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BOOK
II, CHAPTER 1 § 1.
It having been shown in the foregoing discourse: Firstly. That Adam
had not, either by natural right of fatherhood or by positive donation
from God, any such authority over his children, nor dominion over the
world, as is pretended. Secondly. That if he
had, his heirs yet had no right to it. Thirdly. That if his
heirs had, there being no law of Nature nor positive law of God that
determines which is the right heir in all cases that may arise, the right
of succession, and consequently of bearing rule, could not have been
certainly determined. Fourthly. That if
even that had been determined, yet the knowledge of which is the eldest
line of Adam's posterity being so long since utterly lost, that in the
races of mankind and families of the world, there remains not to one above
another the least pretence to be the eldest house, and to have the right
of inheritance. All these promises
having, as I think, been clearly made out, it is impossible that the
rulers now on earth should make any benefit, or derive any the least
shadow of authority from that which is held to be the fountain of all
power, "Adam's private dominion and paternal jurisdiction"; so
that he that will not give just occasion to think that all government in
the world is the product only of force and violence, and that men live
together by no other rules but that of beasts, where the strongest carries
it, and so lay a foundation for perpetual disorder and mischief, tumult,
sedition, and rebellion (things that the followers of that hypothesis so
loudly cry out against), must of necessity find out another rise of
government, another original of political power, and another way of
designing and knowing the persons that have it than what Sir Robert Filmer
hath taught us. § 2.
To this purpose, I think it may not be amiss to set down what I take to be
political power. That the power of a magistrate over a subject may be
distinguished from that of a father over his children, a master over his
servant, a husband over his wife, and a lord over his slave. All which
distinct powers happening sometimes together in the same man, if he be
considered under these different relations, it may help us to distinguish
these powers one from another, and show the difference betwixt a ruler of
a commonwealth, a father of a family, and a captain of a galley. § 3.
Political power, then, I take to be a right of making laws, with penalties
of death, and consequently all less penalties for the regulating and
preserving of property, and of employing the force of the community in the
execution of such laws, and in the defence of the commonwealth from
foreign injury, and all this only for the public good. |
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BOOK
II, CHAPTER 2 § 4.
To understand political power aright, and derive it from its original, we
must consider what estate all men are naturally in, and that is, a state
of perfect freedom to order their actions, and dispose of their
possessions and persons as they think fit, within the bounds of the law of
Nature, without asking leave or depending upon the will of any other man. A state also of
equality, wherein all the power and jurisdiction is reciprocal, no one
having more than another, there being nothing more evident than that
creatures of the same species and rank, promiscuously born to all the same
advantages of Nature, and the use of the same faculties, should also be
equal one amongst another, without subordination or subjection, unless the
lord and master of them all should, by any manifest declaration of his
will, set one above another, and confer on him, by an evident and clear
appointment, an undoubted right to dominion and sovereignty. § 5.
This equality of men by Nature, the judicious Hooker looks upon as so
evident in itself, and beyond all question, that he makes it the
foundation of that obligation to mutual love amongst men on which he
builds the duties they owe one another, and from whence he derives the
great maxims of justice and charity. His words are: "The like
natural inducement hath brought men to know that it is no less their duty
to love others than themselves, for seeing those things which are equal,
must needs all have one measure; if I cannot but wish to receive good,
even as much at every man's hands, as any man can wish unto his own soul,
how should I look to have any part of my desire herein satisfied, unless
myself be careful to satisfy the like desire, which is undoubtedly in
other men weak, being of one and the same nature: to have anything offered
them repugnant to this desire must needs, in all respects, grieve them as
much as me; so that if I do harm, I must look to suffer, there being no
reason that others should show greater measure of love to me than they
have by me showed unto them; my desire, therefore, to be loved of my
equals in Nature, as much as possible may be, imposeth upon me a natural
duty of bearing to themward fully the like affection. From which relation
of equality between ourselves and them that are as ourselves, what several
rules and canons natural reason hath drawn for direction of life no man is
ignorant." (Eccl.
Pol. i.) § 6.
But though this be a state of liberty, yet it is not a state of licence;
though man in that state have an uncontrollable liberty to dispose of his
person or possessions, yet he has not liberty to destroy himself, or so
much as any creature in his possession, but where some nobler use than its
bare preservation calls for it. The state of Nature has a law of Nature to
govern it, which obliges every one, and reason, which is that law, teaches
all mankind who will but consult it, that being all equal and independent,
no one ought to harm another in his life, health, liberty or possessions;
for men being all the workmanship of one omnipotent and infinitely wise
Maker; all the servants of one sovereign Master, sent into the world by
His order and about His business; they are His property, whose workmanship
they are made to last during His, not one another's pleasure. And, being
furnished with like faculties, sharing all in one community of Nature,
there cannot be supposed any such subordination among us that may
authorise us to destroy one another, as if we were made for one another's
uses, as the inferior ranks of creatures are for ours. Every one as he is
bound to preserve himself, and not to quit his station wilfully, so by the
like reason, when his own preservation comes not in competition, ought he
as much as he can to preserve the rest of mankind, and not unless it be to
do justice on an offender, take away or impair the life, or what tends to
the preservation of the life, the liberty, health, limb, or goods of
another. § 7.
And that all men may be restrained from invading others' rights, and from
doing hurt to one another, and the law of Nature be observed, which
willeth the peace and preservation of all mankind, the execution of the
law of Nature is in that state put into every man's hands, whereby every
one has a right to punish the transgressors of that law to such a degree
as may hinder its violation. For the law of Nature would, as all other
laws that concern men in this world, be in vain if there were nobody that
in the state of Nature had a power to execute that law, and thereby
preserve the innocent and restrain offenders; and if any one in the state
of Nature may punish another for any evil he has done, every one may do
so. For in that state of perfect equality, where naturally there is no
superiority or jurisdiction of one over another, what any may do in
prosecution of that law, every one must needs have a right to do. § 8.
And thus, in the state of Nature, one man comes by a power over another,
but yet no absolute or arbitrary power to use a criminal, when he has got
him in his hands, according to the passionate heats or boundless
extravagancy of his own will, but only to retribute to him so far as calm
reason and conscience dictate, what is proportionate to his transgression,
which is so much as may serve for reparation and restraint. For these two
are the only reasons why one man may lawfully do harm to another, which is
that we call punishment. In transgressing the law of Nature, the offender
declares himself to live by another rule than that of reason and common
equity, which is that measure God has set to the actions of men for their
mutual security, and so he becomes dangerous to mankind; the tie which is
to secure them from injury and violence being slighted and broken by him,
which being a trespass against the whole species, and the peace and safety
of it, provided for by the law of Nature, every man upon this score, by
the right he hath to preserve mankind in general, may restrain, or where
it is necessary, destroy things noxious to them, and so may bring such
evil on any one who hath transgressed that law, as may make him repent the
doing of it, and thereby deter him, and, by his example, others from doing
the like mischief. And in this case, and upon this ground, every man hath
a right to punish the offender, and be executioner of the law of Nature. § 9.
I doubt not but this will seem a very strange doctrine to some men; but
before they condemn it, I desire them to resolve me by what right any
prince or state can put to death or punish an alien for any crime he
commits in their country? It is certain their laws, by virtue of any
sanction they receive from the promulgated will of the legislature, reach
not a stranger. They speak not to him, nor, if they did, is he bound to
hearken to them. The legislative authority by which they are in force over
the subjects of that commonwealth hath no power over him. Those who have
the supreme power of making laws in England, France, or Holland are, to an
Indian, but like the rest of the world - men without authority. And
therefore, if by the law of Nature every man hath not a power to punish
offences against it, as he soberly judges the case to require, I see not
how the magistrates of any community can punish an alien of another
country, since, in reference to him, they can have no more power than what
every man naturally may have over another. § 10.
Besides the crime which consists in violating the laws, and varying from
the right rule of reason, whereby a man so far becomes degenerate, and
declares himself to quit the principles of human nature and to be a
noxious creature, there is commonly injury done, and some person or other,
some other man, receives damage by his transgression; in which case, he
who hath received any damage has (besides the right of punishment common
to him, with other men) a particular right to seek reparation from him
that hath done it. And any other person who finds it just may also join
with him that is injured, and assist him in recovering from the offender
so much as may make satisfaction for the harm he hath suffered. § 11.
From these two distinct rights (the one of punishing the crime, for
restraint and preventing the like offence, which right of punishing is in
everybody, the other of taking reparation, which belongs only to the
injured party) comes it to pass that the magistrate, who by being
magistrate hath the common right of punishing put into his hands, can
often, where the public good demands not the execution of the law, remit
the punishment of criminal offences by his own authority, but yet cannot
remit the satisfaction due to any private man for the damage he has
received. That he who hath suffered the damage has a right to demand in
his own name, and he alone can remit. The damnified person has this power
of appropriating to himself the goods or service of the offender by right
of self-preservation, as every man has a power to punish the crime to
prevent its being committed again, by the right he has of preserving all
mankind, and doing all reasonable things he can in order to that end. And
thus it is that every man in the state of Nature has a power to kill a
murderer, both to deter others from doing the like injury (which no
reparation can compensate) by the example of the punishment that attends
it from everybody, and also to secure men from the attempts of a criminal
who, having renounced reason, the common rule and measure God hath given
to mankind, hath, by the unjust violence and slaughter he hath committed
upon one, declared war against all mankind, and therefore may be destroyed
as a lion or a tiger, one of those wild savage beasts with whom men can
have no society nor security. And upon this is grounded that great law of
nature, "Whoso sheddeth man's blood, by man shall his blood be shed."
And Cain was so fully convinced that every one had a right to destroy such
a criminal, that, after the murder of his brother, he cries out, "Every
one that findeth me shall slay me," so plain was it writ in the
hearts of all mankind. § 12.
By the same reason may a man in the state of Nature punish the lesser
breaches of that law, it will, perhaps, be demanded, with death? I answer:
Each transgression may be punished to that degree, and with so much
severity, as will suffice to make it an ill bargain to the offender, give
him cause to repent, and terrify others from doing the like. Every offence
that can be committed in the state of Nature may, in the state of Nature,
be also punished equally, and as far forth, as it may, in a commonwealth.
For though it would be beside my present purpose to enter here into the
particulars of the law of Nature, or its measures of punishment, yet it is
certain there is such a law, and that too as intelligible and plain to a
rational creature and a studier of that law as the positive laws of
commonwealths, nay, possibly plainer; as much as reason is easier to be
understood than the fancies and intricate contrivances of men, following
contrary and hidden interests put into words; for truly so are a great
part of the municipal laws of countries, which are only so far right as
they are founded on the law of Nature, by which they are to be regulated
and interpreted. § 13.
To this strange doctrine - viz., That in the state of Nature every one has
the executive power of the law of Nature - I doubt not but it will be
objected that it is unreasonable for men to be judges in their own cases,
that self-love will make men partial to themselves and their friends; and,
on the other side, ill-nature, passion, and revenge will carry them too
far in punishing others, and hence nothing but confusion and disorder will
follow, and that therefore God hath certainly appointed government to
restrain the partiality and violence of men. I easily grant that civil
government is the proper remedy for the inconveniences of the state of
Nature, which must certainly be great where men may be judges in their own
case, since it is easy to be imagined that he who was so unjust as to do
his brother an injury will scarce be so just as to condemn himself for it.
But I shall desire those who make this objection to remember that absolute
monarchs are but men; and if government is to be the remedy of those evils
which necessarily follow from men being judges in their own cases, and the
state of Nature is therefore not to be endured, I desire to know what kind
of government that is, and how much better it is than the state of Nature,
where one man commanding a multitude has the liberty to be judge in his
own case, and may do to all his subjects whatever he pleases without the
least question or control of those who execute his pleasure? and in
whatsoever he doth, whether led by reason, mistake, or passion, must be
submitted to? which men in the state of Nature are not bound to do one to
another. And if he that judges, judges amiss in his own or any other case,
he is answerable for it to the rest of mankind. § 14.
It is often asked as a mighty objection, where are, or ever were, there
any men in such a state of Nature? To which it may suffice as an answer at
present, that since all princes and rulers of "independent"
governments all through the world are in a state of Nature, it is plain
the world never was, nor never will be, without numbers of men in that
state. I have named all governors of "independent" communities,
whether they are, or are not, in league with others; for it is not every
compact that puts an end to the state of Nature between men, but only this
one of agreeing together mutually to enter into one community, and make
one body politic; other promises and compacts men may make one with
another, and yet still be in the state of Nature. The promises and
bargains for truck, etc., between the two men in Soldania, in or between a
Swiss and an Indian, in the woods of America, are binding to them, though
they are perfectly in a state of Nature in reference to one another for
truth, and keeping of faith belongs to men as men, and not as members of
society. § 15.
To those that say there were never any men in the state of Nature, I will
not oppose the authority of the judicious Hooker (Eccl. Pol. i. 10), where
he says, "the laws which have been hitherto mentioned" - i.e.,
the laws of Nature - "do bind men absolutely, even as they are men,
although they have never any settled fellowship, never any solemn
agreement amongst themselves what to do or not to do; but for as much as
we are not by ourselves sufficient to furnish ourselves with competent
store of things needful for such a life as our Nature doth desire, a life
fit for the dignity of man, therefore to supply those defects and
imperfections which are in us, as living single and solely by ourselves,
we are naturally induced to seek communion and fellowship with others;
this was the cause of men uniting themselves as first in politic societies."
But I, moreover, affirm that all men are naturally in that state, and
remain so till, by their own consents, they make themselves members of
some politic society, and I doubt not, in the sequel of this discourse, to
make it very clear. |
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BOOK
II, CHAPTER 3 § 16.
The state of war is a state of enmity and destruction; and therefore
declaring by word or action, not a passionate and hasty, but sedate,
settled design upon another man's life puts him in a state of war with him
against whom he has declared such an intention, and so has exposed his
life to the other's power to be taken away by him, or any one that joins
with him in his defence, and espouses his quarrel; it being reasonable and
just I should have a right to destroy that which threatens me with
destruction; for by the fundamental law of Nature, man being to be
preserved as much as possible, when all cannot be preserved, the safety of
the innocent is to be preferred, and one may destroy a man who makes war
upon him, or has discovered an enmity to his being, for the same reason
that he may kill a wolf or a lion, because they are not under the ties of
the common law of reason, have no other rule but that of force and
violence, and so may be treated as a beast of prey, those dangerous and
noxious creatures that will be sure to destroy him whenever he falls into
their power. § 17.
And hence it is that he who attempts to get another man into his absolute
power does thereby put himself into a state of war with him; it being to
be understood as a declaration of a design upon his life. For I have
reason to conclude that he who would get me into his power without my
consent would use me as he pleased when he had got me there, and destroy
me too when he had a fancy to it; for nobody can desire to have me in his
absolute power unless it be to compel me by force to that which is against
the right of my freedom - i.e. make me a slave. To be free from such force
is the only security of my preservation, and reason bids me look on him as
an enemy to my preservation who would take away that freedom which is the
fence to it; so that he who makes an attempt to enslave me thereby puts
himself into a state of war with me. He that in the state of Nature would
take away the freedom that belongs to any one in that state must
necessarily be supposed to have a design to take away everything else,
that freedom being the foundation of all the rest; as he that in the state
of society would take away the freedom belonging to those of that society
or commonwealth must be supposed to design to take away from them
everything else, and so be looked on as in a state of war. § 18.
This makes it lawful for a man to kill a thief who has not in the least
hurt him, nor declared any design upon his life, any farther than by the
use of force, so to get him in his power as to take away his money, or
what he pleases, from him; because using force, where he has no right to
get me into his power, let his pretence be what it will, I have no reason
to suppose that he who would take away my liberty would not, when he had
me in his power, take away everything else. And, therefore, it is lawful
for me to treat him as one who has put himself into a state of war with me
- i.e., kill him if I can; for to that hazard does he justly expose
himself whoever introduces a state of war, and is aggressor in it. § 19.
And here we have the plain difference between the state of Nature and the
state of war, which however some men have confounded, are as far distant
as a state of peace, good will, mutual assistance, and preservation; and a
state of enmity, malice, violence and mutual destruction are one from
another. Men living together according to reason without a common superior
on earth, with authority to judge between them, is properly the state of
Nature. But force, or a declared design of force upon the person of
another, where there is no common superior on earth to appeal to for
relief, is the state of war; and it is the want of such an appeal gives a
man the right of war even against an aggressor, though he be in society
and a fellow subject. Thus, a thief whom I cannot harm, but by appeal to
the law, for having stolen all that I am worth, I may kill when he sets on
me to rob me but of my horse or coat, because the law, which was made for
my preservation, where it cannot interpose to secure my life from present
force, which if lost is capable of no reparation, permits me my own
defence and the right of war, a liberty to kill the aggressor, because the
aggressor allows not time to appeal to our common judge, nor the decision
of the law, for remedy in a case where the mischief may be irreparable.
Want of a common judge with authority puts all men in a state of Nature;
force without right upon a man's person makes a state of war both where
there is, and is not, a common judge. § 20.
But when the actual force is over, the state of war ceases between those
that are in society and are equally on both sides subject to the judge;
and, therefore, in such controversies, where the question is put,
"Who shall be judge?" it cannot be meant who shall decide the
controversy; every one knows what Jephtha here tells us, that "the
Lord the Judge" shall judge. Where there is no judge on earth the
appeal lies to God in Heaven. That question then cannot mean who shall
judge, whether another hath put himself in a state of war with me, and
whether I may, as Jephtha did, appeal to Heaven in it? Of that I myself
can only judge in my own conscience, as I will answer it at the great day
to the Supreme Judge of all men. |
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BOOK II, CHAPTER 4 § 21.
The natural liberty of man is to be free from any superior power on earth,
and not to be under the will or legislative authority of man, but to have
only the law of Nature for his rule. The liberty of man in society is to
be under no other legislative power but that established by consent in the
commonwealth, nor under the dominion of any will, or restraint of any law,
but what that legislative shall enact according to the trust put in it.
Freedom, then, is not what Sir Robert Filmer tells us: "A liberty for
every one to do what he lists, to live as he pleases, and not to be tied
by any laws"; but freedom of men under government is to have a
standing rule to live by, common to every one of that society, and made by
the legislative power erected in it. A liberty to follow my own will in
all things where that rule prescribes not, not to be subject to the
inconstant, uncertain, unknown, arbitrary will of another man, as freedom
of nature is to be under no other restraint but the law of Nature. § 22.
This freedom from absolute, arbitrary power is so necessary to, and
closely joined with, a man's preservation, that he cannot part with it but
by what forfeits his preservation and life together. For a man, not having
the power of his own life, cannot by compact or his own consent enslave
himself to any one, nor put himself under the absolute, arbitrary power of
another to take away his life when he pleases. Nobody can give more power
than he has himself, and he that cannot take away his own life cannot give
another power over it. Indeed, having by his fault forfeited his own life
by some act that deserves death, he to whom he has forfeited it may, when
he has him in his power, delay to take it, and make use of him to his own
service; and he does him no injury by it. For, whenever he finds the
hardship of his slavery outweigh the value of his life, it is in his
power, by resisting the will of his master, to draw on himself the death
he desires. § 23.
This is the perfect condition of slavery, which is nothing else but the
state of war continued between a lawful conqueror and a captive, for if
once compact enter between them, and make an agreement for a limited power
on the one side, and obedience on the other, the state of war and slavery
ceases as long as the compact endures; for, as has been said, no man can
by agreement pass over to another that which he hath not in himself - a
power over his own life. I confess, we find
among the Jews, as well as other nations, that men did sell themselves;
but it is plain this was only to drudgery, not to slavery; for it is
evident the person sold was not under an absolute, arbitrary, despotical
power, for the master could not have power to kill him at any time, whom
at a certain time he was obliged to let go free out of his service; and
the master of such a servant was so far from having an arbitrary power
over his life that he could not at pleasure so much as maim him, but the
loss of an eye or tooth set him free (Exod. 21.). |
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BOOK II, CHAPTER 5 § 24.
Whether we consider natural reason, which tells us that men, being once
born, have a right to their preservation, and consequently to meat and
drink and such other things as Nature affords for their subsistence, or
"revelation," which gives us an account of those grants God made
of the world to Adam, and to Noah and his sons, it is very clear that God,
as King David says (Psalm 115:16), "has given the earth to the
children of men," given it to mankind in common. But, this being
supposed, it seems to some a very great difficulty how any one should ever
come to have a property in anything, I will not content myself to answer,
that, if it be difficult to make out "property" upon a
supposition that God gave the world to Adam and his posterity in common,
it is impossible that any man but one universal monarch should have any
"property" upon a supposition that God gave the world to Adam
and his heirs in succession, exclusive of all the rest of his posterity;
but I shall endeavour to show how men might come to have a property in
several parts of that which God gave to mankind in common, and that
without any express compact of all the commoners. § 25.
God, who hath given the world to men in common, hath also given them
reason to make use of it to the best advantage of life and convenience.
The earth and all that is therein is given to men for the support and
comfort of their being. And though all the fruits it naturally produces,
and beasts it feeds, belong to mankind in common, as they are produced by
the spontaneous hand of Nature, and nobody has originally a private
dominion exclusive of the rest of mankind in any of them, as they are thus
in their natural state, yet being given for the use of men, there must of
necessity be a means to appropriate them some way or other before they can
be of any use, or at all beneficial, to any particular men. The fruit or
venison which nourishes the wild Indian, who knows no enclosure, and is
still a tenant in common, must be his, and so his - i.e., a part of him,
that another can no longer have any right to it before it can do him any
good for the support of his life. § 26.
Though the earth and all inferior creatures be common to all men, yet
every man has a "property" in his own "person." This
nobody has any right to but himself. The "labour" of his body
and the "work" of his hands, we may say, are properly his.
Whatsoever, then, he removes out of the state that Nature hath provided
and left it in, he hath mixed his labour with it, and joined to it
something that is his own, and thereby makes it his property. It being by
him removed from the common state Nature placed it in, it hath by this
labour something annexed to it that excludes the common right of other
men. For this "labour" being the unquestionable property of the
labourer, no man but he can have a right to what that is once joined to,
at least where there is enough, and as good left in common for others. § 27.
He that is nourished by the acorns he picked up under an oak, or the
apples he gathered from the trees in the wood, has certainly appropriated
them to himself. Nobody can deny but the nourishment is his. I ask, then,
when did they begin to be his? when he digested? or when he ate? or when
he boiled? or when he brought them home? or when he picked them up? And it
is plain, if the first gathering made them not his, nothing else could.
That labour put a distinction between them and common. That added
something to them more than Nature, the common mother of all, had done,
and so they became his private right. And will any one say he had no right
to those acorns or apples he thus appropriated because he had not the
consent of all mankind to make them his? Was it a robbery thus to assume
to himself what belonged to all in common? If such a consent as that was
necessary, man had starved, notwithstanding the plenty God had given him.
We see in commons, which remain so by compact, that it is the taking any
part of what is common, and removing it out of the state Nature leaves it
in, which begins the property, without which the common is of no use. And
the taking of this or that part does not depend on the express consent of
all the commoners. Thus, the grass my horse has bit, the turfs my servant
has cut, and the ore I have digged in any place, where I have a right to
them in common with others, become my property without the assignation or
consent of anybody. The labour that was mine, removing them out of that
common state they were in, hath fixed my property in them. § 28.
By making an explicit consent of every commoner necessary to any one's
appropriating to himself any part of what is given in common. Children or
servants could not cut the meat which their father or master had provided
for them in common without assigning to every one his peculiar part.
Though the water running in the fountain be every one's, yet who can doubt
but that in the pitcher is his only who drew it out? His labour hath taken
it out of the hands of Nature where it was common, and belonged equally to
all her children, and hath thereby appropriated it to himself. § 29.
Thus this law of reason makes the deer that Indian's who hath killed it;
it is allowed to be his goods who hath bestowed his labour upon it,
though, before, it was the common right of every one. And amongst those
who are counted the civilised part of mankind, who have made and
multiplied positive laws to determine property, this original law of
Nature for the beginning of property, in what was before common, still
takes place, and by virtue thereof, what fish any one catches in the
ocean, that great and still remaining common of mankind; or what
amber-gris any one takes up here is by the labour that removes it out of
that common state Nature left it in, made his property who takes that
pains about it. And even amongst us, the hare that any one is hunting is
thought his who pursues her during the chase. For being a beast that is
still looked upon as common, and no man's private possession, whoever has
employed so much labour about any of that kind as to find and pursue her
has thereby removed her from the state of Nature wherein she was common,
and hath begun a property. § 30.
It will, perhaps, be objected to this, that if gathering the acorns or
other fruits of the earth, etc., makes a right to them, then any one may
engross as much as he will. To which I answer, Not so. The same law of
Nature that does by this means give us property, does also bound that
property too. "God has given us all things richly." Is the voice
of reason confirmed by inspiration? But how far has He given it us
"to enjoy"? As much as any one can make use of to any advantage
of life before it spoils, so much he may by his labour fix a property in.
Whatever is beyond this is more than his share, and belongs to others.
Nothing was made by God for man to spoil or destroy. And thus considering
the plenty of natural provisions there was a long time in the world, and
the few spenders, and to how small a part of that provision the industry
of one man could extend itself and engross it to the prejudice of others,
especially keeping within the bounds set by reason of what might serve for
his use, there could be then little room for quarrels or contentions about
property so established. § 31.
But the chief matter of property being now not the fruits of the earth and
the beasts that subsist on it, but the earth itself, as that which takes
in and carries with it all the rest, I think it is plain that property in
that too is acquired as the former. As much land as a man tills, plants,
improves, cultivates, and can use the product of, so much is his property.
He by his labour does, as it were, enclose it from the common. Nor will it
invalidate his right to say everybody else has an equal title to it, and
therefore he cannot appropriate, he cannot enclose, without the consent of
all his fellow-commoners, all mankind. God, when He gave the world in
common to all mankind, commanded man also to labour, and the penury of his
condition required it of him. God and his reason commanded him to subdue
the earth - i.e., improve it for the benefit of life and therein lay out
something upon it that was his own, his labour. He that, in obedience to
this command of God, subdued, tilled, and sowed any part of it, thereby
annexed to it something that was his property, which another had no title
to, nor could without injury take from him. § 32.
Nor was this appropriation of any parcel of land, by improving it, any
prejudice to any other man, since there was still enough and as good left,
and more than the yet unprovided could use. So that, in effect, there was
never the less left for others because of his enclosure for himself. For
he that leaves as much as another can make use of does as good as take
nothing at all. Nobody could think himself injured by the drinking of
another man, though he took a good draught, who had a whole river of the
same water left him to quench his thirst. And the case of land and water,
where there is enough of both, is perfectly the same. § 33.
God gave the world to men in common, but since He gave it them for their
benefit and the greatest conveniencies of life they were capable to draw
from it, it cannot be supposed He meant it should always remain common and
uncultivated. He gave it to the use of the industrious and rational (and
labour was to be his title to it); not to the fancy or covetousness of the
quarrelsome and contentious. He that had as good left for his improvement
as was already taken up needed not complain, ought not to meddle with what
was already improved by another's labour; if he did it is plain he desired
the benefit of another's pains, which he had no right to, and not the
ground which God had given him, in common with others, to labour on, and
whereof there was as good left as that already possessed, and more than he
knew what to do with, or his industry could reach to. § 34.
It is true, in land that is common in England or any other country, where
there are plenty of people under government who have money and commerce,
no one can enclose or appropriate any part without the consent of all his
fellow commoners; because this is left common by compact - i.e., by the
law of the land, which is not to be violated. And, though it be common in
respect of some men, it is not so to all mankind, but is the joint
propriety of this country, or this parish. Besides, the remainder, after
such enclosure, would not be as good to the rest of the commoners as the
whole was, when they could all make use of the whole; whereas in the
beginning and first peopling of the great common of the world it was quite
otherwise. The law man was under was rather for appropriating. God
commanded, and his wants forced him to labour. That was his property,
which could not be taken from him wherever he had fixed it. And hence
subduing or cultivating the earth and having dominion, we see, are joined
together. The one gave title to the other. So that God, by commanding to
subdue, gave authority so far to appropriate. And the condition of human
life, which requires labour and materials to work on, necessarily
introduce private possessions. § 35.
The measure of property Nature well set, by the extent of men's labour and
the conveniency of life. No man's labour could subdue or appropriate all,
nor could his enjoyment consume more than a small part; so that it was
impossible for any man, this way, to entrench upon the right of another or
acquire to himself a property to the prejudice of his neighbour, who would
still have room for as good and as large a possession (after the other had
taken out his) as before it was appropriated. Which measure did confine
every man's possession to a very moderate proportion, and such as he might
appropriate to himself without injury to anybody in the first ages of the
world, when men were more in danger to be lost, by wandering from their
company, in the then vast wilderness of the earth than to be straitened
for want of room to plant in. § 36.
The same measure may be allowed still, without prejudice to anybody, full
as the world seems. For, supposing a man or family, in the state they were
at first, peopling of the world by the children of Adam or Noah, let him
plant in some inland vacant places of America. We shall find that the
possessions he could make himself, upon the measures we have given, would
not be very large, nor, even to this day, prejudice the rest of mankind or
give them reason to complain or think themselves injured by this man's
encroachment, though the race of men have now spread themselves to all the
corners of the world, and do infinitely exceed the small number was at the
beginning. Nay, the extent of ground is of so little value without labour
that I have heard it affirmed that in Spain itself a man may be permitted
to plough, sow, and reap, without being disturbed, upon land he has no
other title to, but only his making use of it. But, on the contrary, the
inhabitants think themselves beholden to him who, by his industry on
neglected, and consequently waste land, has increased the stock of corn,
which they wanted. But be this as it will, which I lay no stress on, this
I dare boldly affirm, that the same rule of propriety - viz., that every
man should have as much as he could make use of, would hold still in the
world, without straitening anybody, since there is land enough in the
world to suffice double the inhabitants, had not the invention of money,
and the tacit agreement of men to put a value on it, introduced (by
consent) larger possessions and a right to them; which, how it has done, I
shall by and by show more at large. § 37.
This is certain, that in the beginning, before the desire of having more
than men needed had altered the intrinsic value of things, which depends
only on their usefulness to the life of man, or had agreed that a little
piece of yellow metal, which would keep without wasting or decay, should
be worth a great piece of flesh or a whole heap of corn, though men had a
right to appropriate by their labour, each one to himself, as much of the
things of Nature as he could use, yet this could not be much, nor to the
prejudice of others, where the same plenty was still left, to those who
would use the same industry. Before the
appropriation of land, he who gathered as much of the wild fruit, killed,
caught, or tamed as many of the beasts as he could - he that so employed
his pains about any of the spontaneous products of Nature as any way to
alter them from the state Nature put them in, by placing any of his labour
on them, did thereby acquire a propriety in them; but if they perished in
his possession without their due use - if the fruits rotted or the venison
putrefied before he could spend it, he offended against the common law of
Nature, and was liable to be punished: he invaded his neighbour's share,
for he had no right farther than his use called for any of them, and they
might serve to afford him conveniencies of life. § 38.
The same measures governed the possession of land, too. Whatsoever he
tilled and reaped, laid up and made use of before it spoiled, that was his
peculiar right; whatsoever he enclosed, and could feed and make use of,
the cattle and product was also his. But if either the grass of his
enclosure rotted on the ground, or the fruit of his planting perished
without gathering and laying up, this part of the earth, notwithstanding
his enclosure, was still to be looked on as waste, and might be the
possession of any other. Thus, at the beginning, Cain might take as much
ground as he could till and make it his own land, and yet leave enough to
Abel's sheep to feed on: a few acres would serve for both their
possessions. But as families increased and industry enlarged their stocks,
their possessions enlarged with the need of them; but yet it was commonly
without any fixed property in the ground they made use of till they
incorporated, settled themselves together, and built cities, and then, by
consent, they came in time to set out the bounds of their distinct
territories and agree on limits between them and their neighbours, and by
laws within themselves settled the properties of those of the same
society. For we see that in that part of the world which was first
inhabited, and therefore like to be best peopled, even as low down as
Abraham's time, they wandered with their flocks and their herds, which was
their substance, freely up and down - and this Abraham did in a country
where he was a stranger; whence it is plain that, at least, a great part
of the land lay in common, that the inhabitants valued it not, nor claimed
property in any more than they made use of; but when there was not room
enough in the same place for their herds to feed together, they, by
consent, as Abraham and Lot did (Gen. 13:5), separated and enlarged their
pasture where it best liked them. And for the same reason, Esau went from
his father and his brother, and planted in Mount Seir (Gen. 36:6). § 39.
And thus, without supposing any private dominion and property in Adam over
all the world, exclusive of all other men, which can no way be proved, nor
any one's property be made out from it, but supposing the world, given as
it was to the children of men in common, we see how labour could make men
distinct titles to several parcels of it for their private uses, wherein
there could be no doubt of right, no room for quarrel. § 40.
Nor is it so strange as, perhaps, before consideration, it may appear,
that the property of labour should be able to overbalance the community of
land, for it is labour indeed that puts the difference of value on
everything; and let any one consider what the difference is between an
acre of land planted with tobacco or sugar, sown with wheat or barley, and
an acre of the same land lying in common without any husbandry upon it,
and he will find that the improvement of labour makes the far greater part
of the value. I think it will be but a very modest computation to say,
that of the products of the earth useful to the life of man, nine-tenths
are the effects of labour. Nay, if we will rightly estimate things as they
come to our use, and cast up the several expenses about them - what in
them is purely owing to Nature and what to labour - we shall find that in
most of them ninety-nine hundredths are wholly to be put on the account of
labour. § 41.
There cannot be a clearer demonstration of anything than several nations
of the Americans are of this, who are rich in land and poor in all the
comforts of life; whom Nature, having furnished as liberally as any other
people with the materials of plenty - i.e., a fruitful soil, apt to
produce in abundance what might serve for food, raiment, and delight; yet,
for want of improving it by labour, have not one hundredth part of the
conveniencies we enjoy, and a king of a large and fruitful territory there
feeds, lodges, and is clad worse than a day labourer in England. § 42.
To make this a little clearer, let us but trace some of the ordinary
provisions of life, through their several progresses, before they come to
our use, and see how much they receive of their value from human industry.
Bread, wine, and cloth are things of daily use and great plenty; yet
notwithstanding acorns, water, and leaves, or skins must be our bread,
drink and clothing, did not labour furnish us with these more useful
commodities. For whatever bread is more worth than acorns, wine than
water, and cloth or silk than leaves, skins or moss, that is wholly owing
to labour and industry. The one of these being the food and raiment which
unassisted Nature furnishes us with; the other provisions which our
industry and pains prepare for us, which how much they exceed the other in
value, when any one hath computed, he will then see how much labour makes
the far greatest part of the value of things we enjoy in this world; and
the ground which produces the materials is scarce to be reckoned in as
any, or at most, but a very small part of it; so little, that even amongst
us, land that is left wholly to nature, that hath no improvement of
pasturage, tillage, or planting, is called, as indeed it is, waste; and we
shall find the benefit of it amount to little more than nothing. § 43.
An acre of land that bears here twenty bushels of wheat, and another in
America, which, with the same husbandry, would do the like, are, without
doubt, of the same natural, intrinsic value. But yet the benefit mankind
receives from one in a year is worth five ounds, and the other possibly
not worth a penny; if all the profit an Indian received from it were to be
valued and sold here, at least I may truly say, not one thousandth. It is
labour, then, which puts the greatest part of value upon land, without
which it would scarcely be worth anything; it is to that we owe the
greatest part of all its useful products; for all that the straw, bran,
bread, of that acre of wheat, is more worth than the product of an acre of
as good land which lies waste is all the effect of labour. For it is not
barely the ploughman's pains, the reaper's and thresher's toil, and the
baker's sweat, is to be counted into the bread we eat; the labour of those
who broke the oxen, who digged and wrought the iron and stones, who felled
and framed the timber employed about the plough, mill, oven, or any other
utensils, which are a vast number, requisite to this corn, from its sowing
to its being made bread, must all be charged on the account of labour, and
received as an effect of that; Nature and the earth furnished only the
almost worthless materials as in themselves. It would be a strange
catalogue of things that industry provided and made use of about every
loaf of bread before it came to our use if we could trace them; iron,
wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dyeing
-drugs, pitch, tar, masts, ropes, and all the materials made use of in the
ship that brought any of the commodities made use of by any of the
workmen, to any part of the work, all which it would be almost impossible,
at least too long, to reckon up. § 44.
From all which it is evident, that though the things of Nature are given
in common, man (by being master of himself, and proprietor of his own
person, and the actions or labour of it) had still in himself the great
foundation of property; and that which made up the great part of what he
applied to the support or comfort of his being, when invention and arts
had improved the conveniences of life, was perfectly his own, and did not
belong in common to others. § 45.
Thus labour, in the beginning, gave a right of property, wherever any one
was pleased to employ it, upon what was common, which remained a long
while, the far greater part, and is yet more than mankind makes use of Men
at first, for the most part, contented themselves with what unassisted
Nature offered to their necessities; and though afterwards, in some parts
of the world, where the increase of people and stock, with the use of
money, had made land scarce, and so of some value, the several communities
settled the bounds of their distinct territories, and, by laws, within
themselves, regulated the properties of the private men of their society,
and so, by compact and agreement, settled the property which labour and
industry began. And the leagues that have been made between several states
and kingdoms, either expressly or tacitly disowning all claim and right to
the land in the other's possession, have, by common consent, given up
their pretences to their natural common right, which originally they had
to those countries; and so have, by positive agreement, settled a property
amongst themselves, in distinct parts of the world; yet there are still
great tracts of ground to be found, which the inhabitants thereof, not
having joined with the rest of mankind in the consent of the use of their
common money, lie waste, and are more than the people who dwell on it, do,
or can make use of, and so still lie in common; though this can scarce
happen amongst that part of mankind that have consented to the use of
money. § 46.
The greatest part of things really useful to the life of man, and such as
the necessity of subsisting made the first commoners of the world look
after - as it doth the Americans now - are generally things of short
duration, such as - if they are not consumed by use - will decay and
perish of themselves. Gold, silver, and diamonds are things that fancy or
agreement hath put the value on, more than real use and the necessary
support of life. Now of those good things which Nature hath provided in
common, every one hath a right (as hath been said) to as much as he could
use; and had a property in all he could effect with his labour; all that
his industry could extend to, to alter from the state Nature had put it
in, was his. He that gathered a hundred bushels of acorns or apples had
thereby a property in them; they were his goods as soon as gathered. He
was only to look that he used them before they spoiled, else he took more
than his share, and robbed others. And, indeed, it was a foolish thing, as
well as dishonest, to hoard up more than he could make use of If he gave
away a part to anybody else, so that it perished not uselessly in his
possession, these he also made use of And if he also bartered away plums
that would have rotted in a week, for nuts that would last good for his
eating a whole year, he did no injury; he wasted not the common stock;
destroyed no part of the portion of goods that belonged to others, so long
as nothing perished uselessly in his hands. Again, if he would give his
nuts for a piece of metal, pleased with its colour, or exchange his sheep
for shells, or wool for a sparkling pebble or a diamond, and keep those by
him all his life, he invaded not the right of others; he might heap up as
much of these durable things as he pleased; the exceeding of the bounds of
his just property not lying in the largeness of his possession, but the
perishing of anything uselessly in it. § 47.
And thus came in the use of money; some lasting thing that men might keep
without spoiling, and that, by mutual consent, men would take in exchange
for the truly useful but perishable supports of life. § 48.
And as different degrees of industry were apt to give men possessions in
different proportions, so this invention of money gave them the
opportunity to continue and enlarge them. For supposing an island,
separate from all possible commerce with the rest of the world, wherein
there were but a hundred families, but there were sheep, horses, and cows,
with other useful animals, wholesome fruits, and land enough for corn for
a hundred thousand times as many, but nothing in the island, either
because of its commonness or perishableness, fit to supply the place of
money. What reason could any one have there to enlarge his possessions
beyond the use of his family, and a plentiful supply to its consumption,
either in what their own industry produced, or they could barter for like
perishable, useful commodities with others? Where there is not something
both lasting and scarce, and so valuable to be hoarded up, there men will
not be apt to enlarge their possessions of land, were it never so rich,
never so free for them to take. For I ask, what would a man value ten
thousand or an hundred thousand acres of excellent land, ready cultivated
and well stocked, too, with cattle, in the middle of the inland parts of
America, where he had no hopes of commerce with other parts of the world,
to draw money to him by the sale of the product? It would not be worth the
enclosing, and we should see him give up again to the wild common of
Nature whatever was more than would supply the conveniences of life, to be
had there for him and his family. § 49.
Thus, in the beginning, all the world was America, and more so than that
is now; for no such thing as money was anywhere known. Find out something
that hath the use and value of money amongst his neighbours, you shall see
the same man will begin presently to enlarge his possessions. § 50.
But, since gold and silver, being little useful to the life of man, in
proportion to food, raiment, and carriage, has its value only from the
consent of men - whereof labour yet makes in great part the measure - it
is plain that the consent of men have agreed to a disproportionate and
unequal possession of the earth - I mean out of the bounds of society and
compact; for in governments the laws regulate it; they having, by consent,
found out and agreed in a way how a man may, rightfully and without
injury, possess more than he himself can make use of by receiving gold and
silver, which may continue long in a man's possession without decaying for
the overplus, and agreeing those metals should have a value. § 51.
And thus, I think, it is very easy to conceive, without any difficulty,
how labour could at first begin a title of property in the common things
of Nature, and how the spending it upon our uses bounded it; so that there
could then be no reason of quarrelling about title, nor any doubt about
the largeness of possession it gave. Right and conveniency went together.
For as a man had a right to all he could employ his labour upon, so he had
no temptation to labour for more than he could make use of. This left no
room for controversy about the title, nor for encroachment on the right of
others. What portion a man carved to himself was easily seen; and it was
useless, as well as dishonest, to carve himself too much, or take more
than he needed. |
|
BOOK
II, CHAPTER 6 § 52.
IT may perhaps be censured an impertinent criticism in a discourse of this
nature to find fault with words and names that have obtained in the world.
And yet possibly it may not be amiss to offer new ones when the old are
apt to lead men into mistakes, as this of paternal power probably has
done, which seems so to place the power of parents over their children
wholly in the father, as if the mother had no share in it; whereas if we
consult reason or revelation, we shall find she has an equal title, which
may give one reason to ask whether this might not be more properly called
parental power? For whatever obligation Nature and the right of generation
lays on children, it must certainly bind them equal to both the concurrent
causes of it. And accordingly we see the positive law of God everywhere
joins them together without distinction, when it commands the obedience of
children: "Honour thy father and thy mother" (Exod. 20:12);
"Whosoever curseth his father or his mother" (Lev. 20:9);
"Ye shall fear every man his mother and his father" (Lev. 19:3);
"Children, obey your parents" (Eph. 6:1), etc., is the style of
the Old and New Testament. § 53.
Had but this one thing been well considered without looking any deeper
into the matter, it might perhaps have kept men from running into those
gross mistakes they have made about this power of parents, which however
it might without any great harshness bear the name of absolute dominion
and regal authority, when under the title of "paternal" power,
it seemed appropriated to the father; would yet have sounded but oddly,
and in the very name shown the absurdity, if this supposed absolute power
over children had been called parental, and thereby discovered that it
belonged to the mother too. For it will but very ill serve the turn of
those men who contend so much for the absolute power and authority of the
fatherhood, as they call it, that the mother should have any share in it.
And it would have but ill supported the monarchy they contend for, when by
the very name it appeared that that fundamental authority from whence they
would derive their government of a single person only was not placed in
one, but two persons jointly. But to let this of names pass. § 54.
Though I have said above (2) "That all men by nature are equal,"
I cannot be supposed to understand all sorts of "equality." Age
or virtue may give men a just precedency. Excellency of parts and merit
may place others above the common level. Birth may subject some, and
alliance or benefits others, to pay an observance to those to whom Nature,
gratitude, or other respects, may have made it due; and yet all this
consists with the equality which all men are in respect of jurisdiction or
dominion one over another, which was the equality I there spoke of as
proper to the business in hand, being that equal right that every man hath
to his natural freedom, without being subjected to the will or authority
of any other man. § 55.
Children, I confess, are not born in this full state of equality, though
they are born to it. Their parents have a sort of rule and jurisdiction
over them when they come into the world, and for some time after, but it
is but a temporary one. The bonds of this subjection are like the
swaddling clothes they are wrapt up in and supported by in the weakness of
their infancy. Age and reason as they grow up loosen them, till at length
they drop quite off, and leave a man at his own free disposal. § 56.
Adam was created a perfect man, his body and mind in full possession of
their strength and reason, and so was capable from the first instance of
his being to provide for his own support and preservation, and govern his
actions according to the dictates of the law of reason God had implanted
in him. From him the world is peopled with his descendants, who are all
born infants, weak and helpless, without knowledge or understanding. But
to supply the defects of this imperfect state till the improvement of
growth and age had removed them, Adam and Eve, and after them all parents
were, by the law of Nature, under an obligation to preserve, nourish and
educate the children they had begotten, not as their own workmanship, but
the workmanship of their own Maker, the Almighty, to whom they were to be
accountable for them. § 57.
The law that was to govern Adam was the same that was to govern all his
posterity, the law of reason. But his offspring having another way of
entrance into the world, different from him, by a natural birth, that
produced them ignorant, and without the use of reason, they were not
presently under that law. For nobody can be under a law that is not
promulgated to him; and this law being promulgated or made known by reason
only, he that is not come to the use of his reason cannot be said to be
under this law; and Adam's children being not presently as soon as born
under this law of reason, were not presently free. For law, in its true
notion, is not so much the limitation as the direction of a free and
intelligent agent to his proper interest, and prescribes no farther than
is for the general good of those under that law. Could they be happier
without it, the law, as a useless thing, would of itself vanish; and that
ill deserves the name of confinement which hedges us in only from bogs and
precipices. So that however it may be mistaken, the end of law is not to
abolish or restrain, but to preserve and enlarge freedom. For in all the
states of created beings, capable of laws, where there is no law there is
no freedom. For liberty is to be free from restraint and violence from
others, which cannot be where there is no law; and is not, as we are told,
"a liberty for every man to do what he lists." For who could be
free, when every other man's humour might domineer over him? But a liberty
to dispose and order freely as he lists his person, actions, possessions,
and his whole property within the allowance of those laws under which he
is, and therein not to be subject to the arbitrary will of another, but
freely follow his own. § 58.
The power, then, that parents have over their children arises from that
duty which is incumbent on them, to take care of their offspring during
the imperfect state of childhood. To inform the mind, and govern the
actions of their yet ignorant nonage, till reason shall take its place and
ease them of that trouble, is what the children want, and the parents are
bound to. For God having given man an understanding to direct his actions,
has allowed him a freedom of will and liberty of acting, as properly
belonging thereunto within the bounds of that law he is under. But whilst
he is in an estate wherein he has no understanding of his own to direct
his will, he is not to have any will of his own to follow. He that
understands for him must will for him too; he must prescribe to his will,
and regulate his actions, but when he comes to the estate that made his
father a free man, the son is a free man too. § 59.
This holds in all the laws a man is under, whether natural or civil. Is a
man under the law of Nature? What made him free of that law? what gave him
a free disposing of his property, according to his own will, within the
compass of that law? I answer, an estate wherein he might be supposed
capable to know that law, that so he might keep his actions within the
bounds of it. When he has acquired that state, he is presumed to know how
far that law is to be his guide, and how far he may make use of his
freedom, and so comes to have it; till then, somebody else must guide him,
who is presumed to know how far the law allows a liberty. If such a state
of reason, such an age of discretion made him free, the same shall make
his son free too. Is a man under the law of England? what made him free of
that law - that is, to have the liberty to dispose of his actions and
possessions, according to his own will, within the permission of that law?
a capacity of knowing that law. Which is supposed, by that law, at the age
of twenty-one, and in some cases sooner. If this made the father free, it
shall make the son free too. Till then, we see the law allows the son to
have no will, but he is to be guided by the will of his father or
guardian, who is to understand for him. And if the father die and fail to
substitute a deputy in this trust, if he hath not provided a tutor to
govern his son during his minority, during his want of understanding, the
law takes care to do it: some other must govern him and be a will to him
till he hath attained to a state of freedom, and his understanding be fit
to take the government of his will. But after that the father and son are
equally free, as much as tutor and pupil, after nonage, equally subjects
of the same law together, without any dominion left in the father over the
life, liberty, or estate of his son, whether they be only in the state and
under the law of Nature, or under the positive laws of an established
government. § 60.
But if through defects that may happen out of the ordinary course of
Nature, any one comes not to such a degree of reason wherein he might be
supposed capable of knowing the law, and so living within the rules of it,
he is never capable of being a free man, he is never let loose to the
disposure of his own will; because he knows no bounds to it, has not
understanding, its proper guide, but is continued under the tuition and
government of others all the time his own understanding is incapable of
that charge. And so lunatics and idiots are never set free from the
government of their parents: "Children who are not as yet come unto
those years whereat they may have, and innocents, which are excluded by a
natural defect from ever having." Thirdly: "Madmen, which, for
the present, cannot possibly have the use of right reason to guide
themselves, have, for their guide, the reason that guideth other men which
are tutors over them, to seek and procure their good for them," says
Hooker (Eccl. Pol., lib. i., s. 7). All which seems no more than that duty
which God and Nature has laid on man, as well as other creatures, to
preserve their offspring till they can be able to shift for themselves,
and will scarce amount to an instance or proof of parents' regal
authority. § 61.
Thus we are born free as we are born rational; not that we have actually
the exercise of either: age that brings one, brings with it the other too.
And thus we see how natural freedom and subjection to parents may consist
together, and are both founded on the same principle. A child is free by
his father's title, by his father's understanding, which is to govern him
till he hath it of his own. The freedom of a man at years of discretion,
and the subjection of a child to his parents, whilst yet short of it, are
so consistent and so distinguishable that the most blinded contenders for
monarchy, "by right of fatherhood," cannot miss of it; the most
obstinate cannot but allow of it. For were their doctrine all true, were
the right heir of Adam now known, and, by that title, settled a monarch in
his throne, invested with all the absolute unlimited power Sir Robert
Filmer talks of, if he should die as soon as his heir were born, must not
the child, notwithstanding he were never so free, never so much sovereign,
be in subjection to his mother and nurse, to tutors and governors, till
age and education brought him reason and ability to govern himself and
others? The necessities of his life, the health of his body, and the
information of his mind would require him to be directed by the will of
others and not his own; and yet will any one think that this restraint and
subjection were inconsistent with, or spoiled him of, that liberty or
sovereignty he had a right to, or gave away his empire to those who had
the government of his nonage? This government over him only prepared him
the better and sooner for it. If anybody should ask me when my son is of
age to be free, I shall answer, just when his monarch is of age to govern.
"But at what time," says the judicious Hooker (Eccl. Pol., lib.
i., s. 6), "a man may be said to have attained so far forth the use
of reason as sufficeth to make him capable of those laws whereby he is
then bound to guide his actions; this is a great deal more easy for sense
to discern than for any one, by skill and learning, to determine." § 62.
Commonwealths themselves take notice of, and allow that there is a time
when men are to begin to act like free men, and therefore, till that time,
require not oaths of fealty or allegiance, or other public owning of, or
submission to, the government of their countries. § 63.
The freedom then of man, and liberty of acting according to his own will,
is grounded on his having reason, which is able to instruct him in that
law he is to govern himself by, and make him know how far he is left to
the freedom of his own will. To turn him loose to an unrestrained liberty,
before he has reason to guide him, is not the allowing him the privilege
of his nature to be free, but to thrust him out amongst brutes, and
abandon him to a state as wretched and as much beneath that of a man as
theirs. This is that which puts the authority into the parents' hands to
govern the minority of their children. God hath made it their business to
employ this care on their offspring, and hath placed in them suitable
inclinations of tenderness and concern to temper this power, to apply it
as His wisdom designed it, to the children's good as long as they should
need to be under it. § 64.
But what reason can hence advance this care of the parents due to their
offspring into an absolute, arbitrary dominion of the father, whose power
reaches no farther than by such a discipline as he finds most effectual to
give such strength and health to their bodies, such vigour and rectitude
to their minds, as may best fit his children to be most useful to
themselves and others, and, if it be necessary to his condition, to make
them work when they are able for their own subsistence; but in this power
the mother, too, has her share with the father. § 65.
Nay, this power so little belongs to the father by any peculiar right of
Nature, but only as he is guardian of his children, that when he quits his
care of them he loses his power over them, which goes along with their
nourishment and education, to which it is inseparably annexed, and belongs
as much to the foster-father of an exposed child as to the natural father
of another. So little power does the bare act of begetting give a man over
his issue, if all his care ends there, and this be all the title he hath
to the name and authority of a father. And what will become of this
paternal power in that part of the world where one woman hath more than
one husband at a time? or in those parts of America where, when the
husband and wife part, which happens frequently, the children are all left
to the mother, follow her, and are wholly under her care and provision?
And if the father die whilst the children are young, do they not naturally
everywhere owe the same obedience to their mother, during their minority,
as to their father, were he alive? And will any one say that the mother
hath a legislative power over her children that she can make standing
rules which shall be of perpetual obligation, by which they ought to
regulate all the concerns of their property, and bound their liberty all
the course of their lives, and enforce the observation of them with
capital punishments? For this is the proper power of the magistrate, of
which the father hath not so much as the shadow. His command over his
children is but temporary, and reaches not their life or property. It is
but a help to the weakness and imperfection of their nonage, a discipline
necessary to their education. And though a father may dispose of his own
possessions as he pleases when his children are out of danger of perishing
for want, yet his power extends not to the lives or goods which either
their own industry, or another's bounty, has made theirs, nor to their
liberty neither when they are once arrived to the enfranchisement of the
years of discretion. The father's empire then ceases, and he can from
thenceforward no more dispose of the liberty of his son than that of any
other man. And it must be far from an absolute or perpetual jurisdiction
from which a man may withdraw himself, having licence from Divine
authority to "leave father and mother and cleave to his wife." § 66.
But though there be a time when a child comes to be as free from
subjection to the will and command of his father as he himself is free
from subjection to the will of anybody else, and they are both under no
other restraint but that which is common to them both, whether it be the
law of Nature or municipal law of their country, yet this freedom exempts
not a son from that honour which he ought, by the law of God and Nature,
to pay his parents, God having made the parents instruments in His great
design of continuing the race of mankind and the occasions of life to
their children. As He hath laid on them an obligation to nourish,
preserve, and bring up their offspring, so He has laid on the children a
perpetual obligation of honouring their parents, which, containing in it
an inward esteem and reverence to be shown by all outward expressions,
ties up the child from anything that may ever injure or affront, disturb
or endanger the happiness or life of those from whom he received his, and
engages him in all actions of defence, relief, assistance, and comfort of
those by whose means he entered into being and has been made capable of
any enjoyments of life. From this obligation no state, no freedom, can
absolve children. But this is very far from giving parents a power of
command over their children, or an authority to make laws and dispose as
they please of their lives or liberties. It is one thing to owe honour,
respect, gratitude, and assistance; another to require an absolute
obedience and submission. The honour due to parents a monarch on his
throne owes his mother, and yet this lessens not his authority nor
subjects him to her government. § 67.
The subjection of a minor places in the father a temporary government
which terminates with the minority of the child; and the honour due from a
child places in the parents a perpetual right to respect, reverence,
support, and compliance, to more or less, as the father's care, cost, and
kindness in his education has been more or less, and this ends not with
minority, but holds in all parts and conditions of a man's life. The want
of distinguishing these two powers which the father hath, in the right of
tuition, during minority, and the right of honour all his life, may
perhaps have caused a great part of the mistakes about this matter. For,
to speak properly of them, the first of these is rather the privilege of
children and duty of parents than any prerogative of paternal power. The
nourishment and education of their children is a charge so incumbent on
parents for their children's good, that nothing can absolve them from
taking care of it. And though the power of commanding and chastising them
go along with it, yet God hath woven into the principles of human nature
such a tenderness for their offspring, that there is little fear that
parents should use their power with too much rigour; the excess is seldom
on the severe side, the strong bias of nature drawing the other way. And
therefore God Almighty, when He would express His gentle dealing with the
Israelites, He tells them that though He chastened them, "He
chastened them as a man chastens his son" (Deut. 8:5) - i.e., with
tenderness and affection, and kept them under no severer discipline than
what was absolutely best for them, and had been less kindness, to have
slackened. This is that power to which children are commanded obedience,
that the pains and care of their parents may not be increased or
ill-rewarded. § 68.
On the other side, honour and support all that which gratitude requires to
return; for the benefits received by and from them is the indispensable
duty of the child and the proper privilege of the parents. This is
intended for the parents' advantage, as the other is for the child's;
though education, the parents' duty, seems to have most power, because the
ignorance and infirmities of childhood stand in need of restraint and
correction, which is a visible exercise of rule and a kind of dominion.
And that duty which is comprehended in the word "honour"
requires less obedience, though the obligation be stronger on grown than
younger children. For who can think the command, "Children, obey your
parents," requires in a man tat has children of his own the same
submission to his father as it does in his yet young children to him, and
that by this precept he were bound to obey all his father's commands, if,
out of a conceit of authority, he should have the indiscretion to treat
him still as a boy? § 69.
The first part, then, of paternal power, or rather duty, which is
education, belongs so to the father that it terminates at a certain
season. When the business of education is over it ceases of itself, and is
also alienable before. For a man may put the tuition of his son in other
hands; and he that has made his son an apprentice to another has
discharged him, during that time, of a great part of his obedience, both
to himself and to his mother. But all the duty of honour, the other part,
remains nevertheless entire to them; nothing can cancel that. It is so
inseparable from them both, that the father's authority cannot dispossess
the mother of this right, nor can any man discharge his son from honouring
her that bore him. But both these are very far from a power to make laws,
and enforcing them with penalties that may reach estate, liberty, limbs,
and life. The power of commanding ends with non-age, and though after that
honour and respect, support and defence, and whatsoever gratitude can
oblige a man to, for the highest benefits he is naturally capable of be
always due from a son to his parents, yet all this puts no sceptre into
the father's hand, no sovereign power of commanding. He has no dominion
over his son's property or actions, nor any right that his will should
prescribe to his son's in all things; however, it may become his son in
many things, not very inconvenient to him and his family, to pay a
deference to it. § 70.
A man may owe honour and respect to an ancient or wise man, defence to his
child or friend, relief and support to the distressed, and gratitude to a
benefactor, to such a degree that all he has, all he can do, cannot
sufficiently pay it. But all these give no authority, no right of making
laws to any one over him from whom they are owing. And it is plain all
this is due, not to the bare title of father, not only because as has been
said, it is owing to the mother too, but because these obligations to
parents, and the degrees of what is required of children, may be varied by
the different care and kindness trouble and expense, is often employed
upon one child more than another. § 71.
This shows the reason how it comes to pass that parents in societies,
where they themselves are subjects, retain a power over their children and
have as much right to their subjection as those who are in the state of
Nature, which could not possibly be if all political power were only
paternal, and that, in truth, they were one and the same thing; for then,
all paternal power being in the prince, the subject could naturally have
none of it. But these two powers, political and paternal, are so perfectly
distinct and separate, and built upon so different foundations, and given
to so different ends, that every subject that is a father has as much a
paternal power over his children as the prince has over his. And every
prince that has parents owes them as much filial duty and obedience as the
meanest of his subjects do to theirs, and can therefore contain not any
part or degree of that kind of dominion which a prince or magistrate has
over his subject. § 72.
Though the obligation on the parents to bring up their children, and the
obligation on children to honour their parents, contain all the power, on
the one hand, and submission on the other, which are proper to this
relation, yet there is another power ordinarily in the father, whereby he
has a tie on the obedience of his children, which, though it be common to
him with other men, yet the occasions of showing it, almost constantly
happening to fathers in their private families and in instances of it
elsewhere being rare, and less taken notice of, it passes in the world for
a part of "paternal jurisdiction." And this is the power men
generally have to bestow their estates on those who please them best. The
possession of the father being the expectation and inheritance of the
children ordinarily, in certain proportions, according to the law and
custom of each country, yet it is commonly in the father's power to bestow
it with a more sparing or liberal hand, according as the behaviour of this
or that child hath comported with his will and humour. § 73.
This is no small tie to the obedience of children; and there being always
annexed to the enjoyment of land a submission to the government of the
country of which that land is a part, it has been commonly supposed that a
father could oblige his posterity to that government of which he himself
was a subject, that his compact held them; whereas, it being only a
necessary condition annexed to the land which is under that government,
reaches only those who will take it on that condition, and so is no
natural tie or engagement, but a voluntary submission; for every man's
children being, by Nature, as free as himself or any of his ancestors ever
were, may, whilst they are in that freedom, choose what society they will
join themselves to, what commonwealth they will put themselves under. But
if they will enjoy the inheritance of their ancestors, they must take it
on the same terms their ancestors had it, and submit to all the conditions
annexed to such a possession. By this power, indeed, fathers oblige their
children to obedience to themselves even when they are past minority, and
most commonly, too, subject them to this or that political power. But
neither of these by any peculiar right of fatherhood, but by the reward
they have in their hands to enforce and recompense such a compliance, and
is no more power than what a Frenchman has over an Englishman, who, by the
hopes of an estate he will leave him, will certainly have a strong tie on
his obedience; and if when it is left him, he will enjoy it, he must
certainly take it upon the conditions annexed to the possession of land in
that country where it lies, whether it be France or England. § 74.
To conclude, then, though the father's power of commanding extends no
farther than the minority of his children, and to a degree only fit for
the discipline and government of that age; and though that honour and
respect, and all that which the Latins called piety, which they
indispensably owe to their parents all their lifetime, and in all estates,
with all that support and defence, is due to them, gives the father no
power of governing - i.e., making laws and exacting penalties on his
children; though by this he has no dominion over the property or actions
of his son, yet it is obvious to conceive how easy it was, in the first
ages of the world, and in places still where the thinness of people gives
families leave to separate into unpossessed quarters, and they have room
to remove and plant themselves in yet vacant habitations, for the father
of the family to become the prince of it; he had been a ruler from the
beginning of the infancy of his children; and when they were grown up,
since without some government it would be hard for them to live together,
it was likeliest it should, by the express or tacit consent of the
children, be in the father, where it seemed, without any change, barely to
continue. And when, indeed, nothing more was required to it than the
permitting the father to exercise alone in his family that executive power
of the law of Nature which every free man naturally hath, and by that
permission resigning up to him a monarchical power whilst they remained in
it. But that this was not by any paternal right, but only by the consent
of his children, is evident from hence, that nobody doubts but if a
stranger, whom chance or business had brought to his family, had there
killed any of his children, or committed any other act, he might condemn
and put him to death, or otherwise have punished him as well as any of his
children which was impossible he should do by virtue of any paternal
authority over one who was not his child, but by virtue of that executive
power of the law of Nature which, as a man, he had a right to; and he
alone could punish him in his family where the respect of his children had
laid by the exercise of such a power, to give way to the dignity and
authority they were willing should remain in him above the rest of his
family. § 75.
Thus it was easy and almost natural for children, by a tacit and almost
natural consent, to make way for the father's authority and government.
They had been accustomed in their childhood to follow his direction, and
to refer their little differences to him; and when they were men, who was
fitter to rule them? Their little properties and less covetousness seldom
afforded greater controversies; and when any should arise, where could
they have a fitter umpire than he, by whose care they had every one been
sustained and brought up. and who had a tenderness for them all? It is no
wonder that they made no distinction betwixt minority and full age, nor
looked after one-and-twenty, or any other age, that might make them the
free disposers of themselves and fortunes, when they could have no desire
to be out of their pupilage. The government they had been under during it
continued still to be more their protection than restraint; and they could
nowhere find a greater security to their peace, liberties, and fortunes
than in the rule of a father. § 76.
Thus the natural fathers of families, by an insensible change, became the
politic monarchs of them too; and as they chanced to live long, and leave
able and worthy heirs for several successions or otherwise, so they laid
the foundations of hereditary or elective kingdoms under several
constitutions and manors, according as chance, contrivance, or occasions
happened to mould them. But if princes have their titles in the father's
right, and it be a sufficient proof of the natural right of fathers to
political authority, because they commonly were those in whose hands we
find, de facto, the exercise of government, I say, if this argument be
good, it will as strongly prove that all princes, nay, princes only, ought
to be priests, since it is as certain that in the beginning "the
father of the family was priest, as that he was ruler in his own
household." |
|
BOOK
II, CHAPTER 7 § 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. § 78.
Conjugal society is made by a voluntary compact between man and woman, and
though 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 offspring, who have a right to be nourished and maintained
by them till they are able to provide for themselves. § 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 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
vivaporous 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 offspring 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 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 wings and provide for themselves. § 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 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 choose new mates.
Wherein one cannot but admire the wisdom of the great Creator, who, having
given to man an ability to lay up for the future as well as 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. § 81.
But though these are ties upon mankind which make the conjugal bonds more
firm and lasting in a man than the other species of animals, yet it would
give one reason to inquire 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. § 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
true possession of what by contract is her peculiar right, and at least
gives the husband no more power over her than she has over his life; 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. § 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 doth
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 these countries where the husband is allowed no such absolute
authority. But the ends of matrimony requiring no such power in the
husband, it was not at all necessary to it. The condition of conjugal
society put it not in him; but whatsoever might consist with procreation
and support of the children till they could shift for themselves - mutual
assistance, comfort, and maintenance - might be varied and regulated by
that contract which first united them in that society, nothing being
necessary to any society that is not necessary to the ends for which it is
made. § 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 anything of it; and I
think it is plain that it is far different from a politic society. § 85.
Master and servant are names as old as history, but given to those of far
different condition; for a free man 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
servant 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. § 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, with what resemblance soever it may have in its
order, offices, and number too, with a little commonwealth, 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. § 87.
Man being born, as has been proved, with a title to perfect freedom and an
uncontrolled 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, and by understanding indifferent rules and men
authorised by the community for their execution, 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 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
showed it, the perfect state of Nature. § 88.
And thus the commonwealth comes by a power to set down what punishment
shall belong to the several transgressions 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
entered into society has 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 up a right to
the commonwealth to employ his force for the execution of the judgments of
the commonwealth whenever he shall be called to it, which, indeed, are his
own judgements, 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 commonwealth; and also 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. § 89.
Wherever, therefore, any number of men so unite 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 wherever 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 authorises 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 commonwealth, 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 wherever 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. § 90.
And hence it is evident that absolute monarchy, which by some men is
counted for 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 inconveniences 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. Wherever any persons
are who have not such an authority to appeal to, and decide 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. § 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 whence relief and redress may be expected of any injury or
inconveniency that may be suffered from him, or by his order. So that such
a man, however entitled, 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
the rest of mankind. For wherever 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 woeful
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, according to the best of his power to maintain it; but 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 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. § 92.
For he that thinks absolute power purifies men's blood, and corrects the
baseness of human nature, need read but the history of this, or any other
age, to be convinced to the contrary. He that would have been insolent and
injurious in the woods of America would not probably be much better on 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. § 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 a power to
do more hurt and wrong, it is right when he does it. To ask how you may be
guarded from 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 polecats or
foxes, but are content, nay, think it safety, to be devoured by lions. § 94.
But, whatever flatterers may talk to amuse people's understandings, it
never hinders men from feeling; and when they perceive that any man, in
what station soever, is out of the bounds of the civil society 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 showed 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 to 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
legislative was so 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 dependants. 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. |
|
BOOK
II, CHAPTER 8 § 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, which is done 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. § 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 one body, must 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 empowered to act by positive laws where no number
is set by that positive law which empowers 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. § 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, who may submit himself and consent to any acts of it
if he thinks fit. § 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 anything to be the act of the whole, which,
considering the infirmities of health and avocations of business, which in
a number though much less than that of a commonwealth, will necessarily
keep many away from the public assembly; and the variety of opinions and
contrariety of interests which unavoidably happen in all collections of
men, it is next impossible ever to be had. And, therefore, if coming into
society be upon such terms, it will be only like Cato's coming into the
theatre, tantum ut exiret. 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 born 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. § 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 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. § 100.
To this I find two objections made: 1. 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.
2. 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. § 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 inconveniencies of that condition, and the
love and want of society, no sooner brought any number of them together,
but they presently united and in corporated 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 embodied in armies.
Government is everywhere 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 anything of it, they are
beholding 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. § 102.
He must show 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" (lib. i. cap. 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 away not 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. § 103.
And I hope those who went away from Sparta, with Palantus, mentioned by
Justin, 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 least
an argument from what has been to what should of right be of 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. § 104.
But, to conclude: reason being plain on our side that men are naturally
free; and the examples of history showing 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. § 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 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 incapable, they pass him by,
and set up the stoutest and bravest man for their ruler. § 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. § 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 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 inconveniencies 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 where there was but very little property, and wanted
not variety of rulers and abundance of officers to direct and look after
their execution where there were but few trespassers and few offenders.
Since, then, those who liked 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 choose 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. § 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, ye t 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, though the war itself, which admits not of
pluralities of governors, naturally evolves the command into the king's
sole authority. § 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 at the
heads of their forces) appears plainly in the story of Jephtha. The
Ammonites making war upon Israel, the Gileadites, in fear, send to
Jephtha, 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" (Judges 11:11), which was, as it seems, all
one as to be judge. "And he judged Israel" (Judges 12:7) - 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 for, and delivered you out of the hands of
Midian" (Judges 9:17). 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" (1 Sam. 8:20), 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" (ch. 9:16). 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"
(ch. 10:1). And therefore those who, after Saul being solemnly chosen and
saluted king by the tribes at Mispah, were unwilling to have him their
king, make no other objection but this, "How shall this man save
us?" (ch. 10:27), 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" (ch. 13, 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
leddest 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." § 110.
Thus, whether a family, by degrees, grew up into a commonwealth, 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, united
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. It was given them for the public good and safety, and to those
ends, in the infancies of commonwealths, they commonly used it; and unless
they had done so, young societies could not have subsisted. Without such
nursing fathers, without this care of the governors, all governments would
have sunk under the weakness and infirmities of their infancy, the prince
and the people had soon perished together. § 111.
But the golden age (though 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 government. 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 entrusted in another's hands, only for their own good, they
found was made use of to hurt them. § 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 choose
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 show 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.: § 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 anybody, upon this supposition, can show
me any one man, in any age of the world, free to begin a lawful monarchy,
I will be bound to show 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
show us which that is, which, when they have done, I doubt not but all
mankind will easily agree to pay obedience to him. § 114.
Though it be a sufficient answer to their objection to show 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. § 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 but only one
universal monarchy if men had not been at liberty to separate themselves
from their families and their 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. § 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 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 anybody else. He may, indeed, annex such conditions to the
land he enjoyed, as a subject of any commonwealth, 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. § 117.
And this has generally given the occasion to the 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 commonweal. And thus the consent of free
men, 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. § 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 Englishwoman 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 whoever was judged as a traitor 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 nor government. He is under his father's tuition and authority
till he come to age of discretion, and then he is a free man, 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 being a
subject of that 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 anywhere else? Since the power that a father
hath naturally over his children is the same wherever they be born, and
the ties of natural obligations are not bounded by the positive limits of
kingdoms and commonwealths. § 119.
Every man being, as has been showed, 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. Nobody 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 possession or
enjoyment of any part of the dominions of any government doth hereby 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. § 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, annexes 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, and the property of the land, is a
subject. By the same act, therefore, whereby any one unites his person,
which was before free, to any commonwealth, 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 commonwealth as long as it hath a being. Whoever therefore, from
thenceforth, by inheritance, purchases permission, or otherwise enjoys any
part of the land so annexed to, and under the government of that
commonweal, must take it with the condition it is under - that is, of
submitting to the government of the commonwealth, under whose jurisdiction
it is, as far forth as any subject of it. § 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 commonwealth, or 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
commonweal, 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. § 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; it 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 law
extends. But this no more makes a man a member of that society, a
perpetual subject of that commonwealth, 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
denizen, yet do not thereby come to be subjects or members of that
commonwealth. 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 commonwealth. |
|
BOOK
II, CHAPTER 9 § 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 nobody, why will he part with his freedom, this empire, and
subject himself to the dominion and control 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
insecure. This makes him willing to quit this 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. § 124.
The great and chief end, therefore, of men 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. Firstly, 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 biased 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. § 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, make them too
remiss in other men's. § 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. § 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 that 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 authorised 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. § 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 viciousness of
degenerate men, there would be no need of any other, no necessity that men
should separate from this great and natural community, and associate into
lesser combinations. 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
political society, and incorporates into any commonwealth separate from
the rest of mankind. § 129.
The first power - viz., of doing whatsoever he thought fit 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. § 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. § 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 commonwealth, 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. |
|
BOOK
II, CHAPTER 10 § 132.
THE majority having, as has been showed, 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 a
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 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 commonwealth. § 133.
By "commonwealth" I must be understood all along to mean not a
democracy, or any form of government, but any independent community which
the Latins signified by the word civitas, to which the word which best
answers in our language is "commonwealth," and most properly
expresses such a society of men which "community" does not (for
there may be subordinate communities in a government), and
"city" much less. And therefore, to avoid ambiguity, I crave
leave to use the word "commonwealth" in that sense, in which
sense I find the word used by King James himself, which I think to be its
genuine signification, which, if anybody dislike, I consent with him to
change it for a better. |
|
BOOK
II, CHAPTER 11 § 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 commonwealth, but sacred and
unalterable in the hands where the community have once placed it. Nor can
any edict of anybody 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 nobody 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. "Of this point,
therefore, we are to note that such 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 soever, are available by consent." Hooker, Ibid. § 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 commonwealth, 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 it up to the
community. For nobody can transfer to another more power than he has in
himself, and nobody 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 doth, or can give up to the
commonwealth, 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 enforce 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. § 136.
Secondly, the legislative or supreme authority cannot assume to itself 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 authorised judges. For the law of Nature being unwritten, and so
nowhere 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 aught, 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 punish delinquents. To avoid
these inconveniencies which disorder men's properties 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
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. § 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 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 that is exposed to the arbitrary power of one
man who has the command of a hundred thousand than he that is exposed to
the arbitrary power of a hundred thousand single men, nobody being secure,
that his will who has such a command is better than that of other men,
though his force be a hundred thousand times stronger. And, therefore,
whatever form the commonwealth 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 pwer 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 due bounds, and not be tempted by the power they
have in their hands to employ it to purposes, and by such measures as they
would not have known, and own not willingly. § 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 theirs,
that nobody hath a right to take them, or any part of them, 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 commonwealth 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, though 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. § 139.
But government, into whosesoever hands it is put, being as I have before
shown, entrusted 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 commonwealth,
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 sergeant 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 not obeying the most desperate orders, cannot
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 anything, 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. § 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? § 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 commonwealth, which is by constituting the legislative, and
appointing in whose hands that shall be. And when the people have said,
"We will submit, and be governed by laws made by such men, and in
such forms," nobody else can say other men shall make laws for them;
nor can they be bound by any laws but such as are enacted by those whom
they have chosen and authorised to make laws for them. § 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
commonwealth, 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
countryman 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:
Legislative neither must nor can transfer the power of making laws to
anybody else, or place it anywhere but where the people have. |
|
BOOK
II, CHAPTER 12 § 143.
THE legislative power is that which has a right to direct how the force of
the commonwealth shall be employed for preserving the community and the
members of it. 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 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
considered 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. § 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. § 145.
There is another power in every commonwealth 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 commonwealth the members
of it are distinct persons, still, in reference to one another, and, as
such, are 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, so 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. § 146.
This, therefore, contains the power of war and peace, leagues and
alliances, and all the transactions with all persons and communities
without the commonwealth, and may be called federative if any one pleases.
So the thing be understood, I am indifferent as to the name. § 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 itself 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 commonwealth, 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 commonwealth. § 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 commonwealth 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. |
|
BOOK
II, CHAPTER 13 § 149.
THOUGH in a constituted commonwealth 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 anybody, 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, whenever
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. § 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 every member
of the society prescribing rules to their actions, 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. § 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 commonwealth, 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; the members
owing no obedience but to the public will of the society. § 152.
The executive power placed anywhere 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 commonwealth. § 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 mal-administration 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 shown,
in a constituted commonwealth 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 legislative 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. § 154.
If the legislative, or any part of it, be of representatives, chosen for
that time by the people, which afterwards return into the ordinary state
of subjects, and have no share in the legislative but upon a new choice,
this power of choosing 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. § 155.
It may be demanded here, what if the executive power, being possessed of
the force of the commonwealth, 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. § 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 commonwealth, 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 imminent
hazard on one side or the other, by fixed intervals and periods set to the
meeting and acting of the legislative, but to entrust 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 entrusted 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 show 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. § 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 time
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, send 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; though 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. § 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 proporton 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 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 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. It is 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 choose
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 proposed to them so to do. |
|
BOOK
II, CHAPTER 14 § 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; nay,
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; it is fit the ruler should have a power in many cases to mitigate
the severity of the law, and pardon some offenders, since 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. § 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 law-making 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 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. § 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 or questioning of prerogative whilst it is in any
tolerable degree employed for the use it was meant - that is, 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. § 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 suppled 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 declared limitations of
prerogative in those 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. § 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 anything 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 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 anybody; since nobody 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, such as have set rulers over themselves, to guard and promote that
good; but are to be looked on as a 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. § 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 a 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 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. § 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, or if any human frailty or mistake (for princes are
but men, made as others) appeared in some small declinations from that
end, yet it was 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 conformably to the foundation and end of all laws - the public
good. § 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 anybody 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." § 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 occasion 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 best subservient to the public
good and best suit the ends of parliament. § 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?" I 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 anybody 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, are deprived of their right, or are
under the exercise of a power without right, having no appeal on earth
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 reserved
that ultimate determination to themselves which belongs to all mankind,
where there lies no appeal on earth, by a law antecedent and paramount to
all positive laws of men, whether they have just cause to make their
appeal to Heaven. And this judgement 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 inconvenience is so great that the majority feel it, and are weary of
it, and find a necessity to have it amended. And 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. |
|
BOOK
II, CHAPTER 15 § 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. § 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 bycapable, I say, to know it, as well as several others, who
live as free men under that law. The affection and tenderness God hath
planted in the breasts 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
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 anybody else, or keep the child in subjection to the will of his
parents when grown to a man and the perfect use of reason, any farther
than as 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, it is 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. § 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. § 172.
Thirdly, despotical power is an absolute, arbitrary power one man has over
another, to take away his life whenever he pleases; and 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 peaceable ways which that teaches, and made use of force
to compass his unjust ends upon another where he has no right, he renders
himself liable to be destroyed by his adversary whenever he can, as any
other noxious and brutish creature that is destructive to his being. 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. § 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. § 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. |
|
BOOK
II, CHAPTER 16 § 175.
THOUGH governments can originally have no other rise than that before
mentioned, nor polities be founded on anything 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 a house is from building a
new one in the place. Indeed, it often makes way for a new frame of a
commonwealth by destroying the former; but, without the consent of the
people, can never erect a new one. § 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 pirates 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 courtno 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. § 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 free men 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 show they are sacrifices to their leader's 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 free men and no subjects by conquest, let
that give what dominion it will. And if I or anybody 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. § 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. § 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 injustice 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 conqueror's 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. § 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 swords. § 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. § 182.
But because the miscarriages of the father are no faults of the children,
who 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, and 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 through infancy or
choice, they have done nothing to forfeit them, nor has the conqueror any
right to take them away by the bare right 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, but 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. § 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 is come 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 hers. 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. § 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 of an extent any way
coming near what I had overrun of his, and equally cultivated too. 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 phantastical 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 disseised, 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 thousand; 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 their 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. § 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. § 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 inquiry
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., choose 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 anything
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. § 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. § 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. § 189.
I 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 free men, 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
lawful authority, whilst force, and not choice, compels them to
submission. § 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. § 191.
By the first of these, a man is naturally free from subjection to any
government, though 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. § 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 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 (which they can never be supposed to do, till
either they are put in a full state of liberty to choose 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 nobody can take away any part of it
without their own consent, without which, men under any government are not
in the state of free men, but are direct slaves under the force of war).
And who doubts but the Grecian Christians, descendants of the ancient
possessors of that country, may justly cast off the Turkish yoke they have
so long groaned under, whenever they have a power to do it? § 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 free men, 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. § 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 L50 or L500 per annum. 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 but power enough to dissolve them
at any time, and all the grants and promises of men in power are but
mockery and collusion. For can there be anything more ridiculous than to
say, I give you and yours 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? § 195.
I 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. Nobody, 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! § 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, and 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 be conquered Italy, 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" (II Kings 18:7).
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 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 till this time. |
|
BOOK
II, CHAPTER 17 § 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. § 198.
In all lawful governments the designation of the persons who are to bear
rule being as natural and necessary a part as the form of the government
itself, and 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, yet appoint no way to design the
person that shall have the power and be the monarch - all commonwealths,
therefore, with the form of government established, have rules also of
appointing and conveying the right to those who are to have any share in
the public authority; and 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. |
|
BOOK
II, CHAPTER 18 § 199.
As usurpation is the exercise of power which another hath a right to, so
tyranny is the exercise of power beyond right, which nobody 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 entitled, 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. § 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, in his speech to the Parliament, 16O3, 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, pests, both
against them and the commonwealth." Thus, that learned king, who well
understood the notions 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. § 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. § 202.
Wherever 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 empower 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 exceeding the bounds of authority is no more a right in a great
than a petty officer, no more justifiable in a king than a constable. But
so much the worse in him as that he has more trust put in him, is
supposed, from the advantage of education and counsellors, to have better
knowledge and less reason to do it, having already a greater share than
the rest of his brethren. § 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. § 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- § 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 showed 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. § 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 authorises
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 empower 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. § 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,
endanger 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 on the
highway, when perhaps I have not 12d. in my pocket. This man I may
lawfully kill. To another I deliver L100 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. 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 might have the benefit of
appealing to the law, and have reparation for my £100 that way. § 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 madman or heady malcontent to overturn a well-settled state,
the people being as little apt to follow the one as the other. § 209.
But if either these illegal acts have extended to the majority of the
people, or if the mischief and oppression has light 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 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. § 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, though 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, and a long train of acting show the
counsels 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 a 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? |
|
BOOK
II, CHAPTER 19 § 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 commonwealth. The
usual, and almost only way whereby this union is dissolved, is the inroad
of foreign force making a conquest upon them. For in that case (not being
able to maintain and support themselves as one entire 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 a house to subsist when the materials of it are scattered and
displaced by a whirlwind, or jumbled into a confused heap by an
earthquake. § 212.
Besides this overturning 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 commonwealth; from hence the several members have their
mutual influence, sympathy, and connection; 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 authorised 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 anything 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. § 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: - First, 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. Secondly, an
assembly of hereditary nobility. Thirdly, an assembly of representatives
chosen, pro tempore, by the people. Such a form of government supposed, it
is evident: § 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 declared 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 enforced 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 authorised, 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. § 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. § 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 authorised thereunto do choose, or
in another way than what the society hath prescribed, those chosen are not
the legislative appointed by the people. § 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 entire, free,
independent society to be governed by its own laws, this is lost whenever
they are given up into the power of another. § 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 incapable of control; he alone is in a condition to make
great advances towards 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. § 219.
There is one way more whereby such a government may be dissolved, and that
is: When he who has the supreme 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 effectively 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 connection. 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 inconceivable
to human capacity, and inconsistent with human society. § 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 free men. This, if barely so, is rather
mockery than relief, and men can never be secure from untyranny if there
be no means to escape it till they are perfectly der it; and, therefore,
it is that they have not only a right to get out of it, but to prevent it. § 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. For 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. § 222.
The reason why men enter into society is the preservation of their
property; and the end while they choose and authorise a legislative is
that there may be laws made, and rules set, as guards and fences to the
properties of all 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 employs the force, treasure, and offices of the society to
corrupt the representatives and gain them to his purposes, when he openly
pre-engages the electors, and prescribes, to their choice, such whom he
has, by solicitation, threats, promises, or otherwise, won to his designs,
and employs them to bring in such who have promised beforehand 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 commonwealth 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 that 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. § 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 [that] 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. § 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 authorised 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. § 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
borne 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 rouse 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. § 226.
Thirdly: I answer, that this power in the people of providing for their
safety anew 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 probable 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 rebel are - 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 proper way to prevent the evil is to show them the
danger and injustice of it who are under the greatest temptation to run
into it. § 227.
In both the forementioned 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
nobody can have but by the appointment and consent of the people, and so
destroying the authority which the people did, and nobody else can, set
up, and introducing a power which the people hath not authorised, 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 shown, 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. § 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 neighbour's. 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 kind of a 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. Who
would not think it an admirable peace betwixt 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. 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 showing [what] inconveniencies might happen if they
should offer to resist Polyphemus, who had now the power over them. § 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? § 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
persuasion 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 in such a posture that they would not have them
thought 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 people's 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, he is 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. § 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. § 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 show 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 et furori jugulum
semper praebebit? Ergone multitudo civitates suas fame, ferro, et flamma
vastari, seque, conjuges, et liberos fortunae ludibrio et tyranni libidini
exponi, inque omnia vitae pericula omnesque miserias et molestias a rege
deduci patientur? Num illis quod omni animantium generi est a natura
tributum, denegari debet, ut sc. vim vi repellant, seseque 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
et 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: et restituen - dae injuriae
illatae, non recedendi a debita reverentia propter acceptum injuriam. Praesentem
denique impetum propulsandi non vim praeteritam ulciscendi jus habet. Horum
enim alterum a natura est, ut vitani 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 intoler - abilis tyrannis est (modicum enim
ferre omnino debet) resistere cum reverentia possit." - Barclay,
Contra Monarchomachos, iii. 8. In English thus: § 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 show an
hatred, not only to some particular persons, but sets himself against the
body of the commonwealth, whereof he is the head, and shall, with
intolerable ill-usage, cruelly tyrannise over the whole, 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." § 234.
Thus far that great advocate of monarchical power allows of resistance. § 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, et 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 anybody 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, deserve for his pains a civil,
respectful cudgelling wherever 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 aggressor 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 unking himself. His words are: "Quid ergo, nulline
casus incidere possunt quibus populo sese erigere atque in regem
impotentius dominantem arma capere et invadere jure suo suaque authoritate
liceat? Nulli certe quamdiu rex manet. Semper enim ex divinis id obstat,
Regem honorificato, et qui potestati resistit, Dei ordinationi resistit;
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 et superior efficitur,
reverso ad eum scilicet 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 et omni honore et
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 meditatur et
molitur serio, omnem regnandi curam et animum ilico abjicit, ac proinde
imperium in subditos amittit, ut dominus servi pro derelicto habiti,
dominium. § 236.
"Arlter casus est, si rex in alicujus clientelam se contulit, ac
regnum quod liberum a majoribus et 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
amisit, ut summus scilicet in regno secundum Deum sit, et solo Deo
inferior, atque populum etiam totum ignorantem vel invitum, cujus
libertatem sartam et tectam conservare debuit, in alterius gentis ditionem
et potestatem dedidit; hac velut quadam rengi abalienatione 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 et suae
potestatis populum relinquit, cujus rei exemplum unum annales Scotici
suppeditant." - Barclay, Contra Monarchomachos, I. iii., c. 16. Which
may be thus Englished: § 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 wished 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 commonwealth, and, consequently, forfeits the power of
governing his subjects, as a master does the dominion over his slaves whom
he hath abandoned. § 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." § 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 that he instances 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.
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 "Mirror,"
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 - slavery. § 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? § 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 Jephtha
did. § 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 such 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
nowhere 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. § 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 commonwealth, 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 of their rulers, 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 place it in a new form, or new
hands, as they think good. |