APP forward: The reasonfor presenting Locke and other papers such as the Magna Carta and Rightsof the Colonists, are to educate people to the foundations that have developedinto our freedoms establishment in 1776.
Both the Rights of the Colonists and Locke present historical factof "State Church" atrocities at that time from blind obediance to leaders;These issues are commonly known by most people and should be viewed as asimple historical establishment of reasoning and not to shed any dim lighton modern establishments. His observations set forth a clear warning as tothe necessity of correct placement of powers. See also Locke on Church, Stateand Man.
Locke presents essential lessons in his observations that were grasped byour Founders. And though he, as a British subject, presents some views asa british subject (owing some powers that freedom would not accept - in hisgiving such powers to the "magistrate" - See Rights of the Colonists) his writtings present fundamentalreasoning which is very important to understand in regard to Freedom andCommon Law. To this purpose we present John Locke:
The Contents of Book 2
Chapter 1. Of Political Power
Chapter 2. Of the State of Nature
Chapter 3. Of the State of War
Chapter 4. Of Slavery
Chapter 5. Of Property
Chapter 6. Of Paternal Power
Chapter 7. Of Political or Civil Society
Chapter 8. Of the Beginning of Political Societies
Chapter 9. Of the Ends of Political Society and Government
Chapter 10. Of the Forms of a Commonwealth
Chapter 11. Of the Extent of the Legislative Power
Chapter 12. The Legislative, Executive, and
Federative Power of the Commonwealth
Chapter 13. Of the Subordination of the Powers of the Commonwealth
Chapter 14. Of Prerogative
Chapter 15. Of Paternal, Political and Despotical Power
Chapter 16. Of Conquest
Chapter 17. Of Usurpation
Chapter 18. Of Tyranny
Chapter 19. Of the Dissolution of Government
Chapter 1: Of Political Power
1. It having been shown in the foregoingdiscourse:1
Firstly. That Adam had not, either bynatural right of fatherhood or by positive donation from God, any such authorityover his children, nor dominion over the world, as is pretended.
Secondly. That if he had, his heirsyet had no right to it.
Thirdly. That if his heirs had, therebeing no law of Nature nor positive law of God that determines which is theright heir in all cases that may arise, the right of succession, and consequentlyof bearing rule, could not have been certainly determined.
Fourthly. That if even that had beendetermined, yet the knowledge of which is the eldest line of Adam's posteritybeing so long since utterly lost, that in the races of mankind andfamilies of the world, there remains not to one above another the least pretenceto be the eldest house, and to have the right of inheritance.
All these promises having, as I think, been clearly made out, it is impossiblethat the rulers now on earth should make any benefit, or derive any the leastshadow 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 willnot give just occasion to think that all government in the world is the productonly of force and violence,
and that men live together by no other rules but that of beasts, where thestrongest 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 cryout against), must of necessity find out another rise of government,another original of political power, and another way of designing and knowingthe persons that have it than what Sir Robert Filmer hath taught us.
2. To this purpose, I think it may notbe amiss to set down what I take to be political power. That the power ofa magistrate over a subject may be distinguished from that of a father overhis children, a master over his servant, a husband over his wife, and a lordover his slave. All which distinct powers happening sometimes together inthe same man, if he be considered under these different relations, it mayhelp us to distinguish these powers one from another,
and show the difference betwixt a ruler of a commonwealth, a father ofa family, anda captainof a galley.
3. Political power, then, I take tobe a right of making laws, with penalties of death, and consequently allless penalties for the regulating and preserving of property, andof employing the force of the community in the execution of such laws, andin the defence of the commonwealth from foreign injury, and all this onlyfor the public good.
Chapter 2: Of the State of Nature
4. To understand political power aright,and derive it from its original, we must consider what estate all men arenaturally in, and that is, a state of perfect freedom to order their actions,and dispose of their possessions and persons as they think fit, withinthe bounds of the law of Nature, without asking leave or dependingupon 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 speciesand 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 declarationof his will, set one above another,
and confer on him, by an evident and clear appointment, an undoubted rightto dominion and sovereignty.
5. This equality of men by Nature, thejudicious Hooker looks upon as so evident in itself, (We hold these truthsto be self-evident) and beyond all question, that he makes it the foundationof that obligation to mutual love amongst men on which he builds the dutiesthey owe one another, and from whence he derives the great maxims of justiceand charity. His words are:
"The like natural inducement hath brought men to know that it is no lesstheir duty to love others than themselves, for seeing those things whichare equal, must needs all have one measure; if I cannot but wish to receivegood, even as much at every man's hands, as any man can wish unto his ownsoul, how should I look to have any part of my desire herein satisfied, unlessmyself be careful to satisfy the like desire, which is undoubtedly in othermen weak, being of one and the same nature: to have anything offered themrepugnant to this desire must needs, in all respects, grieve them as muchas me; so that if I do harm, I must look to suffer, there being no reasonthat others should show greater measure of love to me than they have by meshowed 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 tothemward fully the like affection. From which relation of equality betweenourselves and them that are as ourselves, what several rules and canons naturalreason hath drawn for direction of life no man is ignorant." (Eccl. Pol.i.)2
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 hisperson or possessions, yet he has not liberty to destroy himself, orso much as any creature in his possession, but where some nobleruse than its bare preservation calls for it. The "State of Nature" has a "Law of Nature" to govern it, which obligesevery one, and REASON, which is that law, teaches all mankind whowill but consult it, that being all equal and independent, no one ought toharm another in his life, health, liberty or possessions; for men being allthe workmanship of one omnipotent and infinitely wise Maker; all theservants of one sovereign Master, sent into the world by His order and aboutHis 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 suchsubordination among us that may authorise us to destroy one another, as ifwe were made for one another's uses, as the inferior ranks of creatures arefor ours. Every one as he is bound to preserve himself, and not to quit hisstation wilfully, so by the like reason, when his own preservation comesnot 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 thelife, or what tends to the preservation of the life, the liberty, health,limb, or goods of another.
7. And that all men may be restrainedfrom invading others' rights, and from doing hurt to one another,and the law of Nature be observed, which willeth the peace and preservationof all mankind, the execution of the law of Nature is in that stateput into every man's hands, whereby every one has a right to punish the transgressorsof that law to such a degree as may hinder its violation. For the Lawof Nature would, as all other laws that concern men in this world, bein vain if there were nobody that in the State of Nature had a powerto execute that law, and thereby preserve the innocent and restrainoffenders; and if any one in the state of Nature may punish another forany 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 rightto do.
8. And thus, in the state of Nature,one man comes by a power over another, but yet no absolute or arbitrary powerto use a criminal, when he has got him in his hands, according to the passionateheats or boundless extravagancy of his own will, but only to retributeto him so far as calm reason and conscience dictate, what is proportionateto 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. Intransgressing the law of Nature, the offender declares himself tolive by another rule than that of reason and common equity, which is thatmeasure God has set to the actions of men for their mutual security, andso he becomes dangerous to mankind; the tie which is to secure them frominjury and violence being slighted and broken by him, which being a trespassagainst the whole species, and the peace and safety of it, provided for bythe law of Nature, every man upon this score, by the right he hath to preservemankind in general, may restrain, or where it is necessary, destroy thingsnoxious to them, and so may bring such evil on any one who hath transgressedthat 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, andbe executioner of the law of Nature.
9. I doubt not but this will seema very strange doctrine to some men; but before they condemn it, Idesire them to resolve me by what right any prince or state can put to deathor punish an alien for any crime he commits in their country? It is certaintheir laws, by virtue of any sanction they receive from the promulgated willof the legislature, reach not a stranger. They speak not tohim, nor, if they did, is he bound to hearken to them. The legislativeauthority by which they are in force over the subjects of that commonwealth hath no power over him. Thosewho have the supreme power of making laws in England, France, or Holland are, to an Indian, but like the restof the world -- men without authority. And therefore, if by thelaw of Nature every man hath not a power to punish offences against it, ashe soberly judges the case to require, I see not how the magistratesof any community can punish an alien of another country, since, inreference to him, they can have no more power than what every man naturallymay have over another.
10. Besides the crime which consistsin violating the laws, and varying from the right rule of reason, wherebya man so far becomes degenerate, and declares himself to quit the principlesof 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 ofpunishment common to him, with other men) a particular right to seek reparationfrom him that hath done it. And any other person who finds it just mayalso join with him that is injured, and assist him in recovering from theoffender so much as may make satisfaction for the harm he hath suffered.
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11. From these two distinct rights (theone 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, remitthe punishment of criminal offences by his own authority, but yet cannotremit 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 appropriatingto himself the goods or service of the offender by right of self-preservation, as every man has a power to punish the crimeto prevent its being committed again, by the right he has of preserving allmankind, 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 killa murderer, both to deter others from doing the like injury (which no reparationcan 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 renouncedreason, the common rule and measure God hath given to mankind,hath, by the unjust violence and slaughter he hath committed upon one, declaredwar against all mankind, and therefore may be destroyed as a lionor a tiger, one of those wild savage beasts with whom men can have no societynor security. And upon this is grounded that great law of nature, "Whososheddeth man's blood, by man shall his blood be shed." And Cain was sofully 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 meshall slay me," so plain was it writ in the hearts of all mankind.
12. By the same reason may a man inthe state of Nature punish the lesser breaches of that law, it will, perhaps,be demanded, with death? I answer: Each transgression may be punished tothat degree, and with so much severity, as will suffice to make it an illbargain to the offender, give him cause to repent, and terrify others fromdoing the like. Every offence that can be committed in the state of Naturemay, in the state of Nature, be also punished equally, and as farforth, as it may, in a commonwealth. For though it would be beside my presentpurpose to enter here into the particulars of the law of Nature, orits measures of punishment, yet it is certain there is such a law,and that too as intelligible and plain to a rational creature anda studier of that law as the positive laws of commonwealths, nay, possiblyplainer; as much as reason is easier to be understood than thefancies and intricate contrivances of men, following contrary and hiddeninterests put into words; for truly so are a great part of the municipallaws of countries, which are only so far right as they are foundedon the law of Nature, by which they are to be regulated andinterpreted.
13. To this strange doctrine -- viz.,That in the state of Nature every one has the executive power of the lawof Nature -- I doubt not but it will be objected that it is unreasonablefor men to be judges in their own cases, that self-love will make men partialto themselves and their friends; and, on the other side, ill-nature, passion,and revenge will carry them too far in punishing others, and hence nothingbut confusion and disorder will follow, and that therefore God hath certainlyappointed government to restrain the partiality and violence of men. I easilygrant that civil government is the proper remedy for the inconveniencesof the state of Nature, which must certainly be great where menmay be judges in their own case, since it is easy to be imagined that hewho was so unjust as to do his brother an injury will scarce be so just asto condemn himself for it. But I shall desire those who make this objectionto remember that absolute monarchs are but men; and if government is to bethe remedy of those evils which necessarily follow from men being judgesin their own cases, and the state of Nature is therefore not to beendured, I desire to know what kind of government that is, and how much betterit is than the state of Nature, where one man commanding a multitude hasthe liberty to be judge in his own case, and may do to all his subjects whateverhe pleases without the least question or control of those who execute hispleasure? 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 boundto do one to another. And if he that judges, judges amiss in his own or anyother 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 andrulers of "independent" governments all through the world are in a stateof Nature, it is plain the world never was, nor never will be, without numbersof 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 everycompact that puts an end to the state of Nature between men, but only thisone of agreeing together mutually to enter into one community, and make onebody 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 perfectlyin a "state of Nature" in reference to one another for truth, and keepingof faith belongs to men as men, and not as members of society.
15. To those that say there were neverany men in the state of Nature, I will not oppose the authority ofthe judicious Hooker (Eccl. Pol. i. 10), where he says, "the laws whichhave been hitherto mentioned" -- i.e., the "laws of Nature" -- "dobind men absolutely, even as they are men, although they have never any settledfellowship, never any solemn agreement amongst themselves what to door not to do; but for as much as we are not by ourselves sufficient to furnishourselves with competent store of things needful for such a life as our Naturedoth desire, a life fit for the dignity of man, therefore to supply thosedefects and imperfections which are in us, as living single and solely byourselves, we are naturally induced to seek communion and fellowship withothers; this was the cause of men uniting themselves as first in politicsocieties." But I, moreover, affirm that all men are naturally in thatstate, and remain so till, by their own consents, they make themselvesmembers of some politic society, and I doubt not, in the sequel of this discourse, to make it very clear.
Chapter 3: Of the State of War
16. The state of war is astate of enmity and destruction; and therefore declaring by word oraction, not a passionate and hasty, but sedate, settled design uponanother man's life puts him in a state of war with him against whom he hasdeclared such an intention, and so has exposed his life to the other'spower to be taken away by him, or any one that joins with him inhis defence, and espouses his quarrel; it being reasonable and justI should have a right to destroy that which threatens me with destruction;for by the fundamental law of Nature, man being to be preservedas much as possible, when all cannot be preserved, the safety of the innocentis 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 thathe may kill a wolf or a lion, because they are not under the ties of thecommon 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 andnoxious creatures that will be sure to destroy him whenever he falls intotheir power.
17. And hence it is that he who attempts to get another man into hisabsolute power does thereby put himself into a "State of War" with him; it being to be understood asa declaration of a design upon his life. For I have reason to conclude that he who would getme into his power without my consent would use me as he pleasedwhen 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 beto compel me by force to that which is against the right ofmy freedom-- i.e.make me a slave. To be free from such forceis the only security of my preservation, and reason bids me look on himas an enemy to my preservation who would take away that freedom which isthe fence to it; so that he who makes anattempt to enslave me thereby puts himself into a state ofwar withme. He that in the state of Naturewould take away the freedom that belongs to any one in that state must necessarilybe supposed to have a design to take away everything else, that freedom being the foundation of all therest; as hethat in the state of society would take away the freedom belonging to thoseof that society or commonwealth must be supposed to designto take away from them everything else, and so be looked on as in a state ofwar.
18. This makes it lawfulfor a man to kill a thief who has not in the least hurt him, nor declaredany design upon his life, any farther than by the use of force, so to gethim 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 whatit will, I have no reason to supposethat he who would take away my liberty would not, when he had me in his power,take away everything else. And, therefore, it is lawfulfor me to treat him as one who has put himself into a state ofwar with me -- i.e., killhim if I can; for to that hazard doeshe justly expose himself whoever introduces a state ofwar, and is aggressor in it.
19. And here we have theplain difference between the state of Nature and the state of war, whichhowever some men have confounded, are as far distant as a state of peace,goodwill, mutual assistance, and preservation; and a state of enmity, malice,violence and mutual destruction are one from another. Men living togetheraccording to reason without a common superior on earth, with authority tojudge between them, is properly the state of Nature. But force, ora declared design of force upon the person of another, where there is nocommon superior on earth to appeal to for relief, is the state ofwar;and it is the want of such an appeal gives a man the right of war even againstan aggressor, though he be in society anda fellow-subject. Thus, a thief whom I cannot harm,but by appeal to the law, for having stolen all that I am worth, I maykill 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 mylife from present force, which if lost is capable of no reparation, permits memy own defence and the right of war, a liberty to kill the aggressor, because the aggressor allowsnot time to appeal to our common judge, nor the decision of the law, forremedy in a case where the mischief may be irreparable. Want ofa common judge with authority puts all men in a stateof Nature; force without right upon a man's person makesa state of war both wherethere is, and is not, a common judge.
20. But when the actualforce is over, the state of war ceases between those that are in societyand are equally on both sides subject to the judge; and, therefore, in suchcontroversies, where the question is put, "Who shall be judge?" it cannotbe meant who shall decide the controversy; every one knows what Jephtha heretells us, that "the Lord the Judge" shall judge. Where there is no judgeon earth the appeal lies to God in Heaven. That question then cannot meanwho shall judge, whether another hath put himself in a state of war withme, and whether I may, as Jephtha did, appeal to Heaven in it? Of thatI myself can only judge in my own conscience, as I will answer it at thegreat day to the Supreme Judge of all men.
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Chapter 4: Of Slavery
21. The natural liberty of man isto be free from any superior power on earth, and not to be under the willor legislative authority of man, but to have only the law of Nature for hisrule. (APP Note: Seethis exact wording in the Rights of theColonists) The liberty of man in societyis to be under no other legislative power but that established by consentin the commonwealth, nor under the dominion of any will, or restraint ofany law, but what that legislative shall enact according to the trust putin 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 freedomof men under government is to have a standing rule to live by, commonto every one of that society, and made by the legislative power erectedin it. A liberty tofollow my own will in all things where that rule prescribes not, not to besubject to the inconstant, uncertain, unknown, arbitrary will of anotherman, as freedom of nature is to be under no other restraint but the lawof 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 whatforfeits his preservation and life together. For a man, not havingthe power of his own life, cannot by compact or his own consent enslavehimself to any one, nor put himself under the absolute, arbitrary power ofanother to take away his life when he pleases. Nobody can give more power thanhe has himself, and he that cannot take away his own life cannot give anotherpower over it. Indeed, having by his fault forfeited hisown life by some act that deserves death, he to whom he has forfeited itmay, when he has him in his power, delay to take it, and make use of himto his own service; and he does him no injury by it. For, wheneverhe finds the hardship of his slavery outweigh the value of his life, it isin his power, by resisting the will of his master, to draw on himself thedeath he desires.
23. This is the perfect conditionof slavery, which is nothing else but the state of war continued betweena 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 obedienceon the other, the state of war and slavery ceases as long as the compactendures; for, as has been said, no man can by agreement pass over to anotherthat 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 thiswas only to drudgery, not to slavery; for it is evident the person sold wasnot under an absolute, arbitrary, despotical power, for the master couldnot have power to kill him at any time, whom at a certain time he was obligedto let go free out of his service; and the master of such a servant was sofar from having an arbitrary power over his life that he could not at pleasureso much as maim him, but the loss of an eye or tooth set him free (Exod.21.).
Chapter 5: Of Property
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 affordsfor their subsistence, or "revelation," which gives us an account of thosegrants God made of the world to Adam, and to Noah and his sons, it is veryclear that God, as King David says (Psalm 115. 16), "has given the earthto 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 tohave a property in anything, I will not content myself to answer, that, ifit be difficult to make out "property" upon a supposition that God gave theworld to Adam and his posterity in common, it is impossible that any manbut one universal monarch should have any "property" upon a supposition thatGod gave the world to Adam and his heirs in succession, exclusive of allthe rest of his posterity; but I shall endeavour to show how men might cometo have a property in several parts of that which God gave to mankind incommon, and that without any express compact of all the commoners.
25. God, who hath given the world tomen in common, hath also given them reason to make use of it to the bestadvantage of life and convenience. The earth and all that is therein is givento men for the support and comfort of their being. And though all the fruitsit naturally produces, and beasts it feeds, belong to mankind in common,as they are produced by the spontaneous hand of Nature, and nobody has originallya private dominion exclusive of the rest of mankind in any of them, as theyare thus in their natural state, yet being given for the use of men, theremust of necessity be a means to appropriate them some way or other beforethey can be of any use, or at all beneficial, to any particular men. Thefruit 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 partof him, that another can no longer have any right to it before it can dohim any good for the support of his life.
26. Though the earth and all inferiorcreatures 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 andthe "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, hehath 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 thislabour something annexed to it that excludes the common right of other men. For this "labour" being theunquestionable property of the labourer, no man but he can have a rightto what that is once joined to, at least where there is enough, and asgood left in common for others.
27. He that is nourished by the acorns he picked up under an oak, orthe apples he gathered from the trees in the wood, has certainly appropriatedthem 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? orwhen 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 betweenthem and common. That added something to them more than Nature, thecommon 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 appropriatedbecause he had not the consent of all mankind to make them his? Was it arobbery thus to assume to himself what belonged to all in common? If sucha consent as that was necessary, man had starved, notwithstanding the plentyGod had given him. We see in commons, which remain so by compact, that itis the taking any part of what is common, and removing it out of the stateNature leaves it in, which begins the property, without which the commonis of no use. And the taking of this or that part does not dependon the express consent of all the commoners. Thus, the grass my horsehas 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 propertywithout the assignation or consent of anybody. The labour that wasmine, removing them out of that common state they were in, hath fixedmy property in them.
28. By making an explicit consent ofevery commoner necessary to any one's appropriating to himself any part ofwhat is given in common. Children or servants could not cut the meat whichtheir father or master had provided for them in common without assigningto every one his peculiar part. Though the water running in the fountainbe every one's, yet who can doubt but that in the pitcher is his only whodrew it out? His labour hath taken it out of the hands of Nature where itwas common, and belonged equally to all her children, and hath thereby appropriatedit to himself.
29. Thus this law of reason makes thedeer that Indian's who hath killed it; it is allowed to be his goods whohath bestowed his labour upon it, though, before, it was the common rightof 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 beforecommon, still takes place, and by virtue thereof, what fish any one catchesin the ocean, that great and still remaining common of mankind; or whatamber-gris any one takes up here is by the labour that removes it out ofthat common state Nature left it in, made his property who takes that painsabout it. And even amongst us, the hare that any one is hunting is thoughthis who pursues her during the chase. For being a beast that is still lookedupon as common, and no man's private possession, whoever has employedso much labour about any of that kind as to find and pursue her has therebyremoved her from the state of Nature wherein she was common, and hathbegun a property.
30. It will, perhaps, be objectedto 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 whichI answer, Not so. The same law of Nature that does by this means give usproperty, does also bound that property too. "God has given us all thingsrichly." Is the voice of reason confirmed by inspiration? But how far hasHe given it us -- "to enjoy"? As much as any one can make use of toany advantage of life before it spoils, so much he may by his labour fixa 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 timein the world, and the few spenders, and to how small a part of that provisionthe industry of one man could extend itself and engross it to the prejudiceof others, especially keeping within the bounds set by reason of what mightserve for his use, there could be then little room for quarrels or contentionsabout property so established.
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31. But the chief matter of propertybeing 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 therest, 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 theproduct of, so much is his property. He by his labour does, as it were, encloseit from the common. Nor will it invalidate his right to say everybody elsehas an equal title to it, and therefore he cannot appropriate, he cannotenclose, 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 reasoncommanded him to subdue the earth -- i.e., improve it for the benefit oflife 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 sowedany part of it, thereby annexed to it somethingthat was his property, which another had no title to, nor could without injurytake from him.
32. Nor was thisappropriation of any parcel of land, by improving it, any prejudice to anyother man, since there was still enough and as good left, and more than theyet unprovided could use. ( APP Note; See Declaration of Independence Greivance ofthe King raising the appropreation of Lands ) So that, in effect, there wasnever the less left for others because of his enclosure for himself. Forhe that leaves as much as another can make use of does as good as take nothingat 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 lefthim to quench his thirst. And the case of land andwater, where there is enough of both, is perfectly the same.
33. God gave the world tomen in common, but since He gave it them for their benefit and the greatestconveniencies of life they were capable to draw from it, it cannot be supposedHe meant it should always remain common and uncultivated. He gave it to theuse 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 thathad 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; ifhe did it is plain he desired the benefit of another's pains, which he hadno 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 commonin England or any other country, where there are plenty of people under governmentwho have money and commerce, no one can enclose or appropriate any part withoutthe 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, thoughit be common in respect of some men, it is not so to all mankind, but isthe 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 asthe whole was, when they could all make use of the whole; whereas in thebeginning and first peopling of the great common of the world it was quiteotherwise. The law man was under was rather for appropriating. God commanded,and his wants forced him to labour. That was his property, which could notbe taken from him wherever he had fixed it. And hencesubduing or cultivating the earth and having dominion, we see, are joinedtogether. Theone gave title to the other. So that God, by commandingto subdue, gave authority so far toappropriate. And the condition of human life,which requires labour and materials to work on, necessarily introduceprivate possessions.
35. The measure of property Naturewell 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 enjoymentconsume more than a small part; so that it was impossible for any man, thisway, to entrench upon the right of another or acquire to himself a propertyto the prejudice of his neighbour, who would still have room for as goodand as large a possession (after the other had taken out his) as before itwas appropriated. Which measure did confine every man's possession to a verymoderate proportion, and such as he might appropriate to himself withoutinjury to anybody in the first ages of the world, when men were more in dangerto be lost, by wandering from their company, in the then vast wildernessof the earth than to be straitened for want of room to plant in.
36. The same measure may be allowedstill, without prejudice to anybody, full as the world seems. For, supposinga man or family, in the state they were at first, peopling of the world bythe children of Adam or Noah, let him plant in some inland vacant placesof America. We shall find that the possessions he could make himself, uponthe 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 themselvesinjured by this man's encroachment, though the race of men have now spreadthemselves to all the corners of the world, and do infinitely exceed thesmall number was at the beginning. Nay, the extent of ground is of so littlevalue without labour that I have heard it affirmed that in Spain itself aman may be permitted to plough, sow, and reap, without being disturbed, uponland he has no other title to, but only his making use of it. But, on thecontrary, the inhabitants think themselves beholden to him who, by his industryon 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, thisI dare boldly affirm, that the same rule of propriety -- viz., that everyman should have as much as he could make use of, would hold still in theworld, without straitening anybody, since there is land enough in the worldto suffice double the inhabitants, had not the invention of money, and thetacit agreement of men to put a value on it, introduced (by consent) largerpossessions and a right to them; which, how it has done, I shall by and byshow more at large.
37. This is certain, that in the beginning,before the desire of having more than men needed had altered the intrinsicvalue 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 withoutwasting or decay, should be worth a great piece of flesh or a whole heapof corn, though men had a right to appropriate by their labour, each oneto himself, as much of the things of Nature as he could use, yet this couldnot be much, nor to the prejudice of others, where the same plenty was stillleft, 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 soemployed his pains about any of the spontaneous products of Nature as anyway to alter them from the state Nature put them in, by placing any of hislabour on them, did thereby acquire a propriety in them; but if they perishedin his possession without their due use -- if the fruits rotted or the venisonputrefied before he could spend it, he offended against the common law ofNature, 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 theymight serve to afford him conveniencies of life.
38. The same measures governed the possessionof land, too. Whatsoever he tilled and reaped, laid up and made use of beforeit spoiled, that was his peculiar right; whatsoever he enclosed, and couldfeed and make use of, the cattle and product was also his. But if eitherthe grass of his enclosure rotted on the ground, or the fruit of his plantingperished without gathering and laying up, this part of the earth, notwithstandinghis enclosure, was still to be looked on as waste, and might be the possessionof any other. Thus, at the beginning, Cain might take as much ground as hecould till and make it his own land, and yet leave enough to Abel's sheepto feed on: a few acres would serve for both their possessions. But as familiesincreased and industry enlarged their stocks, their possessions enlargedwith the need of them; but yet it was commonly without any fixed propertyin the ground they made use of till they incorporated, settled themselvestogether, and built cities, and then, by consent, they came in time to setout the bounds of their distinct territories and agree on limits betweenthem and their neighbours, and by laws within themselves settled the propertiesof those of the same society. For we see that in that part of the world whichwas first inhabited, and therefore like to be best peopled, even as low downas Abraham's time, they wandered with their flocks and their herds, whichwas their substance, freely up and down -- and this Abraham did in a countrywhere he was a stranger; whence it is plain that, at least, a great partof the land lay in common, that the inhabitants valued it not, nor claimedproperty in any more than they made use of; but when there was not room enoughin the same place for their herds to feed together, they, by consent, asAbraham and Lot did (Gen. xiii. 5), separated and enlarged their pasturewhere it best liked them. And for the same reason, Esau went from his fatherand his brother, and planted in Mount Seir (Gen. 36. 6).
39. And thus, without supposing anyprivate dominion and property in Adam over all the world, exclusive of allother men, which can no way be proved, nor any one's property be made outfrom it, but supposing the world, given as it was to the children of menin common, we see how labour could make men distinct titles to severalparcels of it for their private uses, wherein there could be no doubt ofright, no room for quarrel.
40. Nor is it so strange as, perhaps,before consideration, it may appear, that the property of labour should beable to overbalance the community of land, for it is labour indeed that putsthe difference of value on everything; and let any one consider what thedifference is between an acre of land planted with tobacco or sugar, sownwith wheat or barley, and an acre of the same land lying in common withoutany husbandry upon it, and he will find that the improvement of labour makesthe far greater part of the value. I think it will be but a very modest computationto say, that of the products of the earth useful to the life of man, nine-tenthsare the effects of labour. Nay, if we will rightly estimate things as theycome to our use, and cast up the several expenses about them -- what in themis purely owing to Nature and what to labour -- we shall find that in mostof them ninety-nine hundredths are wholly to be put on the account of labour.
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41. There cannot be a clearer demonstrationof anything than several nations of the Americans are of this, who are richin land and poor in all the comforts of life; whom Nature, having furnishedas liberally as any other people with the materials of plenty -- i.e., afruitful 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 hundredthpart of the conveniencies we enjoy, and a king of a large and fruitful territorythere feeds, lodges, and is clad worse than a day labourer in England.
42. To make this a little clearer, letus but trace some of the ordinary provisions of life, through their severalprogresses, before they come to our use, and see how much they receive oftheir value from human industry. Bread, wine, and cloth are things of dailyuse and great plenty; yet notwithstanding acorns, water, and leaves, or skinsmust be our bread, drink and clothing, did not labour furnish us with thesemore useful commodities. For whatever bread is more worth than acorns, winethan water, and cloth or silk than leaves, skins or moss, that is whollyowing to labour and industry. The one of these being the food and raimentwhich unassisted Nature furnishes us with; the other provisions which ourindustry and pains prepare for us, which how much they exceed the other invalue, when any one hath computed, he will then see how much labour makesthe far greatest part of the value of things we enjoy in this world; andthe 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 findthe benefit of it amount to little more than nothing.
43. An acre of land that bears heretwenty 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 pounds,and the other possibly not worth a penny; if all the profit an Indian receivedfrom it were to be valued and sold here, at least I may truly say, not onethousandth. It is labour, then, which puts the greatest part of value uponland, without which it would scarcely be worth anything; it is to that weowe 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 anacre of as good land which lies waste is all the effect of labour. For itis not barely the ploughman's pains, the reaper's and thresher's toil, andthe baker's sweat, is to be counted into the bread we eat; the labour ofthose who broke the oxen, who digged and wrought the iron and stones, whofelled and framed the timber employed about the plough, mill, oven, or anyother utensils, which are a vast number, requisite to this corn, from itssowing 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 thealmost worthless materials as in themselves. It would be a strange catalogueof things that industry provided and made use of about every loaf of breadbefore 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 ofthe 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 masterof himself, and proprietor of his own person, and the actions or labour ofit) had still in himself the great foundation of property; andthat which made up the great part of what he applied to the support or comfortof his being, when invention and arts had improved the conveniences of life, was perfectly his own, and did not belongin 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 ofpeople and stock, with the use of money, had made land scarce, and so ofsome value, the several communities settled the bounds of their distinctterritories, and, by laws, within themselves, regulated the properties ofthe private men of their society, and so, by compact and agreement, settledthe property which labour and industry began. And the leagues that have beenmade between several states and kingdoms, either expressly or tacitly disowningall claim and right to the land in the other's possession, have, by commonconsent, given up their pretences to their natural common right, which originallythey had to those countries; and so have, by positive agreement, settleda property amongst themselves, in distinct parts of the world; yet thereare 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 theircommon 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 happenamongst that part of mankind that have consented to the use of money.
46. The greatest part of things reallyuseful to the life of man, and such as the necessity of subsisting made thefirst commoners of the world look after -- as it doth the Americans now --are generally things of short duration, such as -- if they are not consumedby use -- will decay and perish of themselves. Gold, silver, and diamondsare things that fancy or agreement hath put the value on, more than realuse and the necessary support of life. Now of those good things which Naturehath provided in common, every one hath a right (as hath been said) to asmuch as he could use; and had a property in all he could effect with hislabour; all that his industry could extend to, to alter from the state Naturehad put it in, was his. He that gathered a hundred bushels of acorns or appleshad 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 morethan his share, and robbed others. And, indeed, it was a foolish thing, aswell as dishonest, to hoard up more than he could make use of If he gaveaway 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 haverotted 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 theportion of goods that belonged to others, so long as nothing perished uselesslyin his hands. Again, if he would give his nuts for a piece of metal, pleasedwith its colour, or exchange his sheep for shells, or wool for a sparklingpebble or a diamond, and keep those by him all his life, he invaded not theright 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 largenessof 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 mutualconsent, men would take in exchange for the truly useful but perishable supportsof life.
48. And as different degrees of industrywere apt to give men possessions in different proportions, so this inventionof money gave them the opportunity to continue and enlarge them. For supposingan 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 forcorn for a hundred thousand times as many, but nothing in the island, eitherbecause of its commonness or perishableness, fit to supply the place of money.What reason could any one have there to enlarge his possessions beyond theuse of his family, and a plentiful supply to its consumption, either in whattheir own industry produced, or they could barter for like perishable, usefulcommodities 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 theirpossessions 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 acresof excellent land, ready cultivated and well stocked, too, with cattle, inthe middle of the inland parts of America, where he had no hopes of commercewith 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 againto the wild common of Nature whatever was more than would supply the conveniencesof life, to be had there for him and his family.
49. Thus, in the beginning, all theworld was America, and more so than that is now; for no such thing as moneywas anywhere known. Find out something that hath the use and value of moneyamongst his neighbours, you shall see the same man will begin presently toenlarge his possessions.
50. But, since gold and silver,being little useful to the life of man, in proportion to food, raiment, andcarriage, has its value only from the consent of men -- whereoflabour yet makes in great part the measure -- it is plain that theconsent of men have agreed to a disproportionate and unequal possession ofthe earth -- I mean out of the bounds of society and compact; for in governmentsthe laws regulate it; they having, by consent, found out and agreed in away how a man may, rightfully and without injury, possess more than hehimself can make use of by receiving gold and silver, which may continuelong in a man's possession without decaying for the overplus, and agreeingthose metals should have a value.
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51. And thus, I think, it is veryeasy to conceive, without any difficulty, how labour could at first begina title of property in the common things of Nature, and how the spendingit upon our uses bounded it; so that there could then be no reason of quarrellingabout title, nor any doubt about the largeness of possession it gave. Rightand conveniency went together. For as a man had a right to all he could employhis labour upon, so he had no temptation to labour for more than he couldmake use of. This left no room for controversy about the title, nor for encroachmenton 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 takemore than he needed.
Chapter 6: Of Paternal Power
52. IT may perhaps be censured an impertinentcriticism in a discourse of this nature to find fault with words and namesthat have obtained in the world. And yet possibly it may not be amiss tooffer new ones when the old are apt to lead men into mistakes, as this ofpaternal power probably has done, which seems so to place the power of parentsover their children wholly in the father, as if the mother had no share init; whereas if we consult reason or revelation, we shall find she has anequal title, which may give one reason to ask whether this might not be moreproperly called parental power? For whatever obligation Nature and the rightof generation lays on children, it must certainly bind them equal to boththe concurrent causes of it. And accordingly we see the positive law of Godeverywhere joins them together without distinction, when it commands theobedience of children: "Honour thy father and thy mother" (Exod. 20. 12);"Whosoever curseth his father or his mother" (Lev. 20. 9); "Ye shall fearevery 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 wellconsidered without looking any deeper into the matter, it might perhaps havekept men from running into those gross mistakes they have made about thispower of parents, which however it might without any great harshness bearthe name of absolute dominion and regal authority, when under the title of"paternal" power, it seemed appropriated to the father; would yet have soundedbut oddly, and in the very name shown the absurdity, if this supposed absolutepower over children had been called parental, and thereby discovered thatit belonged to the mother too. For it will but very ill serve the turn ofthose men who contend so much for the absolute power and authority of thefatherhood, 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 bythe very name it appeared that that fundamental authority from whence theywould 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) "Thatall men by nature are equal," I cannot be supposed to understand all sortsof "equality." Age or virtue may give men a just precedency. Excellency ofparts and merit may place others above the common level. Birth may subjectsome, and alliance or benefits others, to pay an observance to those to whomNature, gratitude, or other respects, may have made it due; and yet all thisconsists with the equality which all men are in respect of jurisdiction ordominion one over another, which was the equality I there spoke of as properto the business in hand, being that equal right that every man hath to hisnatural freedom, without being subjected to the will or authority of anyother man.
55. Children, I confess, are not bornin this full state of equality, though they are born to it. Their parentshave 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 ofthis subjection are like the swaddling clothes they are wrapt up in and supportedby in the weakness of their infancy. Age and reason as they grow up loosenthem, till at length they drop quite off, and leave a man at his own freedisposal.
56. Adam was created a perfect man,his body and mind in full possession of their strength and reason, and sowas capable from the first instance of his being to provide for his own supportand preservation, and govern his actions according to the dictates of thelaw of reason God had implanted in him. From him the world is peopled withhis descendants, who are all born infants, weak and helpless, without knowledgeor understanding. But to supply the defects of this imperfect state tillthe improvement of growth and age had removed them, Adam and Eve, and afterthem 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 tobe accountable for them.
57. The law that was to govern Adamwas the same that was to govern all his posterity, the law of reason. Buthis offspring having another way of entrance into the world, different fromhim, by a natural birth, that produced them ignorant, and without the useof reason, they were not presently under that law. For nobody can beunder a law that is not promulgated to him; and this law being promulgatedor made known by reason only, he that is not come to the use of his reasoncannot be said to be under this law; and Adam's children being notpresently 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 directionof a free and intelligent agent to his proper interest, and prescribes nofarther than is for the general good of those under that law. Could theybe 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 frombogs and precipices. So that however it may be mistaken, the end oflaw is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of createdbeings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraintand 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 helists." For who could be free, when every other man's humourmight domineer over him? But a liberty to dispose and order freelyas he lists his person, actions, possessions, and his whole property withinthe allowance of those laws under which he is, and therein notto be subject to the arbitrary will of another, but freely follow his own.
58. The power, then, that parents haveover their children arises from that duty which is incumbent on them, totake 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 thechildren want, and the parents are bound to. For God having given man anunderstanding to direct his actions, has allowed him a freedom of will andliberty of acting, as properly belonging thereunto within the bounds of thatlaw he is under. But whilst he is in an estate wherein he has no understandingof 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 forhim too; he must prescribe to his will, and regulate his actions, butwhen he comes to the estate that made his father a free man, the son is afree man too.
59. This holds in all the laws a manis under, whether natural or civil. Is a man under the law of Nature? Whatmade 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 estatewherein he might be supposed capable to know that law, that so he might keephis actions within the bounds of it. When he has acquired that state, heis presumed to know how far that law is to be his guide, and how far he maymake use of his freedom, and so comes to have it; till then, somebody elsemust 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 sameshall make his son free too. Is a man under the law of England? what madehim free of that law -- that is, to have the liberty to dispose of his actionsand possessions, according to his own will, within the permission of thatlaw? a capacity of knowing that law. Which is supposed, by that law, at theage 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 sonto 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 substitutea deputy in this trust, if he hath not provided a tutor to govern his sonduring his minority, during his want of understanding, the law takes careto do it: some other must govern him and be a will to him till he hath attainedto a state of freedom, and his understanding be fit to take the governmentof his will. But after that the father and son are equally free, asmuch 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 estateof his son, whether they be only in the state and under the law of Nature,or under the positive laws of an established government.
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60. But if through defects that mayhappen out of the ordinary course of Nature, any one comes not to such adegree 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 freeman, he is never let loose to the disposure of his own will; because he knowsno bounds to it, has not understanding, its proper guide, but is continuedunder the tuition and government of others all the time his own understandingis incapable of that charge. And so lunatics and idiots are never set freefrom the government of their parents: "Children who are not as yet come untothose years whereat they may have, and innocents, which are excluded by anatural defect from ever having." Thirdly: "Madmen, which, for the present,cannot possibly have the use of right reason to guide themselves, have, fortheir 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 laidon man, as well as other creatures, to preserve their offspring till theycan be able to shift for themselves, and will scarce amount to an instanceor proof of parents' regal authority.
61. Thus we are born free as we areborn rational; not that we have actually the exercise of either: age thatbrings one, brings with it the other too. And thus we see how natural freedomand subjection to parents may consist together, and are both founded on thesame 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 atyears of discretion, and the subjection of a child to his parents, whilstyet short of it, are so consistent and so distinguishable that the most blindedcontenders for monarchy, "by right of fatherhood," cannot miss of it; themost 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 monarchin his throne, invested with all the absolute unlimited power Sir RobertFilmer talks of, if he should die as soon as his heir were born, must notthe child, notwithstanding he were never so free, never so much sovereign,be in subjection to his mother and nurse, to tutors and governors, till ageand education brought him reason and ability to govern himself and others?The necessities of his life, the health of his body, and the informationof his mind would require him to be directed by the will of others and nothis own; and yet will any one think that this restraint and subjection wereinconsistent with, or spoiled him of, that liberty or sovereignty he hada right to, or gave away his empire to those who had the government of hisnonage? This government over him only prepared him the better and soonerfor it. If anybody should ask me when my son is of age to be free, I shallanswer, just when his monarch is of age to govern. "But at what time," saysthe judicious Hooker (Eccl. Pol., lib. i., s. 6), "a man may be said to haveattained so far forth the use of reason as sufficeth to make him capableof those laws whereby he is then bound to guide his actions; this is a greatdeal more easy for sense to discern than for any one, by skill and learning,to determine."
62. Commonwealths themselves take noticeof, and allow that there is a time when men are to begin to act like freemen, 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, andliberty 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, andmake him know how far he is left to the freedom of his own will. Toturn him loose to an unrestrained liberty, before he has reason to guidehim, is not the allowing him the privilege of his nature to be free, butto thrust him out amongst brutes, and abandon him to a state as wretchedand as much beneath that of a man as theirs. This is thatwhich puts the authority into the parents' hands to govern the minority oftheir children.God hath made it their business to employ this care on their offspring, andhath placed in them suitable inclinations of tenderness and concern to temperthis power, to apply it as His wisdom designed it, to the children's goodas long as they should need to be under it.
64. But what reason can hence advancethis care of the parents due to their offspring into an absolute, arbitrarydominion of the father, whose power reaches no farther than by such a disciplineas 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 tobe 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 thispower the mother, too, has her share with the father.
65. Nay, this power so little belongsto the father by any peculiar right of Nature, but only as he is guardianof his children, that when he quits his care of them he loses his power overthem, which goes along with their nourishment and education, to which itis inseparably annexed, and belongs as much to the foster-father of an exposedchild as to the natural father of another. So little power does the bareact of begetting give a man over his issue, if all his care ends there, andthis be all the title he hath to the name and authority of a father. Andwhat will become of this paternal power in that part of the world where onewoman hath more than one husband at a time? or in those parts of Americawhere, when the husband and wife part, which happens frequently, the childrenare all left to the mother, follow her, and are wholly under her care andprovision? And if the father die whilst the children are young, do they notnaturally everywhere owe the same obedience to their mother, during theirminority, as to their father, were he alive? And will any one say that themother hath a legislative power over her children that she can make standingrules which shall be of perpetual obligation, by which they ought to regulateall the concerns of their property, and bound their liberty all the courseof their lives, and enforce the observation of them with capital punishments?For this is the proper power of the magistrate, of which the father hathnot 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 weaknessand imperfection of their nonage, a discipline necessary to their education.And though a father may dispose of his own possessions as he pleases whenhis children are out of danger of perishing for want, yet his power extendsnot 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 arrivedto the enfranchisement of the years of discretion. The father's empire thenceases, and he can from thenceforward no more dispose of the liberty of hisson than that of any other man. And it must be far from an absolute or perpetualjurisdiction from which a man may withdraw himself, having licence from Divineauthority to "leave father and mother and cleave to his wife."
66. But though there be a time whena child comes to be as free from subjection to the will and command of hisfather 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 themboth, 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 thelaw of God and Nature, to pay his parents, God having made the parentsinstruments in His great design of continuing the race of mankind andthe occasions of life to their children. As He hath laid on them anobligation to nourish, preserve, and bring up their offspring, so He haslaid on the children a perpetual obligation of honouring their parents, which,containing in it an inward esteem and reverence to be shown by all outwardexpressions, ties up the child from anything that may ever injure or affront,disturb or endanger the happiness or life of those from whom he receivedhis, and engages him in all actions of defence, relief, assistance, and comfortof those by whose means he entered into being and has been made capable ofany enjoyments of life. From this obligation no state, no freedom,can absolve children. But this is very far from giving parents a power ofcommand over their children, or an authority to make laws and dispose asthey 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 yetthis lessens not his authority nor subjects him to her government.
67. The subjection of a minor placesin the father a temporary government which terminates with the minority ofthe child; and the honour due from a child places in the parents a perpetualright to respect, reverence, support, and compliance, to more or less, asthe 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 ofa man's life. The want of distinguishing these two powers which the fatherhath, in the right of tuition, during minority, and the right of honour allhis life, may perhaps have caused a great part of the mistakes about thismatter. For, to speak properly of them, the first of these is rather theprivilege of children and duty of parents than any prerogative of paternalpower. The nourishment and education of their children is a charge so incumbenton parents for their children's good, that nothing can absolve them fromtaking care of it. And though the power of commanding and chastising themgo along with it, yet God hath woven into the principles of human naturesuch a tenderness for their offspring, that there is little fear that parentsshould use their power with too much rigour; the excess is seldom on thesevere side, the strong bias of nature drawing the other way. And thereforeGod Almighty, when He would express His gentle dealing with the Israelites,He tells them that though He chastened them, "He chastened them as a manchastens his son" (Deut. 8. 5) -- i.e., with tenderness and affection, andkept 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 whichchildren are commanded obedience, that the pains and care of their parentsmay not be increased or ill-rewarded.
68. On the other side, honour and supportall that which gratitude requires to return; for the benefits received byand from them is the indispensable duty of the child and the proper privilegeof the parents. This is intended for the parents' advantage, as the otheris for the child's; though education, the parents' duty, seems to have mostpower, because the ignorance and infirmities of childhood stand in need ofrestraint and correction, which is a visible exercise of rule and a kindof dominion. And that duty which is comprehended in the word "honour" requiresless obedience, though the obligation be stronger on grown than younger children.For who can think the command, "Children, obey your parents," requires ina man that has children of his own the same submission to his father as itdoes in his yet young children to him, and that by this precept he were boundto obey all his father's commands, if, out of a conceit of authority, heshould have the indiscretion to treat him still as a boy?
69. The first part, then, of paternalpower, or rather duty, which is education, belongs so to the father thatit terminates at a certain season. When the business of education is overit ceases of itself, and is also alienable before. For a man may put thetuition of his son in other hands; and he that has made his son an apprenticeto 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 otherpart, remains nevertheless entire to them; nothing can cancel that. It isso inseparable from them both, that the father's authority cannot dispossessthe mother of this right, nor can any man discharge his son from honouringher 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 nonage, and though after thathonour and respect, support and defence, and whatsoever gratitude can obligea man to, for the highest benefits he is naturally capable of be always duefrom a son to his parents, yet all this puts no sceptre into the father'shand, no sovereign power of commanding. He has no dominion over his son'sproperty or actions, nor any right that his will should prescribe to hisson's in all things; however, it may become his son in many things, not veryinconvenient to him and his family, to pay a deference to it.
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70. A man may owe honour and respectto an ancient or wise man, defence to his child or friend, relief and supportto the distressed, and gratitude to a benefactor, to such a degree that allhe has, all he can do, cannot sufficiently pay it. But all these give noauthority, no right of making laws to any one over him from whom they areowing. 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 becausethese obligations to parents, and the degrees of what is required of children,may be varied by the different care and kindness trouble and expense, isoften employed upon one child more than another.
71. This shows the reason how it comesto pass that parents in societies, where they themselves are subjects, retaina power over their children and have as much right to their subjection asthose who are in the state of Nature, which could not possibly be if allpolitical power were only paternal, and that, in truth, they were one andthe same thing; for then, all paternal power being in the prince, the subjectcould 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 asmuch a paternal power over his children as the prince has over his. And everyprince that has parents owes them as much filial duty and obedience as themeanest of his subjects do to theirs, and can therefore contain not any partor degree of that kind of dominion which a prince or magistrate has overhis subject.
72. Though the obligation on the parentsto bring up their children, and the obligation on children to honour theirparents, contain all the power, on the one hand, and submission on the other,which are proper to this relation, yet there is another power ordinarilyin 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 instancesof it elsewhere being rare, and less taken notice of, it passes in the worldfor a part of "paternal jurisdiction." And this is the power men generallyhave to bestow their estates on those who please them best. The possessionof 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 sparingor liberal hand, according as the behaviour of this or that child hath comportedwith his will and humour.
73. This is no small tie to the obedienceof children; and there being always annexed to the enjoyment of land a submissionto the government of the country of which that land is a part, it has beencommonly supposed that a father could oblige his posterity to that governmentof which he himself was a subject, that his compact held them; whereas, itbeing only a necessary condition annexed to the land which is under thatgovernment, reaches only those who will take it on that condition, and sois no natural tie or engagement, but a voluntary submission; for every man'schildren being, by Nature, as free as himself or any of his ancestors everwere, may, whilst they are in that freedom, choose what society they willjoin themselves to, what commonwealth they will put themselves under. Butif they will enjoy the inheritance of their ancestors, they must take iton the same terms their ancestors had it, and submit to all the conditionsannexed to such a possession. By this power, indeed, fathers oblige theirchildren to obedience to themselves even when they are past minority, andmost commonly, too, subject them to this or that political power. But neitherof these by any peculiar right of fatherhood, but by the reward they havein their hands to enforce and recompense such a compliance, and is no morepower than what a Frenchman has over an Englishman, who, by the hopes ofan 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 uponthe conditions annexed to the possession of land in that country where itlies, whether it be France or England.
74. To conclude, then, though the father'spower 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; andthough that honour and respect, and all that which the Latins called piety,which they indispensably owe to their parents all their lifetime, and inall estates, with all that support and defence, is due to them, gives thefather no power of governing -- i.e., making laws and exacting penaltieson his children; though by this he has no dominion over the property or actionsof his son, yet it is obvious to conceive how easy it was, in the first agesof the world, and in places still where the thinness of people gives familiesleave to separate into unpossessed quarters, and they have room to removeand plant themselves in yet vacant habitations, for the father of the familyto become the prince of it;3 he had been a ruler from the beginning of theinfancy of his children; and when they were grown up, since without somegovernment it would be hard for them to live together, it was likeliest itshould, 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 exercisealone in his family that executive power of the law of Nature which everyfree man naturally hath, and by that permission resigning up to him a monarchicalpower 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 nobodydoubts 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 mightcondemn and put him to death, or otherwise have punished him as well as anyof his children. which was impossible he should do by virtue of any paternalauthority over one who was not his child, but by virtue of that executivepower of the law of Nature which, as a man, he had a right to; and he alonecould punish him in his family where the respect of his children had laidby the exercise of such a power, to give way to the dignity and authoritythey were willing should remain in him above the rest of his family.
75. Thus it was easy and almost naturalfor children, by a tacit and almost natural consent, to make way for thefather's authority and government. They had been accustomed in their childhoodto follow his direction, and to refer their little differences to him; andwhen they were men, who was fitter to rule them? Their little propertiesand less covetousness seldom afforded greater controversies; and when anyshould arise, where could they have a fitter umpire than he, by whose carethey had every one been sustained and brought up. and who had a tendernessfor them all? It is no wonder that they made no distinction betwixt minorityand full age, nor looked after one-and-twenty, or any other age, that mightmake them the free disposers of themselves and fortunes, when they couldhave no desire to be out of their pupilage. The government they had beenunder 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 asthey chanced to live long, and leave able and worthy heirs for several successionsor otherwise, so they laid the foundations of hereditary or elective kingdomsunder several constitutions and manors, according as chance, contrivance,or occasions happened to mould them. But if princes have their titles inthe father's right, and it be a sufficient proof of the natural right offathers to political authority, because they commonly were those in whosehands we find, de facto, the exercise of government, I say, if this argumentbe good, it will as strongly prove that all princes, nay, princes only, oughtto be priests, since it is as certain that in the beginning "the father ofthe family was priest, as that he was ruler in his own household."
Chapter 7: Of Political or Civil Society
77. GOD, having made man such a creaturethat, in His own judgment, it was not good for him to be alone, put him understrong obligations of necessity, convenience, and inclination, to drive himinto society, as well as fitted him with understanding and language to continueand enjoy it. The first society was between man and wife, which gave beginningto that between parents and children, to which, in time, that between masterand 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 mistressof 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 differentends, ties, and bounds of each of these.
78. Conjugal society is made by a voluntarycompact between man and woman, and though it consist chiefly in such a communionand 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 intereststoo, as necessary not only to unite their care and affection, but also necessaryto their common offspring, who have a right to be nourished and maintainedby them till they are able to provide for themselves.
79. For the end of conjunction betweenmale and female being not barely procreation, but the continuation of thespecies, this conjunction betwixt male and female ought to last, even afterprocreation, so long as is necessary to the nourishment and support of theyoung ones, who are to be sustained by those that got them till they areable to shift and provide for themselves. This rule, which the infinite wiseMaker hath set to the works of His hands, we find the inferior creaturessteadily obey. In those vivaporous animals which feed on grass the conjunctionbetween 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 itbe able to feed on grass. the male only begets, but concerns not himselffor the female or young, to whose sustenance he can contribute nothing. Butin beasts of prey the conjunction lasts longer because the dam, not beingable well to subsist herself and nourish her numerous offspring by her ownprey alone (a more laborious as well as more dangerous way of living thanby feeding on grass), the assistance of the male is necessary to the maintenanceof their common family, which cannot subsist till they are able to prey forthemselves, but by the joint care of male and female. The same is observedin all birds (except some domestic ones, where plenty of food excuses thecock from feeding and taking care of the young brood), whose young, needingfood in the nest, the cock and hen continue mates till the young are ableto use their wings and provide for themselves.
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80. And herein, I think, lies the chief,if not the only reason, why the male and female in mankind are tied to alonger conjunction than other creatures -- viz., because the female is capableof conceiving, and, de facto, is commonly with child again, and brings forthtoo a new birth, long before the former is out of a dependency for supporton his parents' help and able to shift for himself and has all the assistancedue to him from his parents, whereby the father, who is bound to take carefor those he hath begot, is under an obligation to continue in conjugal societywith the same woman longer than other creatures, whose young, being ableto subsist of themselves before the time of procreation returns again, theconjugal bond dissolves of itself, and they are at liberty till Hymen, athis usual anniversary season, summons them again to choose new mates. Whereinone cannot but admire the wisdom of the great Creator, who, having givento man an ability to lay up for the future as well as supply the presentnecessity, hath made it necessary that society of man and wife should bemore lasting than of male and female amongst other creatures, that so theirindustry might be encouraged, and their interest better united, to make provisionand lay up goods for their common issue, which uncertain mixture, or easyand frequent solutions of conjugal society, would mightily disturb.
81. But though these are ties upon mankindwhich make the conjugal bonds more firm and lasting in a man than the otherspecies 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, orupon certain conditions, as well as any other voluntary compacts, there beingno necessity, in the nature of the thing, nor to the ends of it, that itshould always be for life -- I mean, to such as are under no restraint ofany positive law which ordains all such contracts to be perpetual.
82. But the husband and wife, thoughthey have but one common concern, yet having different understandings, willunavoidably sometimes have different wills too. It therefore being necessarythat 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. Butthis, reaching but to the things of their common interest and property, leavesthe wife in the full and true possession of what by contract is her peculiarright, and at least gives the husband no more power over her than she hasover his life; the power of the husband being so far from that of an absolutemonarch that the wife has, in many cases, a liberty to separate from himwhere natural right or their contract allows it, whether that contract bemade by themselves in the state of Nature or by the customs or laws of thecountry they live in, and the children, upon such separation, fall to thefather or mother's lot as such contract does determine.
83. For all the ends of marriage beingto 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, naturallynecessary to those ends -- viz., procreation and mutual support and assistancewhilst they are together, but only decides any controversy that may arisebetween man and wife about them. If it were otherwise, and that absolutesovereignty and power of life and death naturally belonged to the husband,and were necessary to the society between man and wife, there could be nomatrimony in any of these countries where the husband is allowed no suchabsolute authority. But the ends of matrimony requiring no such power inthe husband, it was not at all necessary to it. The condition of conjugalsociety put it not in him; but whatsoever might consist with procreationand support of the children till they could shift for themselves -- mutualassistance, comfort, and maintenance -- might be varied and regulated bythat contract which first united them in that society, nothing being necessaryto any society that is not necessary to the ends for which it is made.
84. The society betwixt parents andchildren, and the distinct rights and powers belonging respectively to them,I have treated of so largely in the foregoing chapter that I shall not hereneed to say anything of it; and I think it is plain that it is far differentfrom a politic society.
85. Master and servant are names asold as history, but given to those of far different condition; for a freeman makes himself a servant to another by selling him for a certain timethe service he undertakes to do in exchange for wages he is to receive; andthough this commonly puts him into the family of his master, and under theordinary discipline thereof, yet it gives the master but a temporary powerover 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, subjectedto the absolute dominion and arbitrary power of their masters. These menhaving, as I say, forfeited their lives and, with it, their liberties, andlost their estates, and being in the state of slavery, not capable of anyproperty, 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 masterof a family with all these subordinate relations of wife, children, servantsand slaves, united under the domestic rule of a family, with what resemblancesoever 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 itmust be thought a monarchy, and the paterfamilias the absolute monarch init, absolute monarchy will have but a very shattered and short power, whenit is plain by what has been said before, that the master of the family hasa very distinct and differently limited power both as to time and extentover those several persons that are in it; for excepting the slave (and thefamily is as much a family, and his power as paterfamilias as great, whetherthere be any slaves in his family or no) he has no legislative power of lifeand death over any of them, and none too but what a mistress of a familymay have as well as he. And he certainly can have no absolute power overthe whole family who has but a very limited one over every individual init. But how a family, or any other society of men, differ from that whichis properly political society, we shall best see by considering wherein politicalsociety itself consists.
87. Man being born, as has been proved,with a title to perfect freedom and an uncontrolled enjoyment of all therights and privileges of the law of Nature, equally with any other man, ornumber of men in the world, hath by nature a power not only to preserve hisproperty -- that is, his life, liberty, and estate, against the injuriesand attempts of other men, but to judge of and punish the breaches of thatlaw 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 itselfthe power to preserve the property, and in order thereunto punish the offencesof all those of that society, there, and there only, is political societywhere every one of the members hath quitted this natural power, resignedit up into the hands of the community in all cases that exclude him not fromappealing for protection to the law established by it. And thus all privatejudgment of every particular member being excluded, the community comes tobe umpire, and by understanding indifferent rules and men authorised by thecommunity for their execution, decides all the differences that may happenbetween any members of that society concerning any matter of right, and punishesthose offences which any member hath committed against the society with suchpenalties 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 onebody, and have a common established law and judicature to appeal to, withauthority to decide controversies between them and punish offenders, arein 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 thereis no other, judge for himself and executioner; which is, as I have beforeshowed it, the perfect state of Nature.
88. And thus the commonwealth comesby a power to set down what punishment shall belong to the several transgressionsthey think worthy of it, committed amongst the members of that society (whichis the power of making laws), as well as it has the power to punish any injurydone unto any of its members by any one that is not of it (which is the powerof war and peace); and all this for the preservation of the property of allthe members of that society, as far as is possible. But though every manentered into society has quitted his power to punish offences against thelaw of Nature in prosecution of his own private judgment, yet with the judgmentof offences which he has given up to the legislative, in all cases wherehe can appeal to the magistrate, he has given up a right to the commonwealthto employ his force for the execution of the judgments of the commonwealthwhenever he shall be called to it, which, indeed, are his own judgements,they being made by himself or his representative. And herein we have theoriginal of the legislative and executive power of civil society, which isto judge by standing laws how far offences are to be punished when committedwithin the commonwealth; and also by occasional judgments founded on thepresent circumstances of the fact, how far injuries from without are to bevindicated, and in both these to employ all the force of all the memberswhen there shall be need.
89. Wherever, therefore, any numberof men so unite into one society as to quit every one his executive powerof the law of Nature, and to resign it to the public, there and there onlyis a political or civil society. And this is done wherever any number ofmen, in the state of Nature, enter into society to make one people one bodypolitic under one supreme government: or else when any one joins himselfto, and incorporates with any government already made. For hereby he authorisesthe society, or which is all one, the legislative thereof, to make laws forhim as the public good of the society shall require, to the execution whereofhis own assistance (as to his own decrees) is due. And this puts men outof a state of Nature into that of a commonwealth, by setting up a judge onearth with authority to determine all the controversies and redress the injuriesthat may happen to any member of the commonwealth, which judge is the legislativeor magistrates appointed by it. And wherever there are any number of men,however associated, that have no such decisive power to appeal to, therethey are still in the state of Nature.
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90. And hence it is evident that absolutemonarchy, which by some men is counted for the only government in the world,is indeed inconsistent with civil society, and so can be not form of civilgovernment at all. For the end of civil society being to avoid and remedythose inconveniences of the state of Nature which necessarily follow fromevery man's being judge in his own case, by setting up a known authorityto which every one of that society may appeal upon any injury received, orcontroversy that may arise, and which every one of the society ought to obey.4Wherever any persons are who have not such an authority to appeal to, anddecide any difference between them there, those persons are still in thestate of Nature. And so is every absolute prince in respect of those whoare under his dominion.
91. For he being supposed to have all,both legislative and executive, power in himself alone, there is no judgeto 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 expectedof 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 youplease, is as much in the state of Nature, with all under his dominion, ashe is with the rest of mankind. For wherever any two men are, who have nostanding rule and common judge to appeal to on earth, for the determinationof controversies of right betwixt them, there they are still in the stateof Nature, and under all the inconveniencies of it, with only this woefuldifference to the subject, or rather slave of an absolute prince.5 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 propertyis 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 commonstate of rational creatures, is denied a liberty to judge of, or defend hisright, and so is exposed to all the misery and inconveniencies that a mancan fear from one, who being in the unrestrained state of Nature, is yetcorrupted with flattery and armed with power.
92. For he that thinks absolute powerpurifies men's blood, and corrects the baseness of human nature, need readbut 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 wouldnot probably be much better on a throne, where perhaps learning and religionshall be found out to justify all that he shall do to his subjects, and thesword presently silence all those that dare question it. For what the protectionof absolute monarchy is, what kind of fathers of their countries it makesprinces to be, and to what a degree of happiness and security it carriescivil society, where this sort of government is grown to perfection, he thatwill 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 tothe law, and judges to decide any controversies, and restrain any violencethat may happen betwixt the subjects themselves, one amongst another. Thisevery one thinks necessary, and believes; he deserves to be thought a declaredenemy to society and mankind who should go about to take it away. But whetherthis be from a true love of mankind and society, and such a charity as weowe all one to another, there is reason to doubt. For this is no more thanwhat every man, who loves his own power, profit, or greatness, may, and naturallymust do, keep those animals from hurting or destroying one another who labourand 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 theprofit they bring him. For if it be asked what security, what fence is therein 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 itdeserves death only to ask after safety. Betwixt subject and subject, theywill grant, there must be measures, laws, and judges for their mutual peaceand security. But as for the ruler, he ought to be absolute, and is aboveall 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 injuryon that side, where the strongest hand is to do it, is presently the voiceof faction and rebellion. As if when men, quitting the state of Nature, enteredinto society, they agreed that all of them but one should be under the restraintof laws; but that he should still retain all the liberty of the state ofNature, increased with power, and made licentious by impunity. This is tothink that men are so foolish that they take care to avoid what mischiefsmay be done them by polecats or foxes, but are content, nay, think it safety,to be devoured by lions.
94. But, whatever flatterers may talkto amuse people's understandings, it never hinders men from feeling; andwhen they perceive that any man, in what station soever, is out of the boundsof 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 themselvesin the state of Nature, in respect of him whom they find to be so; and totake care, as soon as they can, to have that safety and security, in civilsociety, for which it was first instituted, and for which only they enteredinto it. And therefore, though perhaps at first, as shall be showed moreat large hereafter, in the following part of this discourse, some one goodand excellent man having got a pre-eminency amongst the rest, had this deferencepaid to his goodness and virtue, as to a kind of natural authority, thatthe chief rule, with arbitration of their differences, by a tacit consentdevolved into his hands, without any other caution but the assurance theyhad of his uprightness and wisdom; yet when time giving authority, and, assome men would persuade us, sacredness to customs, which the negligent andunforeseeing innocence of the first ages began, had brought in successorsof another stamp, the people finding their properties not secure under thegovernment as then it was6 (whereas government has no other end but the preservationof property), could never be safe, nor at rest, nor think themselves in civilsociety, till the legislative was so placed in collective bodies of men,call them senate, parliament, or what you please, by which means every singleperson became subject equally with other the meanest men, to those laws,which he himself, as part of the legislative, had established; nor couldany 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 hisown, or the miscarriages of any of his dependants. No man in civil societycan be exempted from the laws of it. For if any man may do what he thinksfit and there be no appeal on earth for redress or security against any harmhe 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 willsay the state of Nature and civil society are one and the same thing, whichI have never yet found any one so great a patron of anarchy as to affirm.7
Chapter 8: Of the Beginning of PoliticalSocieties
95. MEN being, as has been said, bynature all free, equal, and independent, no one can be put out of this estateand 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 communityfor their comfortable, safe, and peaceable living, one amongst another, ina secure enjoyment of their properties, and a greater security against anythat are not of it. This any number of men may do, because it injures notthe freedom of the rest; they are left, as they were, in the liberty of thestate of Nature. When any number of men have so consented to make one communityor government, they are thereby presently incorporated, and make one bodypolitic, 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 madethat community one body, with a power to act as one body, which is only bythe 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, mustmove one way, it is necessary the body should move that way whither the greaterforce carries it, which is the consent of the majority, or else it is impossibleit should act or continue one body, one community, which the consent of everyindividual that united into it agreed that it should; and so every one isbound by that consent to be concluded by the majority. And therefore we seethat in assemblies empowered to act by positive laws where no number is setby that positive law which empowers them, the act of the majority passesfor the act of the whole, and of course determines as having, by the lawof Nature and reason, the power of the whole.
97. And thus every man, by consentingwith others to make one body politic under one government, puts himself underan obligation to every one of that society to submit to the determinationof 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 wasin before in the state of Nature. For what appearance would there be of anycompact? What new engagement if he were no farther tied by any decrees ofthe society than he himself thought fit and did actually consent to? Thiswould be still as great a liberty as he himself had before his compact, orany one else in the state of Nature, who may submit himself and consent toany acts of it if he thinks fit.
98. For if the consent of the majorityshall not in reason be received as the act of the whole, and conclude everyindividual, nothing but the consent of every individual can make anythingto be the act of the whole, which, considering the infirmities of healthand avocations of business, which in a number though much less than thatof a commonwealth, will necessarily keep many away from the public assembly;and the variety of opinions and contrariety of interests which unavoidablyhappen 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 likeCato's coming into the theatre, tantum ut exiret. Such a constitution asthis would make the mighty leviathan of a shorter duration than the feeblestcreatures, and not let it outlast the day it was born in, which cannot besupposed till we can think that rational creatures should desire and constitutesocieties only to be dissolved. For where the majority cannot conclude therest, there they cannot act as one body, and consequently will be immediatelydissolved again.
99. Whosoever, therefore, out of a stateof Nature unite into a community, must be understood to give up all the powernecessary to the ends for which they unite into society to the majority ofthe community, unless they expressly agreed in any number greater than themajority. And this is done by barely agreeing to unite into one politicalsociety, which is all the compact that is, or needs be, between the individualsthat enter into or make up a commonwealth. And thus, that which begins andactually constitutes any political society is nothing but the consent ofany number of freemen capable of majority, to unite and incorporate intosuch a society. And this is that, and that only, which did or could givebeginning 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 thisway began and set up a government. 2. It is impossible of right that menshould do so, because all men, being born under government, they are to submitto that, and are not at liberty to begin a new one.
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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 littleaccount of men that lived together in the state of Nature. The inconvenienciesof that condition, and the love and want of society, no sooner brought anynumber of them together, but they presently united and in corporated if theydesigned to continue together. And if we may not suppose men ever to havebeen 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 inamongst a people till a long continuation of civil society has, by othermore necessary arts, provided for their safety, ease, and plenty. And thenthey begin to look after the history of their founders, and search into theiroriginal when they have outlived the memory of it. For it is with commonwealthsas with particular persons, they are commonly ignorant of their own birthsand infancies; and if they know anything of it, they are beholding for itto the accidental records that others have kept of it. And those that wehave of the beginning of any polities in the world, excepting that of theJews, where God Himself immediately interposed, and which favours not atall paternal dominion, are all either plain instances of such a beginningas I have mentioned, or at least have manifest footsteps of it.
102. He must show a strange inclinationto deny evident matter of fact, when it agrees not with his hypothesis, whowill not allow that the beginning of Rome and Venice were by the unitingtogether of several men, free and independent one of another, amongst whomthere was no natural superiority or subjection. And if Josephus Acosta'sword may be taken, he tells us that in many parts of America there was nogovernment at all. "There are great and apparent conjectures," says he, "thatthese men [speaking of those of Peru] for a long time had neither kings norcommonwealths, but lived in troops, as they do this day in Florida -- theCheriquanas, those of Brazil, and many other nations, which have no certainkings, but, as occasion is offered in peace or war, they choose their captainsas they please" (lib. i. cap. 25). If it be said, that every man there wasborn subject to his father, or the head of his family. that the subjectiondue from a child to a father took away not his freedom of uniting into whatpolitical society he thought fit, has been already proved; but be that asit will, these men, it is evident, were actually free; and whatever superioritysome politicians now would place in any of them, they themselves claimedit not; but, by consent, were all equal, till, by the same consent, theyset rulers over themselves. So that their politic societies all began froma voluntary union, and the mutual agreement of men freely acting in the choiceof their governors and forms of government.
103. And I hope those who went awayfrom Sparta, with Palantus, mentioned by Justin, will be allowed to havebeen freemen independent one of another, and to have set up a governmentover themselves by their own consent. Thus I have given several examplesout of history of people, free and in the state of Nature, that, being mettogether, incorporated and began a commonwealth. And if the want of suchinstances be an argument to prove that government were not nor could notbe so begun, I suppose the contenders for paternal empire were better letit alone than urge it against natural liberty; for if they can give so manyinstances 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 beof 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 searchtoo much into the original of governments as they have begun de facto, lestthey should find at the foundation of most of them something very littlefavourable to the design they promote, and such a power as they contend for.
104. But, to conclude: reason beingplain on our side that men are naturally free; and the examples of historyshowing that the governments of the world, that were begun in peace, hadtheir beginning laid on that foundation, and were made by the consent ofthe 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 erectingof governments.
105. I will not deny that if we lookback, as far as history will direct us, towards the original of commonwealths,we shall generally find them under the government and administration of oneman. And I am also apt to believe that where a family was numerous enoughto subsist by itself, and continued entire together, without mixing withothers, as it often happens, where there is much land and few people, thegovernment commonly began in the father. For the father having, by the lawof Nature, the same power, with every man else, to punish, as he thoughtfit, any offences against that law, might thereby punish his transgressingchildren, even when they were men, and out of their pupilage; and they werevery likely to submit to his punishment, and all join with him against theoffender in their turns, giving him thereby power to execute his sentenceagainst any transgression, and so, in effect, make him the law-maker andgovernor over all that remained in conjunction with his family. He was fittestto be trusted; paternal affection secured their property and interest underhis care, and the custom of obeying him in their childhood made it easierto submit to him rather than any other. If, therefore, they must have oneto rule them, as government is hardly to be avoided amongst men that livetogether, 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 himunfit 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 forrule, 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 himwhom they judged the ablest and most likely to rule well over them. Conformablehereunto we find the people of America, who -- living out of the reach ofthe conquering swords and spreading domination of the two great empires ofPeru and Mexico -- enjoyed their own natural freedom, though, caeteris paribus,they commonly prefer the heir of their deceased king; yet, if they find himany way weak or incapable, they pass him by, and set up the stoutest andbravest man for their ruler.
106. Thus, though looking back as faras records give us any account of peopling the world, and the history ofnations, we commonly find the government to be in one hand, yet it destroysnot that which I affirm -- viz., that the beginning of politic society dependsupon 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 theythought fit. But this having given occasion to men to mistake and think that,by Nature, government was monarchical, and belonged to the father, it maynot be amiss here to consider why people, in the beginning, generally pitchedupon this form, which, though perhaps the father's pre-eminency might, inthe first institution of some commonwealths, give a rise to and place inthe beginning the power in one hand, yet it is plain that the reason thatcontinued the form of government in a single person was not any regard orrespect to paternal authority, since all petty monarchies -- that is, almostall monarchies, near their original, have been commonly, at least upon occasion,elective.
107. First, then, in the beginning ofthings, the father's government of the childhood of those sprung from himhaving accustomed them to the rule of one man, and taught them that whereit was exercised with care and skill, with affection and love to those underit, it was sufficient to procure and preserve men (all the political happinessthey sought for in society), it was no wonder that they should pitch uponand naturally run into that form of government which, from their infancy,they had been all accustomed to, and which, by experience, they had foundboth easy and safe. To which if we add, that monarchy being simple and mostobvious to men, whom neither experience had instructed in forms of government,nor the ambition or insolence of empire had taught to beware of the encroachmentsof prerogative or the inconveniencies of absolute power, which monarchy,in succession, was apt to lay claim to and bring upon them; it was not atall strange that they should not much trouble themselves to think of methodsof restraining any exorbitances of those to whom they had given the authorityover them, and of balancing the power of government by placing several partsof it in different hands. They had neither felt the oppression of tyrannicaldominion, nor did the fashion of the age, nor their possessions or way ofliving, which afforded little matter for covetousness or ambition, give themany reason to apprehend or provide against it; and, therefore, it is no wonderthey put themselves into such a frame of government as was not only, as Isaid, most obvious and simple, but also best suited to their present stateand condition, which stood more in need of defence against foreign invasionsand injuries than of multiplicity of laws where there was but very littleproperty, and wanted not variety of rulers and abundance of officers to directand look after their execution where there were but few trespassers and fewoffenders. Since, then, those who liked one another so well as to join intosociety cannot but be supposed to have some acquaintance and friendship together,and some trust one in another, they could not but have greater apprehensionsof others than of one another; and, therefore, their first care and thoughtcannot 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 whichmight best serve to that end, and choose the wisest and bravest man to conductthem in their wars and lead them out against their enemies, and in this chieflybe their ruler.
108. Thus we see that the kings of theIndians, in America, which is still a pattern of the first ages in Asia andEurope, whilst the inhabitants were too few for the country, and want ofpeople and money gave men no temptation to enlarge their possessions of landor contest for wider extent of ground, are little more than generals of theirarmies; and though they command absolutely in war, yet at home, and in timeof peace, they exercise very little dominion, and have but a very moderatesovereignty, the resolutions of peace and war being ordinarily either inthe people or in a council, though the war itself, which admits not of pluralitiesof governors, naturally evolves the command into the king's sole authority.
109. And thus, in Israel itself, thechief business of their judges and first kings seems to have been to be captainsin war and leaders of their armies, which (besides what is signified by "goingout and in before the people," which was, to march forth to war and homeagain 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, whichthey 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 hejudged Israel" (Judges 12. 7) -- that is, was their captain-general -- "sixyears." So when Jotham upbraids the Shechemites with the obligation theyhad to Gideon, who had been their judge and ruler, he tells them: "He foughtfor you, and adventured his life for, and delivered you out of the handsof Midian" (Judges 9. 17). Nothing mentioned of him but what he did as ageneral, and, indeed, that is all is found in his history, or in any of therest of the judges. And Abimelech particularly is called king, though atmost he was but their general. And when, being weary of the ill-conduct ofSamuel'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" (1Sam. 8. 20), God, granting their desire, says to Samuel, "I will send theea man, and thou shalt anoint him to be captain over my people Israel, thathe may save my people out of the hands of the Philistines" (ch. 9. 16). Asif the only business of a king had been to lead out their armies and fightin their defence; and, accordingly, at his inauguration, pouring a vial ofoil upon him, declares to Saul that "the Lord had anointed him to be captainover his inheritance" (ch. 10. 1). And therefore those who, after Saul beingsolemnly chosen and saluted king by the tribes at Mispah, were unwillingto have him their king, make no other objection but this, "How shall thisman save us?" (ch. 10. 27), as if they should have said: "This man is unfitto be our king, not having skill and conduct enough in war to be able todefend us." And when God resolved to transfer the government to David, itis in these words: "But now thy kingdom shall not continue: the Lord hathsought Him a man after His own heart, and the Lord hath commanded him tobe captain over His people" (ch. 13. 14.). As if the whole kingly authoritywere nothing else but to be their general; and therefore the tribes who hadstuck to Saul's family, and opposed David's reign, when they came to Hebronwith 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, theirking in Saul's time, and therefore they had no reason but to receive himas their king now. "Also," say they, "in time past, when Saul was king overus, thou wast he that leddest out and broughtest in Israel, and the Lordsaid unto thee, Thou shalt feed my people Israel, and thou shalt be a captainover Israel."
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110. Thus, whether a family, by degrees,grew up into a commonwealth, and the fatherly authority being continued onto the elder son, every one in his turn growing up under it tacitly submittedto it, and the easiness and equality of it not offending any one, every oneacquiesced till time seemed to have confirmed it and settled a right of successionby prescription; or whether several families, or the descendants of severalfamilies, whom chance, neighbourhood, or business brought together, unitedinto society; the need of a general whose conduct might defend them againsttheir enemies in war, and the great confidence the innocence and sincerityof that poor but virtuous age, such as are almost all those which begin governmentsthat ever come to last in the world, gave men one of another, made the firstbeginners of commonwealths generally put the rule into one man's hand, withoutany other express limitation or restraint but what the nature of the thingand the end of government required. It was given them for the public goodand safety, and to those ends, in the infancies of commonwealths, they commonlyused it; and unless they had done so, young societies could not have subsisted.Without such nursing fathers, without this care of the governors, all governmentswould have sunk under the weakness and infirmities of their infancy, theprince and the people had soon perished together.
111. But the golden age (though beforevain ambition, and amor sceleratus habendi, evil concupiscence had corruptedmen's minds into a mistake of true power and honour) had more virtue, andconsequently better governors, as well as less vicious subjects; and therewas then no stretching prerogative on the one side to oppress the people,nor, consequently, on the other, any dispute about privilege, to lessen orrestrain the power of the magistrate; and so no contest betwixt rulers andpeople about governors or government.8 Yet, when ambition and luxury, infuture ages, would retain and increase the power, without doing the businessfor which it was given, and aided by flattery, taught princes to have distinctand separate interests from their people, men found it necessary to examinemore carefully the original and rights of government, and to find out waysto restrain the exorbitances and prevent the abuses of that power, whichthey having entrusted in another's hands, only for their own good, they foundwas made use of to hurt them.
112. Thus we may see how probable itis that people that were naturally free, and, by their own consent, eithersubmitted to the government of their father, or united together, out of differentfamilies, to make a government, should generally put the rule into one man'shands, and choose to be under the conduct of a single person, without somuch, as by express conditions, limiting or regulating his power, which theythought safe enough in his honesty and prudence; though they never dreamedof monarchy being jure Divino, which we never heard of among mankind tillit was revealed to us by the divinity of this last age, nor ever allowedpaternal power to have a right to dominion or to be the foundation of allgovernment. And thus much may suffice to show that, as far as we have anylight from history, we have reason to conclude that all peaceful beginningsof 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, whichsome esteem a way of beginning of governments.
The other objection, I find, urged against the beginning of polities, inthe way I have mentioned, is this, viz.:
113. "That all men being born undergovernment, some or other, it is impossible any of them should ever be freeand at liberty to unite together and begin a new one, or ever be able toerect a lawful government." If this argument be good, I ask, How came somany 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 lawfulmonarchy, I will be bound to show him ten other free men at liberty, at thesame time, to unite and begin a new government under a regal or any otherform. It being demonstration that if any one born under the dominion of anothermay be so free as to have a right to command others in a new and distinctempire, every one that is born under the dominion of another may be so freetoo, 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 payobedience to him.
114. Though it be a sufficient answerto their objection to show that it involves them in the same difficultiesthat it doth those they use it against, yet I shall endeavour to discoverthe weakness of this argument a little farther.
"All men," say they, "are born under government, and therefore they cannotbe at liberty to begin a new one. Every one is born a subject to his fatheror his prince, and is therefore under the perpetual tie of subjection andallegiance." It is plain mankind never owned nor considered any such naturalsubjection 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 frequentin history, both sacred and profane, as those of men withdrawing themselvesand their obedience from the jurisdiction they were born under, and the familyor community they were bred up in, and setting up new governments in otherplaces, from whence sprang all that number of petty commonwealths in thebeginning of ages, and which always multiplied as long as there was roomenough, till the stronger or more fortunate swallowed the weaker; and thosegreat ones, again breaking to pieces, dissolved into lesser dominions; allwhich are so many testimonies against paternal sovereignty, and plainly provethat it was not the natural right of the father descending to his heirs thatmade governments in the beginning; since it was impossible, upon that ground,there should have been so many little kingdoms but only one universal monarchyif men had not been at liberty to separate themselves from their familiesand their government, be it what it will that was set up in it, and go andmake distinct commonwealths and other governments as they thought fit.
116. This has been the practice of theworld from its first beginning to this day; nor is it now any more hindranceto the freedom of mankind, that they are born under constituted and ancientpolities that have established laws and set forms of government, than ifthey were born in the woods amongst the unconfined inhabitants that run loosein them. For those who would persuade us that by being born under any governmentwe are naturally subjects to it, and have no more any title or pretence tothe freedom of the state of Nature, have no other reason (bating that ofpaternal power, which we have already answered) to produce for it, but onlybecause our fathers or progenitors passed away their natural liberty, andthereby bound up themselves and their posterity to a perpetual subjectionto the government which they themselves submitted to. It is true that whateverengagements or promises any one made for himself, he is under the obligationof 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 actof the father can no more give away the liberty of the son than it can ofanybody 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 thatestate being his father's property, he may dispose or settle it as he pleases.
117. And this has generally given theoccasion to the mistake in this matter; because commonwealths not permittingany part of their dominions to be dismembered, nor to be enjoyed by any butthose of their community, the son cannot ordinarily enjoy the possessionsof his father but under the same terms his father did, by becoming a memberof the society, whereby he puts himself presently under the government hefinds there established, as much as any other subject of that commonweal.And thus the consent of free men, born under government, which only makesthem members of it, being given separately in their turns, as each comesto 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 naturallysubjects as they are men.
118. But it is plain governmentsthemselves understand it otherwise; they claim no power over the son becauseof 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 byan 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 Kingof France's, for how then has his father a liberty to bring him away, andbreed 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 parentsthat were aliens there? It is plain, then, by the practice of governmentsthemselves, as well as by the law of right reason, that a child is born asubject of no country nor government. He is under his father's tuition andauthority till he come to age of discretion, and then he is a free man, atliberty what government he will put himself under, what body politic he willunite himself to. For if an Englishman's son born in France be atliberty, and may do so, it is evident there is no tie upon himby his father being a subject of that kingdom, nor is he bound up by anycompact of his ancestors; and why then hath not his son, by the same reason, the same liberty, though he beborn anywhere else? Since the power that a father hath naturally over hischildren is the same wherever they be born, and the ties of naturalobligations are not bounded by the positive limits of kingdoms and commonwealths.
119. Every man being, as hasbeen showed, naturally free, and nothing being able to put him into subjectionto any earthly power, but only his own consent, it is to be consideredwhat shall be understood to be a sufficient declaration of a man's consentto make him subject to the laws of any government. There is a common distinctionof an express and a tacit consent, which will concern our present case. Nobodydoubts but an express consent of any man, entering into any society, makeshim a perfect member of that society, a subject of that government. The difficultyis, 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 therebysubmitted 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 ofany 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 beof land to him and his heirs for ever, or a lodging only for a week; or whetherit be barely travelling freely on the highway; and, in effect, it reachesas far as the very being of any one within the territories of that government.
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120. To understand this the better,it is fit to consider that every man when he at first incorporates himselfinto 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 adirect contradiction for any one to enter into society with others for thesecuring and regulating of property, and yet to suppose his land, whose propertyis to be regulated by the laws of the society, should be exempt from thejurisdiction of that government to which he himself, and the property ofthe land, is a subject. By the same act, therefore, whereby any one uniteshis person, which was before free, to any commonwealth, by the same he uniteshis possessions, which were before free, to it also; and they become, bothof them, person and possession, subject to the government and dominion ofthat commonwealth as long as it hath a being. Whoever therefore, from thenceforth,by inheritance, purchases permission, or otherwise enjoys any part of theland so annexed to, and under the government of that commonweal, must takeit with the condition it is under -- that is, of submitting to the governmentof the commonwealth, under whose jurisdiction it is, as far forth as anysubject of it.
121. But since the government has adirect jurisdiction only over the land and reaches the possessor of it (beforehe has actually incorporated himself in the society) only as he dwells uponand enjoys that, the obligation any one is under by virtue of such enjoymentto submit to the government begins and ends with the enjoyment; so that wheneverthe owner, who has given nothing but such a tacit consent to the governmentwill, by donation, sale or otherwise, quit the said possession, he is atliberty to go and incorporate himself into any other commonwealth, or agreewith others to begin a new one in vacuis locis, in any part of the worldthey can find free and unpossessed; whereas he that has once, by actual agreementand any express declaration, given his consent to be of any commonweal, isperpetually and indispensably obliged to be, and remain unalterably a subjectto it, and can never be again in the liberty of the state of Nature, unlessby any calamity the government he was under comes to be dissolved.
122. But submitting to the laws of anycountry, living quietly and enjoying privileges and protection under them,makes not a man a member of that society; it is only a local protection andhomage due to and from all those who, not being in a state of war, come withinthe territories belonging to any government, to all parts whereof the forceof 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 subjectto 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 lawsand submit to the government he found there. And thus we see that foreigners,by living all their lives under another government, and enjoying the privilegesand protection of it, though they are bound, even in conscience, to submitto its administration as far forth as any denizen, yet do not thereby cometo be subjects or members of that commonwealth. Nothing can make any manso but his actually entering into it by positive engagement and express promiseand compact. This is that which, I think, concerning the beginning of politicalsocieties, and that consent which makes any one a member of any commonwealth.
Chapter 9: Of the Ends of Political Societyand Government
123. "IF man in the state of Naturebe so free as has been said, if he be absolute lord of his own person andpossessions, equal to the greatest and subject to nobody, why will he partwith his freedom, this empire, and subject himself to the dominion and controlof any other power?
To which it is obvious to answer,that though in the state of Nature he hath such a right, yet the enjoymentof 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 partno strict observers of equity and justice, the enjoyment of the propertyhe has in this state is very unsafe, very insecure.
This makes him willing to quit this conditionwhich, however free, is full of fears and continual dangers; and it is notwithout reason that he seeks out and is willing to join in society with otherswho are already united, or have a mind to unite for the mutual preservationof 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 theirproperty; 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 rightand 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 ofstudy of it, are not apt to allow of it as a law binding to them in the applicationof it to their particular cases.
125. Secondly, in the state of Naturethere wants a known and indifferent judge, with authority to determine alldifferences according to the established law. For every one in that statebeing both judge and executioner of the law of Nature, men being partialto themselves, passion and revenge is very apt to carry them too far, andwith 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 Naturethere often wants power to back and support the sentence when right, andto give it due execution. They who by any injustice offended will seldomfail where they are able by force to make good their injustice. Such resistancemany times makes the punishment dangerous, and frequently destructive tothose who attempt it.
127. Thus mankind, notwithstanding allthe privileges of the state of Nature, being but in an ill condition whilethey 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 anduncertain exercise of the power every man has of punishing the transgressionsof others, make them take sanctuary under the established laws of government,and therein seek the preservation of their property. It is this that makesthem so willingly give up every one his single power of punishing to be exercisedby such alone as shall be appointed to it amongst them, and by such rulesas the community, or those authorised by them to that purpose, shall agreeon. And in this we have the original right and rise of both the legislativeand executive power as well as of the governments and societies themselves.
128. For in the state of Natureto omit the liberty he has of innocent delights, a man has two powers. Thefirst is to do whatsoever he thinks fit for the preservation of himselfand 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 distinctfrom all other creatures, and were it not for the corruption and viciousnessof degenerate men, there would be no need of any other, no necessity thatmen should separate from this great and natural community, and associateinto lesser combinations. The other power a man has in the state of Natureis the power to punish the crimes committed against that law. Both thesehe gives up when he joins in a private, if I may so call it, or particularpolitical society, and incorporates into any commonwealth separate from therest of mankind.
129. The first power- viz., of doingwhatsoever he thought fit for the preservation of himself and the rest ofmankind, he gives up to be regulated by laws made by the society, so farforth 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 thelaw of Nature.
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130. Secondly, the power of punishinghe wholly gives up, and engages his natural force, which he might beforeemploy 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 lawthereof shall require. For being now in a new state, wherein he is to enjoymany conveniencies from the labour, assistance, and society of others inthe same community, as well as protection from its whole strength, he isto 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 isnot only necessary but just, since the other members of the society do thelike.
131. But though men when they enterinto society give up the equality, liberty, and executive power they hadin the state of Nature into the hands of the society, to be so far disposedof by the legislative as the good of the society shall require, yet it beingonly with an intention in every one the better to preserve himself, his libertyand property (for no rational creature canbe supposed to change his condition with an intention to be worse), thepower of the society or legislative constituted by them can never be supposedto extend farther than the common good, but is obliged to secure every one'sproperty by providing against those three defects above mentioned that madethe state of Nature so unsafe and uneasy. And so, whoever hasthe legislative or supreme power of any commonwealth, is bound togovern 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 ofthe community at home only in the execution of such laws, or abroad to preventor redress foreign injuries and secure the community from inroads andinvasion. And all this to be directed to no other end but thepeace, safety, and public good of the people.
Chapter 10: Of the Forms of a Commonwealth
132. THE majority having, as has beenshowed, upon men's first uniting into society, the whole power of the communitynaturally in them, may employ all that power in making laws for the communityfrom 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 putthe power of making laws into the hands of a few select men, and their heirsor successors, and then it is an oligarchy; or else into the hands of oneman, and then it is a monarchy; if to him and his heirs, it is a hereditarymonarchy; if to him only for life, but upon his death the power only of nominatinga successor, to return to them, an elective monarchy. And so accordinglyof 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 ormore persons only for their lives, or any limited time, and then the supremepower to revert to them again, when it is so reverted the community may disposeof it again anew into what hands they please, and so constitute a new formof government; for the form of government depending upon the placing thesupreme power, which is the legislative, it being impossible to conceivethat an inferior power should prescribe to a superior, or any but the suprememake laws, according as the power of making laws is placed, such is the formof the commonwealth.
133. By "commonwealth" I mustbe understood all along to mean NOT a democracy, or any formof government, but ANY independent community which the Latinssignified by the word civitas, to which the word which best answers in ourlanguage is "commonwealth," and most properly expresses such a societyof men which "community" does not (for there may be subordinate communitiesin a government), and "city" much less. And therefore, to avoid ambiguity,I crave leave to use the word "commonwealth" in that sense, in which senseI find the word used by King James himself, which I think to be its genuinesignification, which, if anybody dislike, I consent with him to changeit for a better.
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Chapter 11: Of the Extent of the Legislative Power
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 laws9 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.
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.10 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, 11 (APP Note: See these exact words in the Rights of the Colonists) 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 power of a multitude, to force them to obey at pleasure the exorbitant and unlimited decrees of their sudden thoughts, or unrestrained, and till that moment, unknown wills, without having any measures set down which may guide and justify their actions. For all the power the government has, being only for the good of the society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws, that both the people may know their duty, and be safe and secure within the limits of the law, and the rulers, too, kept within their 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. (APP Note: See these exact words in the Rights of the Colonists) 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. (APP Note: The United Nations Has No Powers because the United States having limited delegated powers cannot arrogate new powers nor transfer powers, not existing or contrary to the peoples rights, of the United States, 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.
(APP Note: See these exact words in the Rights of the Colonists)
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.
Chapter 12: The Legislative, Executive, and Federative Power
of the Commonwealth
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.
Chapter 13: Of the Subordination of the Powers of the Commonwealth
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. (APP Note: These words found in the Declaration of Independence) 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 proportion to the assistance which it affords to the public, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly as well as inevitably introduced; for it being the interest as well as intention of the people to have a fair and equal representative, whoever brings it nearest to that is an undoubted friend to and establisher of the government, and cannot miss the consent and approbation of the community; prerogative being nothing but a power in the hands of the prince to provide for the public good in such cases which, depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct. Whatsoever shall be done manifestly for the good of the people, and 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.
Chapter 14: Of Prerogative
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; (APP Note: This Appeal to heaven is clearly written in the Declaration of Independence) 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.
Chapter 15: Of Paternal, Political and Despotical Power Considered Together
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 by -- capable, 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.
Chapter 16: Of Conquest
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 court -- no arbitrator on earth to appeal to. Then they may appeal, as Jephtha did, to Heaven, and repeat their appeal till they have recovered the native right of their ancestors, which was to have such a legislative over them as the majority should approve and freely acquiesce in. If it be objected this would cause endless trouble, I answer, no more than justice does, where she lies open to all that appeal to her. He that troubles his neighbour without a cause is punished for it by the justice of the court he appeals to. And he that appeals to Heaven must be sure he has right on his side, and a right, too, that is worth the trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived, and will be sure to retribute to every one according to the mischiefs he hath created to his fellow-subjects -- that is, any part of mankind. From whence it is plain that he that conquers in an unjust war can thereby have no title to the subjection and obedience of the conquered.
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?
APP Note: Relate this to US Land Patents absolute granting of properties and the Attempt of the Federal Government to condemn such land (or water by common law attached to the land) later, or the state to condemn such property after giving consent to adjudicate such transfer by authority of the United States by which it was a party, or to create new regulations upon it after granting it with none; To encircle that land in national monument and control the inroads and water, or to regulate limits to anything with regard to it, or to arbitrarily tax it into debt and thereby rendering the land not owned but rented, when no taxes were in established at the receiving of it, or to tax it without consent, or tax without consent for things built upon that property to improve its value, or raised upon it to derive sustenance and earnings from his labors, or derive any such without consent from those he wills it to.
And you will find the neither the federal government, nor the state government has no power to do so, nor has any power of such been delegated to it by the original compact.
For once property is possessed of a person, it is any governments duty to protect it, and not to devise a design to wrest it away after all rights had been released ; As this clearly established by Locke that the protection of property is the purpose of government and the reason that the person enters into society.
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.
Chapter 17: Of Usurpation
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.
Chapter 18: Of Tyranny
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 £100 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?
Chapter 19: Of the Dissolution of Government
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 tyranny if there be no means to escape it till they are perfectly under it; and, therefore, it is that they have not only a right to get out of it, but to prevent it.
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,
(APP Note: See this in Samuel Adams Statement within the Rights of the Colonists, 1772: "If men through fear, fraud or mistake, should in terms renounce and give up any essential natural right, the eternal law of reason and the great end of society, would absolutely vacate such renunciation; the right to freedom being the gift of God Almighty, it is not in the power of Man to alienate this gift, and voluntarily become a slave.")
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, (APP Note: See this in the Declaration of Independence) 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"
(APP Note: See this in the Declaration of Independence and compare 223-226:
(" ... But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a "design" to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government and to provide new guards for their future security.)
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.
(APP Note: Here again, Review the following 223-226 also clearly seen and leaving no doubt as to where the foundations of the Declaration of Independence were derived:
Declaration of Independence " ...Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are "more disposed to suffer", while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.")
Now view Locke 80 years earlier:
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 rebellare -- that is, bring back again the state of war, and are properly rebels, which they who are in power, by the pretence they have to authority, the temptation of force they have in their hands, and the flattery of those about them being likeliest to do, the 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. (APP Note: Again Review the Declaration of Independence for these exact words and or meaning) 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 restituendae 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 intolerabilis 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. (APP Note: This is opposed by "All men are created equal" as the true law of 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."
(APP Note: Relate this to a national government who places its people into the hands of a world government (or organization), or under the control of foriegn treaties - then Review the APP news letter on the Constitutional Debates, what must occur, and what are the protections of the states, with regard to when a national government becomes disingenuous to its "original compact".)
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.
(APP Note: See this "Appeal" in the Declaration of Independence)
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.
1. [An Essay Concerning Certain False Principles.]
2. [Richard Hooker, The Laws of Ecclesiastical Polity.]
3. "It is no improbable opinion, therefore, which the arch-philosopher was of, That the chief person in every household was always, as it were, a king; so when numbers of households joined themselves in civil societies together, kings were the first kind of governors among them, which is also, as it seemeth, the reason why the name of fathers continued still in them, who of fathers were made rulers; as also the ancient custom of governors to do as Melchizedec; and being kings, to exercise the office of priests, which fathers did, at the first, grew, perhaps, by the same occasion. Howbeit, this is not the only kind of regimen that has been received in the world. The inconveniencies of one kind have caused sundry others to be devised, so that, in a word, all public regimen, of what kind soever, seemeth evidently to have risen from the deliberate advice, consultation and composition between men, judging it convenient and behoveful, there being no impossibility in Nature, considered by itself, but that man might have lived without any public regimen." Hooker, Eccl. Pol., i. 10.
4. "The public power of all society is above every soul contained in the same society, and the principal use of that power is to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason showed which may necessarily enforce that the law of reason or of God doth enjoin the contrary." Hooker, Eccl. Pol., i. 16.
5. "To take away all such mutual grievances, injuries, and wrongs -- i.e., such as attend men in the state of Nature, there was no way but only by growing into composition and agreement amongst themselves by ordaining some kind of government public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy estate of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves. They knew that, however men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men and all good means to be withstood. Finally, they knew that no man might, in reason, take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore, that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another." Hooker, ibid. 10.
6. "At the first, when some certain kind of regimen was once appointed, it may be that nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion which were to rule till, by experience, they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man's will became the cause of all men's misery. This constrained them to come unto laws wherein all men might see their duty beforehand, and know the penalties of transgressing them." Hooker, Eccl. Pol. i. 10.
7. "Civil law, being the act of the whole body politic, doth therefore overrule each several part of the same body." Hooker, ibid.
8. "At the first, when some certain kind of regimen was once appointed, it may be that nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion which were to rule till, by experience, they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man's will became the cause of all men's misery. This constrained them to come unto laws wherein all men might see their duty beforehand, and know the penalties of transgressing them." Hooker, Eccl. Pol. i. 10.
9. "The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same entire societies, that for any prince or potentate, of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which public approbation hath not made so." Hooker, ibid. 10.
"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.
10. "Two foundations there are which bear up public societies; the one a natural inclination whereby all men desire sociable life and fellowship; the other an order, expressly or secretly agreed upon, touching the manner of their union in living together. The latter is that which we call the law of a commonwealth, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good requireth. Laws politic, ordained for external order and regimen amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they do accordingly provide notwithstanding, so to frame his outward actions, that they be no hindrance unto the common good, for which societies are instituted. Unless they do this they are not perfect." Hooker, Eccl. Pol. i. 10.
11. "Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two -- the law of God and the law of Nature; so that laws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made." Hooker, Eccl. Pol. iii. 9.
"To constrain men to anything "inconvenient" doth seem "unreasonable"." Ibid. i. 10. |
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