
Sect. 216. Thirdly, When, by the arbitrary power of
the prince, the electors, or ways of election, are altered, without the consent, and
contrary to the common interest of the people, there also the legislative is altered:
for, if others than those whom the society hath authorized thereunto, do chuse, or in
another way than what the society hath prescribed, those chosen are not the legislative
appointed by the people.
Sect. 217. Fourthly, The delivery also of the
people into the subjection of a foreign power, either by the prince, or by the
legislative, is certainly a change of the legislative, and so a dissolution of
the government: for the end why people entered into society being to be preserved one
intire, free, independent society, to be governed by its own laws; this is lost, whenever
they are given up into the power of another.
Sect. 218. Why, in such a constitution as this, the dissolution
of the government in these cases is to be imputed to the prince, is evident; because
he, having the force, treasure and offices of the state to employ, and often persuading
himself, or being flattered by others, that as supreme magistrate he is uncapable of
controul; he alone is in a condition to make great advances toward such changes, under
pretence of lawful authority, and has it in his hands to terrify or suppress opposers, as
factious, seditious, and enemies to the government: whereas no other part of the
legislative, or people, is capable by themselves to attempt any alteration of the
legislative, without open and visible rebellion, apt enough to be taken notice of, which,
when it prevails, produces effects very little different from foreign conquest. Besides,
the prince in such a form of government, having the power of dissolving the other parts of
the legislative, and thereby rendering them private persons, they can never in opposition
to him, or without his concurrence, alter the legislative by a law, his consent being
necessary to give any of their decrees that sanction. But yet so far as the other parts of
the Legislative any way contribute to any attempt upon the Government, and do either
promote, or not, what lies in them, hinder such designs, they are guilty, and partake in
this, which is certainly the greatest Crime Men can be guilty of one towards another.
Sect. 219. There is one way more whereby such a government
may be dissolved, and that is, when he who has the Supream Executive power, neglects and
abandons that charge, so that the laws already made can no longer be put in execution.
This is demonstratively to reduce all to anarchy, and so effectually to dissolve the
government: for laws not being made for themselves, but to be, by their execution, the
bonds of the society, to keep every part of the body politic in its due place and
function; when that totally ceases, the government visibly ceases, and the
people become a confused multitude, without order or connexion. Where there is no longer
the administration of justice, for the securing of men's rights, nor any remaining power
within the community to direct the force, or provide for the necessities of the public,
there certainly is no government left. Where the laws cannot be executed, it is all
one as if there were no laws; and a government without laws is, I suppose, a mystery in
politics, unconceivable to human capacity, and inconsistent with human society.
Sect. 220. In these and the like cases, when the
government is dissolved, the people are at liberty to provide for themselves, by
erecting a new legislative, differing from the other, by the change of persons, or form,
or both, as they shall find it most for their safety and good: for the society can never,
by the fault of another, lose the native and original right it has to preserve itself,
which can only be done by a settled legislative, and a fair and impartial execution of the
laws made by it. But the state of mankind is not so miserable that they are not capable of
using this remedy, till it be too late to look for any. To tell people they may
provide for themselves, by erecting a new legislative, when by oppression, artifice,
or being delivered over to a foreign power, their old one is gone, is only to tell them,
they may expect relief when it is too late, and the evil is past cure. This is in effect
no more than to bid them first be slaves, and then to take care of their liberty; and when
their chains are on, tell them, they may act like freemen. This, if barely so, is rather
mockery than relief; and men can never be secure from tyranny, if there be no means to
escape it till they are perfectly under it: and therefore it is, that they have not only a
right to get out of it, but to prevent it.
Sect. 221. There is therefore, secondly, another way
whereby governments are dissolved, and that is, when the legislative, or the
prince, either of them, act contrary to their trust. First, The legislative acts
against the trust reposed in them, when they endeavour to invade the property of the
subject, and to make themselves, or any part of the community, masters, or arbitrary
disposers of the lives, liberties, or fortunes of the people.
Sect. 222. The reason why men enter into society, is the
preservation of their property; and the end why they chuse and authorize a legislative,
is, that there may be laws made, and rules set, as guards and fences to the properties of
all the members of the society, to limit the power, and moderate the dominion, of every
part and member of the society: for since it can never be supposed to be the will of the
society, that the legislative should have a power to destroy that which every one designs
to secure, by entering into society, and for which the people submitted themselves to
legislators of their own making; whenever the legislators endeavour to take away, and
destroy the property of the people, or to reduce them to slavery under arbitrary
power, they put themselves into a state of war with the people, who are thereupon absolved
from any farther obedience, and are left to the common refuge, which God hath provided for
all men, against force and violence. Whensoever therefore the legislative shall
transgress this fundamental rule of society; and either by ambition, fear, folly or
corruption, endeavour to grasp themselves, or put into the hands of any other,
an absolute power over the lives, liberties, and estates of the people; by this
breach of trust they forfeit the power the people had put into their hands for
quite contrary ends, and it devolves to the people, who. have a right to resume their
original liberty, and, by the establishment of a new legislative, (such as they shall
think fit) provide for their own safety and security, which is the end for which they are
in society. What I have said here, concerning the legislative in general, holds true also
concerning the supreme executor, who having a double trust put in him, both to have
a part in the legislative, and the supreme execution of the law, acts against both, when
he goes about to set up his own arbitrary will as the law of the society. He acts
also contrary to his trust, when he either employs the force, treasure, and
offices of the society, to corrupt the representatives, and gain them to his
purposes; or openly preengages the electors, and prescribes to their choice, such,
whom he has, by solicitations, threats, promises, or otherwise, won to his designs; and
employs them to bring in such, who have promised before-hand what to vote, and what to
enact. Thus to regulate candidates and electors, and new-model the ways of election,
what is it but to cut up the government by the roots, and poison the very fountain of
public security? for the people having reserved to themselves the choice of their representatives,
as the fence to their properties, could do it for no other end, but that they might always
be freely chosen, and so chosen, freely act, and advise, as the necessity of the
common-wealth, and the public good should, upon examination, and mature debate, be judged
to require. This, those who give their votes before they hear the debate, and have weighed
the reasons on all sides, are not capable of doing. To prepare such an assembly as this,
and endeavour to set up the declared abettors of his own will, for the true representatives
of the people, and the law-makers of the society, is certainly as great a breach of
trust, and as perfect a declaration of a design to subvert the government, as is
possible to be met with. To which, if one shall add rewards and punishments visibly
employed to the same end, and all the arts of perverted law made use of, to take off and
destroy all that stand in the way of such a design, and will not comply and consent to
betray the liberties of their country, it will be past doubt what is doing. What power
they ought to have in the society, who thus employ it contrary to the trust went along
with it in its first institution, is easy to determine; and one cannot but see, that he,
who has once attempted any such thing as this, cannot any longer be trusted.
Sect. 223. To this perhaps it will be said, that the
people being ignorant, and always discontented, to lay the foundation of government in the
unsteady opinion and uncertain humour of the people, is to expose it to certain ruin; and no
government will be able long to subsist, if the people may set up a new legislative,
whenever they take offence at the old one. To this I answer, Quite the contrary. People
are not so easily got out of their old forms, as some are apt to suggest. They are hardly
to be prevailed with to amend the acknowledged faults in the frame they have been
accustomed to. And if there be any original defects, or adventitious ones introduced by
time, or corruption; it is not an easy thing to get them changed, even when all the world
sees there is an opportunity for it. This slowness and aversion in the people to quit
their old constitutions, has, in the many revolutions which have been seen in this
kingdom, in this and former ages, still kept us to, or, after some interval of fruitless
attempts, still brought us back again to our old legislative of king, lords and commons:
and whatever provocations have made the crown be taken from some of our princes heads,
they never carried the people so far as to place it in another line.
Sect. 224. But it will be said, this hypothesis
lays a ferment for frequent rebellion. To which I answer, First, No more
than any other hypothesis: for when the people are made miserable,
and find themselves exposed to the ill usage of arbitrary power, cry up their
governors, as much as you will, for sons of Jupiter; let them be sacred and divine,
descended, or authorized from heaven; give them out for whom or what you please, the same
will happen. The people generally ill treated, and contrary to right, will be ready
upon any occasion to ease themselves of a burden that sits heavy upon them. They will
wish, and seek for the opportunity, which in the change, weakness and accidents of human
affairs, seldom delays long to offer itself. He must have lived but a little while in the
world, who has not seen examples of this in his time; and he must have read very little,
who cannot produce examples of it in all sorts of governments in the world.
Sect. 225. Secondly, I answer, such revolutions happen
not upon every little mismanagement in public affairs. Great mistakes in the
ruling part, many wrong and inconvenient laws, and all the slips of human frailty,
will be born by the people without mutiny or murmur. But if a long train of abuses,
prevarications and artifices, all tending the same way, make the design visible to the
people, and they cannot but feel what they lie under, and see whither they are going; it
is not to be wondered, that they should then rouze themselves, and endeavour to put the
rule into such hands which may secure to them the ends for which government was at first
erected; and without which, ancient names, and specious forms, are so far from being
better, that they are much worse, than the state of nature, or pure anarchy; the
inconveniencies being all as great and as near, but the remedy farther off and more
difficult.
Sect. 226. Thirdly, I answer, that this doctrine
of a power in the people of providing for their safety a-new, by a new legislative, when
their legislators have acted contrary to their trust, by invading their property, is the
best fence against rebellion, and the probablest means to hinder it: for rebellion
being an opposition, not to persons, but authority, which is founded only in the
constitutions and laws of the government; those, whoever they be, who by force break
through, and by force justify their violation of them, are truly and properly rebels:
for when men, by entering into society and civil-government, have excluded force, and
introduced laws for the preservation of property, peace, and unity amongst themselves,
those who set up force again in opposition to the laws, do rebellare, that is,
bring back again the state of war, and are properly rebels: which they who are in power,
(by the pretence they have to authority, the temptation of force they have in their hands,
and the flattery of those about them) being likeliest to do; the properest way to prevent
the evil, is to shew them the danger and injustice of it, who are under the greatest
temptation to run into it.
Sect. 227. In both the fore-mentioned cases, when either
the legislative is changed, or the legislators act contrary to the end for which they were
constituted; those who are guilty are guilty of rebellion: for if any one by force
takes away the established legislative of any society, and the laws by them made, pursuant
to their trust, he thereby takes away the umpirage, which every one had consented to, for
a peaceable decision of all their controversies, and a bar to the state of war amongst
them. They, who remove, or change the legislative, take away this decisive power, which no
body can have, but by the appointment and consent of the people; and so destroying the
authority which the people did, and no body else can set up, and introducing a power which
the people hath not authorized, they actually introduce a state of war, which is
that of force without authority: and thus, by removing the legislative established by the
society, (in whose decisions the people acquiesced and united, as to that of their own
will) they untie the knot, and expose the people anew to the state of war, And if
those, who by force take away the legislative, are rebels, the legislators
themselves, as has been shewn, can be no less esteemed so; when they, who were set up for
the protection, and preservation of the people, their liberties and properties, shall by
force invade and endeavour to take them away; and so they putting themselves into a state
of war with those who made them the protectors and guardians of their peace, are properly,
and with the greatest aggravation, rebellantes, rebels.
Sect. 228. But if they, who say it lays a foundation
for rebellion, mean that it may occasion civil wars, or intestine broils, to tell the
people they are absolved from obedience when illegal attempts are made upon their
liberties or properties, and may oppose the unlawful violence of those who were their
magistrates, when they invade their properties contrary to the trust put in them; and that
therefore this doctrine is not to be allowed, being so destructive to the peace of the
world: they may as well say, upon the same ground, that honest men may not oppose robbers
or pirates, because this may occasion disorder or bloodshed. If any mischief come
in such cases, it is not to be charged upon him who defends his own right, but on
him that invades his neighbours. If the innocent honest man must quietly
quit all he has, for peace sake, to him who will lay violent hands upon it, I desire it
may be considered, what a kind of peace there will be in the world, which consists only in
violence and rapine; and which is to be maintained only for the benefit of robbers and
oppressors. VVho would not think it an admirable peace betwix the mighty and the mean,
when the lamb, without resistance, yielded his throat to be torn by the imperious wolf? Polyphemus's
den gives us a perfect pattern of such a peace, and such a government, wherein Ulysses
and his companions had nothing to do, but quietly to suffer themselves to be devoured. And
no doubt Ulysses, who was a prudent man, preached up passive obedience,
and exhorted them to a quiet submission, by representing to them of what concernment peace
was to mankind; and by shewing the inconveniences might happen, if they should offer to
resist Polyphemus, who had now the power over them.
Sect. 229. The end of government is the good of mankind;
and which is best for mankind, that the people should be always exposed to the
boundless will of tyranny, or that the rulers should be sometimes liable to be opposed,
when they grow exorbitant in the use of their power, and employ it for the destruction,
and not the preservation of the properties of their people?
Sect. 230. Nor let any one say, that mischief can arise
from hence, as often as it shall please a busy head, or turbulent spirit, to desire the
alteration of the government. It is true, such men may stir, whenever they please; but it
will be only to their own just ruin and perdition: for till the mischief be grown general,
and the ill designs of the rulers become visible, or their attempts sensible to the
greater part, the people, who are more disposed to suffer than right themselves by
resistance, are not apt to stir. The examples of particular injustice, or oppression of
here and there an unfortunate man, moves them not. But if they universally have a
persuation, grounded upon manifest evidence, that designs are carrying on against their
liberties, and the general course and tendency of things cannot but give them strong
suspicions of the evil intention of their governors, who is to be blamed for it? Who can
help it, if they, who might avoid it, bring themselves into this suspicion? Are the people
to be blamed, if they have the sense of rational creatures, and can think of things no
otherwise than as they find and feel them? And is it not rather their fault,
who put things into such a posture, that they would not have them thought to be as they
are? I grant, that the pride, ambition, and turbulency of private men have sometimes
caused great disorders in commonwealths, and factions have been fatal to states and
kingdoms. But whether the mischief hath oftener begun in the peoples
wantonness, and a desire to cast off the lawful authority of their rulers, or in
the rulers insolence, and endeavours to get and exercise an arbitrary power over their
people; whether oppression, or disobedience, gave the first rise to the disorder, I leave
it to impartial history to determine. This I am sure, whoever, either ruler or subject, by
force goes about to invade the rights of either prince or people, and lays the foundation
for overturning the constitution and frame of any just government, is highly
guilty of the greatest crime, I think, a man is capable of, being to answer for all those
mischiefs of blood, rapine, and desolation, which the breaking to pieces of governments
bring on a country. And he who does it, is justly to be esteemed the common enemy and pest
of mankind, and is to be treated accordingly.
Sect. 231. That subjects or foreigners,
attempting by force on the properties of any people, may be resisted with force, is
agreed on all hands. But that magistrates, doing the same thing, may be resisted,
hath of late been denied: as if those who had the greatest privileges and advantages by
the law, had thereby a power to break those laws, by which alone they were set in a better
place than their brethren: whereas their offence is thereby the greater, both as being
ungrateful for the greater share they have by the law, and breaking also that trust, which
is put into their hands by their brethren.
Sect. 232. Whosoever uses force without right, as
every one does in society, who does it without law, puts himself into a state of war
with those against whom he so uses it; and in that state all former ties are cancelled,
all other rights cease, and every one has a right to defend himself, and to
resist the aggressor. This is so evident, that Barclay himself, that great
assertor of the power and sacredness of kings, is forced to confess, That it is lawful for
the people, in some cases, to resist their king; and that too in a chapter, wherein he
pretends to shew, that the divine law shuts up the people from all manner of rebellion.
Whereby it is evident, even by his own doctrine, that, since they may in some cases
resist, all resisting of princes is not rebellion. His words are these. Quod siquis
dicat, Ergone populus tyrannicae crudelitati & furori jugulum semper praebebit? Ergone
multitude civitates suas fame, ferro, & flamma vastari, seque, conjuges, & liberos
fortunae ludibrio & tyranni libidini exponi, inque omnia vitae pericula omnesque
miserias & molestias a rege deduci patientur? Num illis quod omni animantium generi
est a natura tributum, denegari debet, ut sc. vim vi repellant, seseq; ab injuria,
tueantur? Huic breviter responsum sit, Populo universo negari defensionem, quae juris
naturalis est, neque ultionem quae praeter naturam est adversus regem concedi debere.
Quapropter si rex non in singulares tantum personas aliquot privatum odium exerceat, sed
corpus etiam reipublicae, cujus ipse caput est, i.e. totum populum, vel insignem aliquam
ejus partem immani & intoleranda saevitia seu tyrannide divexet; populo, quidem hoc
casu resistendi ac tuendi se ab injuria potestas competit, sed tuendi se tantum, non enim
in principem invadendi: & restituendae injuriae illatae, non recedendi a debita
reverentia propter acceptam injuriam. Praesentem denique impetum propulsandi non vim
praeteritam ulciscenti jus habet. Horum enim alterum a natura est, ut vitam scilicet
corpusque tueamur. Alterum vero contra naturam, ut inferior de superiori supplicium sumat.
Quod itaque populus malum, antequam factum sit, impedire potest, ne fiat, id postquam
factum est, in regem authorem sceleris vindicare non potest: populus igitur hoc amplius
quam privatus quispiam habet: quod huic, vel ipsis adversariis judicibus, excepto
Buchanano, nullum nisi in patientia remedium superest. Cum ille si intolerabilis tyrannus
est (modicum enim ferre omnino debet) resistere cum reverentia possit, Barclay contra
Monarchom. 1. iii. c. 8. In English thus:
Sect. 233. But if any one should ask, Must the people
then always lay themselves open to the cruelty and rage of tyranny? Must they see their
cities pillaged, and laid in ashes, their wives and children exposed to the tyrant's lust
and fury, and themselves and families reduced by their king to ruin, and all the miseries
of want and oppression, and yet sit still? Must men alone be debarred the common privilege
of opposing force with force, which nature allows so freely to all other creatures for
their preservation from injury? I answer: Self-defence is a part of the law of nature; nor
can it be denied the community, even against the king himself: but to revenge themselves
upon him, must by no means be allowed them; it being not agreeable to that law. Wherefore
if the king shall shew an hatred, not only to some particular persons, but sets himself
against the body of the common-wealth, whereof he is the head, and shall, with intolerable
ill usage, cruelly tyrannize over the u7hole, or a considerable part of the people, in
this case the people have a right to resist and defend themselves from injury: but it must
be with this caution, that they only defend themselves, but do not attack their prince:
they may repair the damages received, but must not for any provocation exceed the bounds
of due reverence and respect. They may repulse the present attempt, but must not revenge
past violences: for it is natural for us to defend life and limb, but that an inferior
should punish a superior, is against nature. The mischief which is designed them, the
people may prevent before it be done; but when it is done, they must not revenge it on the
king, though author of the villany. This therefore is the privilege of the people in
general, above what any private person hath; that particular men are allowed by our
adversaries themselves (Buchanan only excepted) to have no other remedy but
patience; but the body of the people may with respect resist intolerable tyranny; for when
it is but moderate, they ought to endure it.
Sect. 234. Thus far that great advocate of monarchical
power allows of resistance.
Sect. 235. It is true, he has annexed two limitations to
it, to no purpose: First, He says, it must be with reverence. Secondly, It
must be without retribution, or punishment; and the reason he gives is, because an
inferior cannot punish a superior. First, How to resist force without
striking again, or how to strike with reverence, will need some skill to make
intelligible. He that shall oppose an assault only with a shield to receive the blows, or
in any more respectful posture, without a sword in his hand, to abate the confidence and
force of the assailant, will quickly be at an end of his resistance, and will find
such a defence serve only to draw on himself the worse usage. This is as ridiculous a way
of resisting, as Juvenal thought it of fighting; ubi tu pulsas, ego
vapulo tantum. And the success of the combat will be unavoidably the same he there
describes it: ----- Libertas pauperis haec est: Pulsatus rogat, & pugnis concisus,
adorat, Ut liceat paucis cum dentibus inde reverti.* This will always be the event of
such an imaginary resistance, where men may not strike again. He therefore who
may resist, must be allowed to strike. And then let our author, or any body else, join
a knock on the head, or a cut on the face, with as much reverence and respect
as he thinks fit. He that can reconcile blows and reverence, may, for aught I know, desire
for his pains, a civil, respectful cudgeling where-ever he can meet with it. Secondly, As
to his second, An inferior cannot punish a superior; that is true, generally
speaking, whilst he is his superior. But to resist force with force, being the state of
war that levels the parties, cancels all former relation of reverence, respect,
and superiority: and then the odds that remains, is, that he, who opposes the
unjust agressor, has this superiority over him, that he has a right, when he
prevails, to punish the offender, both for the breach of the peace, and all the evils that
followed upon it. Barclay therefore, in another place, more coherently to himself,
denies it to be lawful to resist a king in any case. But he there assigns two
cases, whereby a king may un-king himself. His words are, Quid ergo, nulline casus
incidere possunt quibus populo sese erigere atque in regem impotentius dominantem arma
capere & invadere jure suo suaque authoritate liceat? Nulli certe quamdiu rex manet.
Semper enim ex divinis id obstat, Regem honorificato; & qui potestati resistit,
Dei ordinationi resisit: non alias igitur in eum populo potestas est quam si id
committat propter quod ipso jure rex esse desinat. Tunc enim se ipse principatu exuit
atque in privatis constituit liber: hoc modo populus & superior efficitur, reverso ad
eum sc. jure illo quod ante regem inauguratum in interregno habuit. At sunt paucorum
generum commissa ejusmodi quae hunc effectum pariunt. At ego cum plurima animo perlustrem,
duo tantum invenio, duos, inquam, casus quibus rex ipso facto ex rege non regem se facit
& omni honore & dignitate regali atque in subditos potestate destituit; quorum
etiam meminit Winzerus. Horum unus est, Si regnum disperdat, quemadmodum de Nerone
fertur, quod is nempe senatum populumque Romanum, atque adeo urbem ipsam ferro flammaque
vastare, ac novas sibi sedes quaerere decrevisset. Et de Caligula, quod palam denunciarit
se neque civem neque principem senatui amplius fore, inque animo habuerit interempto
utriusque ordinis electissimo quoque Alexandriam commigrare, ac ut populum uno ictu
interimeret, unam ei cervicem optavit. Talia cum rex aliquis meditator & molitur
serio, omnem regnandi curam & animum ilico abjicit, ac proinde imperium in subditos
amittit, ut dominus servi pro derelicto habiti dominium.
(*Translation: "I writhe with the blows you put upon
me... This is a poor man’s freedom; the more he is beaten, the more he implores, and
he prostrates himself as he goes down in the struggle, so that he may come back a little
with his teeth.")
Sect. 236. Alter casus est, Si rex in alicujus
clientelam se contulit, ac regnum quod liberum a majoribus & populo traditum accepit,
alienae ditioni mancipavit. Nam tunc quamvis forte non ea mente id agit populo plane ut
incommodet: tamen quia quod praecipuum est regiae dignitatis amifit, ut summus scilicet in
regno secundum Deum sit, & solo Deo inferior, atque populum etiam totum ignorantem vel
invitum, cujus libertatem sartam & tectam conservare debuit, in alterius gentis
ditionem & potestatem dedidit; hac velut quadam regni ab alienatione effecit, ut nec
quod ipse in regno imperium habuit retineat, nec in eum cui collatum voluit, juris
quicquam transferat; atque ita eo facto liberum jam & suae potestatis populum
relinquit, cujus rei exemplum unum annales Scotici suppeditant. Barclay contra
Monarchom. 1. iii. c. 16. Which in English runs thus:
Sect. 237. What then, can there no case happen wherein
the people may of right, and by their own authority, help themselves, take arms, and set
upon their king, imperiously domineering over them? None at all, whilst he remains a king.
Honour the king, and he that resists the power, resists the ordinance of God; are
divine oracles that will never permit it, The people therefore can never come by a power
over him, unless he does something that makes him cease to be a king: for then he divests
himself of his crown and dignity, and returns to the state of a private man, and the
people become free and superior, the power which they had in the interregnum,
before they crowned him king, devolving to them again. But there are but few miscarriages
which bring the matter to this state. After considering it well on all sides, I can find
but two. Two cases there are, I say, whereby a king, ipso facto, becomes no
king, and loses all power and regal authority over his people; which are also taken notice
of by Winzerus. The first is, If he endeavour to overturn the government, that is,
if he have a purpose and design to ruin the kingdom and commonwealth, as it is recorded of
Nero, that he resolved to cut off the senate and people of Rome, lay the
city waste with fire and sword, and then remove to some other place. And of Caligula,
that he openly declared, that he would be no longer a head to the people or senate, and
that he had it in his thoughts to cut off the worthiest men of both ranks, and then retire
to Alexandria: and he wisht that the people had but one neck, that he might dispatch them
all at a blow, Such designs as these, when any king harbours in his thoughts, and
seriously promotes, he immediately gives up all care and thought of the common-wealth; and
consequently forfeits the power of governing his subjects, as a master does the dominion
over his slaves whom he hath abandoned.
Sect. 238. The other case is, When a king makes himself
the dependent of another, and subjects his kingdom which his ancestors left him, and the
people put free into his hands, to the dominion of another: for however perhaps it may not
be his intention to prejudice the people; yet because he has hereby lost the principal
part of regal dignity, viz. to be next and immediately under God, supreme in his
kingdom; and also because he betrayed or forced his people, whose liberty he ought to have
carefully preserved, into the power and dominion of a foreign nation. By this, as. it
were, alienation of his kingdom, he himself loses the power he had in it before, without
transferring any the least right to those on whom he would have bestowed it; and so by
this act sets the people free, and leaves them at their own disposal. One example of this
is to be found in the Scotch Annals.
Sect. 239. In these cases Barclay, the great
champion of absolute monarchy, is forced to allow, that a king may be resisted, and
ceases to be a king. That is, in short, not to multiply cases, in whatsoever he has
no authority, there he is no king, and may be resisted: for wheresoever
the authority ceases, the king ceases too, and becomes like other men who have no
authority. And these two cases he instances in, differ little from those above mentioned,
to be destructive to governments, only that he has omitted the principle from which his
doctrine flows: and that is, the breach of trust, in not preserving the form of government
agreed on, and in not intending the end of government itself, which is the public good and
preservation of property. When a king has dethroned himself, and put himself in a state of
war with his people, what shall hinder them from prosecuting him who is no king, as they
would any other man, who has put himself into a state of war with them, Barclay,
and those of his opinion, would do well to tell us. This farther I desire may be taken
notice of out of Barclay, that he says, The mischief that is designed them, the people
may prevent before it be done: whereby he allows resistance when tyranny is but
in design. Such designs as these (says he) when any king harbours in his
thoughts and seriously promotes, he immediately gives up all care and thought of the
common-wealth; so that, according to him, the neglect of the public good is to be
taken as an evidence of such design, or at least for a sufficient cause of resistance.
And the reason of all, he gives in these words, Because he betrayed or forced his
people, whose liberty he ought carefully to have preserved. What he adds, into the
power and dominion of a foreign nation, signifies nothing, the fault and forfeiture
lying in the loss of their liberty, which he ought to have preserved, and
not in any distinction of the persons to whose dominion they were subjected. The peoples
right is equally invaded, and their liberty lost, whether they are made slaves to any of
their own, or a foreign nation; and in this lies the injury, and against this only
have they the right of defence. And there are instances to be found in all countries,
which shew, that it is not the change of nations in the persons of their governors, but
the change of government, that gives the offence. Bilson, a bishop of our church,
and a great stickler for the power and prerogative of princes, does, if I mistake not, in
his treatise of Christian subjection, acknowledge, that princes may forfeit
their power, and their title to the obedience of their subjects; and if there needed
authority in a case where reason is so plain, I could send my reader to Bracton, Fortescue,
and the author of the Mirrour, and others, writers that cannot be suspected to be ignorant
of our government, or enemies to it. But I thought Hooker alone might be enough to
satisfy those men, who relying on him for their ecclesiastical polity, are by a strange
fate carried to deny those principles upon which he builds it. Whether they are herein
made the tools of cunninger workmen, to pull down their own fabric, they were best look.
This I am sure, their civil policy is so new, so dangerous, and so destructive to both
rulers and people, that as former ages never could bear the broaching of it; so it may be
hoped, those to come, redeemed from the impositions of these Egyptian
under-taskmasters, will abhor the memory of such servile flatterers, who, whilst it seemed
to serve their turn, resolved all government into absolute tyranny, and would have all men
born to, what their mean souls fitted them for, slavery.
Sect. 240. Here, it is like, the common question will be
made, Who shall be judge, whether the prince or legislative act contrary to their
trust? This, perhaps, ill-affected and factious men may spread amongst the people, when
the prince only makes use of his due prerogative. To this I reply, The people shall be
judge; for who shall be judge whether his trustee or deputy acts well, and
according to the trust reposed in him, but he who deputes him, and must, by having deputed
him, have still a power to discard him, when he fails in his trust? If this be reasonable
in particular cases of private men, why should it be otherwise in that of the greatest
moment, where the welfare of millions is concerned, and also where the evil, if not
prevented, is greater, and the redress very difficult, dear, and dangerous?
Sect. 241. But farther, this question, (Who shall be
judge?) cannot mean, that there is no judge at all: for where there is no judicature
on earth, to decide controversies amongst men, God in heaven is judge. He
alone, it is true, is judge of the right. But every man is judge for
himself, as in all other cases, so in this, whether another hath put himself into a state
of war with him, and whether he should appeal to the Supreme Judge, as Jeptha did.
Sect. 242. If a controversy arise betwixt a prince and
some of the people, in a matter where the law is silent, or doubtful, and the thing be of
great consequence, I should think the proper umpire, in such a case, should be the
body of the people: for in cases where the prince hath a trust reposed in him, and
is dispensed from the common ordinary rules of the law; there, if any men find themselves
aggrieved, and think the prince acts contrary to, or beyond that trust, who so proper to judge
as the body of the people, (who, at first, lodged that trust in him) how far they
meant it should extend? But if the prince, or whoever they be in the administration,
decline that way of determination, the appeal then lies no where but to heaven; force
between either persons, who have no known superior on earth, or which permits no appeal to
a judge on earth, being properly a state of war, wherein the appeal lies only to heaven;
and in that state the injured party must judge for himself, when he will think fit
to make use of that appeal, and put himself upon it.
Sect. 243. To conclude, The power that every individual
gave the society, when he entered into it, can never revert to the individuals again,
as long as the society lasts, but will always remain in the community; because without
this there can be no community, no common-wealth, which is contrary to the original
agreement: so also when the society hath placed the legislative in any assembly of men, to
continue in them and their successors, with direction and authority for providing such
successors, the legislative can never revert to the people whilst that government
lasts; because having provided a legislative with power to continue for ever, they have
given up their political power to the legislative, and cannot resume it. But if they have
set limits to the duration of their legislative, and made this supreme power in any
person, or assembly, only temporary; or else, when by the miscarriages of those in
authority, it is forfeited; upon the forfeiture, or at the determination of the time set, it
reverts to the society, and the people have a right to act as supreme, and continue
the legislative in themselves; or erect a new form, or under the old form place it in new
hands, as they think good.
