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CHAPTER XI.
Of the Forms of a Common-wealth.
Sec. 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 establis/hed in that
society; the first and fundamental positive law of all
common-wealths is the establishing of the legisl ative power; as
the first and fundamental natural law, which is to govern even
the legislative itself, is the preservation of the society, and
(as far as will consist with the public good) of every person in it. This
legislative is not only the supreme power of the
common-wealth, but sacred and unalterable in the hands where the community
have once placed it; nor can any edict of any body else, in what form
soever conceived, or by what power soever backed, have the force and
obligation of a law, which has not its sanction from that
legislative which the public has chosen and appointed: for without
this the law could not have that, which is absolutely necessary to its
being a law,* the consent of the society, over whom no body can
have a power to make laws, but by their own consent, and by authority
received from them; and therefore all the obedience, which by the
most solemn ties any one can be obliged to pay, ultimately terminates in
this supreme power, and is directed by those laws which it
enacts: nor can any oaths to any foreign power whatsoever, or any domestic
subordinate power, discharge any member of the society from his
obedience to the legislative, acting pursuant to their trust;
nor oblige him to any obedience contrary to the laws so enacted, or
farther than they do allow; it being ridiculous to imagine one can be tied
ultimately to obey any power in the society, which is not the
supreme.
(*The lawful power of making laws to command whole politic
societies of men, belonging so properly unto the same intire societies,
that for any prince or potentate of what kind soever upon earth, to
exercise the same of himself, and not by express commission immediately
and personally received from God, or else by authority derived at the
first from their consent, upon whose persons they impose laws, it is no
better than mere tyranny. Laws they are not therefore which public
approbation hath not made so. Hooker's Eccl. Pol. l. i. sect.
10. Of this point therefore we are to note, that sith men naturally have
no full and perfect power to command whole politic multitudes of men,
therefore utterly without our consent, we could in such sort be at no
man's commandment living. And to be commanded we do consent, when that
society, whereof we be a part, hath at any time before consented, without
revoking the same after by the like universal agreement.
Laws therefore human, of what kind so ever, are available by
consent. Ibid.)
Sect. 135. Though the legislative,
whether placed in one or more, whether it be always in being, or only by
intervals, though it be the supreme power in every common-wealth;
yet,
First, It is not, nor can possibly be absolutely
arbitrary over the lives and fortunes of the people: for it being
but the joint power of every member of the society given up to that
person, or assembly, which is legislator; it can be no more than those
persons had in a state of nature before they entered into society, and
gave up to the community: for no body can transfer to another more power
than he has in himself; and no body has an absolute arbitrary power over
himself, or over any other, to destroy his own life, or take away the life
or property of another. A man, as has been proved, cannot subject himself
to the arbitrary power of another; and having in the state of nature no
arbitrary power over the life, liberty, or possession of another, but only
so much as the law of nature gave him for the preservation of himself, and
the rest of mankind; this is all he cloth, or can give up to the
common-wealth, and by it to the legislative power, so that the
legisla tive can have no more than this. Their power, in the utmost
bounds of it, is limited to the public good of the society. It
is a power, that hath no other end but preservation, and therefore can
never* have a right to destroy, enslave, or designedly to impoverish the
subjects. The obligations of the law of nature cease not in society, but
only in many cases are drawn closer, and have by human laws known
penalties annexed to them, to inforce their observation. Thus the law of
nature stands as an eternal rule to all men, legislators as well
as others. The rules that they make for other men's actions, must, as
well as their own and other men's actions, be conformable to the law of
nature, i.e. to the will of God, of which that is a de claration, and the
fundamental law of nature being the preservation of mankind, no human
sanction can be good, or valid against it.
(*Two foundations there are which bear up public societies; the one a
natural inclination, whereby all men desire sociable life and fellowship;
the other an order, expresly or secretly agreed upon, touching the manner
of their union in living toge ther: the latter is that which we call the
law of a common-weal, the very soul of a politic body, the parts whereof
are by law animated, held together, and set on work in such actions as the
common good requireth. Laws politic, ordained for external order and
regiment amongst men, are never framed as they should be, unless presuming
the will of man to be inwardly obstinate, rebellious, and averse from all
obedience to the sacred laws of his nature; in a word, unless presuming
man to be, in regard of his depraved mind, little better than a wild
beast, they do accordingly provide, notwithstanding, so to frame his
outward actions, that they be no hindrance unto the common good, for which
societies are instituted. Unless they do this, they are not perfect.
Hooker's Eccl. Pol. l. i. sect. 10.)
Sect. 136. Secondly,* The
legislative, or supreme authority, cannot assume to its self a
power to rule by extemporary arbitrary decrees, but is bound to
dispense justice, and decide the rights of the s ubject by
promulgated standing laws, and known authorized judges: for the law
of nature being unwritten, and so no where to be found but in the minds of
men, they who through passion or interest shall miscite, or misapply it,
cannot so easily be convinced of their mistake where there is no
established judge: and so it serves not, as it ought, to determine the
rights, and fence the properties of those that live under it, especially
where every one is judge, interpreter, and executioner of it too, and that
in his own case: and he that has right on his side, having ordinarily but
his own single strength, hath not force enough to defend himself from
injuries, or to punish delinquents. To avoid these inconveniences, which
disorder men's propperties in the state of nature, men unite into
societies, that they may have the united strength of the whole society to
secure and defend their properties, and may have standing rules
to bound it, by which every one may know what is his. To this end it is
that men give up all their natural power to the society which they enter
into, and the community put the legislative power into such hands as they
think fit, with this trust, that they shall be governed by declared
laws, or else their peace, quiet, and property will still be at the
same uncertainty, as it was in the state of nature.
(*Human laws are measures in respect of men whose actions they
must direct, howbeit such measures they are as have also their higher
rules to be measured by, which rules are two, the law of God, and the law
of nature; so that laws human must be made according to the general laws
of nature, and without contradiction to any positive law of scripture,
otherwise they are ill made. Hooker's Eccl. Pol. l. iii. sect.
9.
To constrain men to any thing inconvenient cloth seem
unreasonable. Ibid. l. i. sect. 10.)
Sect. 137. Absolute arbitrary power, or
governing without settled standing laws, can neither of them
consist with the ends of society and government, which men would not quit
the freedom of the state of nature for, and tie themselves up under, were
it not to preserve their lives, liberties and fortunes, and by stated
rules of right and property to secure their peace and quiet. It
cannot be supposed that they should intend, had they a power so to do, to
give to any one, or more, an absolute arbitrary power over their
persons and estates, and put a force into the magistrate's hand to
execute his unlimited will arbitrarily upon them. This were to put
themselves into a worse condition than the state of nature, wherein they
had a liberty to defend their right against the injuries of others, and
were upon equal terms of force to maintain it, whether invaded by a single
man, or many in combination. Whereas by supposing they have given up
themselves to the absolute arbitrary power and will of a
legislator, they have disarmed themselves, and armed him, to make a prey
of them when he pleases; he being in a much worse condition, who is
exposed to the arbitrary power of one man, who has the command of 100,000,
than he that is exposed to the arbitrary power of 100,000 single men; no
body being secure, that his will, who has such a command, is better than
that of other men, though his force be 100,000 times stronger. And
therefore, whatever form the common-wealth is under, the ruling power
ought to govern by declared and received laws, and not
by extemporary dictates and undetermined resolutions: for then mankind
will be in a far worse condition than in the state of nature, if they
shall have armed one, or a few men with the joint power of a multitude, to
force them to obey at pleasure the exorbitant and unlimited decrees of
their sudden thoughts, or unrestrained, and till that moment unknown
wills, without having any measures set down which may guide and justify
their actions: for all the power the government has, being only for the
good of the society, as it ought not to be arbitrary and at
pleasure, so it ought to be exercised by established and promulgated
laws; that both the people may know their duty, and be safe and
secure within the limits of the law; and the rulers too kept within their
bounds, and not be tempted, by the power they have in their hands, to
employ it to such purposes, and by such measures, as they would not have
known, and own not willingly.
Sect. 138. Thirdly, The supreme
power cannot take from any man any part of his property
without his own consent: for the preservation of property being the end of
government, and that for which men ente r 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 a ny man to own. Men therefore in society
having property, they have such a right to the goods, which by the
law of the community are their's, that no body hath a right to take their
substance or any part of it from them, without their o wn 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
legislati ve power of any common-wealth, can do what it will, and
dispose of the estates of the subject arbitrarily, or take any
part of them at pleasure. This is not much to be feared in governments
where the legislative consists, wholly or in part, in assemblies
which are variable, whose members, upon the dissolution of the assembly,
are subjects under the common laws of their country, equally with the
rest. But in governments, where the legislative is in one
lasting assembly alw ays in being, or in one man, as in absolute
monarchies, there is danger still, that they will think themselves to have
a distinct interest from the rest of the community; and so will be apt to
increase their own riches and power, by taking what they think fit from
the people: for a man's property is not at all secure, tho' there
be good and equitable laws to set the bounds of it between him and his
fellow subjects, if he who commands those subjects have power to take from
any private man, what part he pleases of his property, and use
and dispose of it as he thinks good.
Sect. 139. But government, into
whatsoever hands it is put, being, as I have before shewed, intrusted with
this condition, and for this end, that men might have and secure
their properties; the prince, or senate, however it may have
power to make laws, for the regulating of property between the
subjects one amongst another, yet can never have a power to take to
themselves the whole, or any part of the subjects property,
without their own consent: for this would be in effect to leave them
no property at all. And to let us see, that even absolute
power, where it is necessary, is not arbitrary by being
absolute, but is still limited by that reason, and confine d to those
ends, which required it in some cases to be absolute, we need look no
farther than the common practice of martial discipline: for the
preservation of the army, and in it of the whole common-wealth, requires
an absolute obedience to the command of every superior officer,
and it is justly death to disobey or dispute the most dangerous or
unreasonable of them; but yet we see, that neither the serjeant, that
could command a soldier to march up to the mouth of a cannon, or stand in
a breach , where he is almost sure to perish, can command that soldier to
give him one penny of his money; nor the general, that can condemn him to
death for deserting his post, or for not obeying the most desperate
orders, can yet, with all his absolute power of life and death,
dispose of one farthing of that soldier's estate, or seize one jot of his
goods; whom yet he can command any thing, and hang for the least
disobedience; because such a blind obedience is necessary to that end, for
which the comman der has his power, viz. the preservation of the rest;
but the disposing of his goods has nothing to do with it.
Sect. 140. It is true, governments cannot be
supported without great charge, and it is fit every one who enjoys his
share of the protection, should pay out of his estate his proportion for
the maintenance of it. But still it must be with his own consent, i.e.
the consent of the majority, giving it either by themselves, or their
representatives chosen by them: for if any one shall claim a power to
lay and levy taxes on the people, by his own authority, and
without such consent of the people, he thereby invades the fundamental
law of property, and subverts the end of government: for what
property have I in that, which another may by right take, when he pleases,
to himself?
Sect. 141. Fourthly, The
legislative cannot transfer the power of making laws to any other
hands: for it being but a delegated power from the people, they who have
it cannot pass it over to others. The people alone can appoint the form
of the common-wealth, which is by constituting the legislative, and
appointing in whose hands that shall be. And when the people have said,
We will submit to rules, and be governed by laws made by such
men, and in such forms, no body else can say other men shall make
laws for them; nor can the people be bound by any laws,
but such as are enacted by those whom they have chosen, and authorized to
make laws for them. The power of the legislative,
being derived from the people by a positive voluntary grant and
institution, can be no other than what that positive grant conveyed, which
being only to make laws, and not to make legislators,
the legislative can ha ve no power to transfer their authority of
making laws, and place it in other hands.
Sect. 142. These are the bounds which
the trust, that is put in them by the society, and the law of God and
nature, have set to the legislative power of every common-wealth,
in all forms of government.
First, They are to govern by promulgated established
laws, not to be varied in particular cases, but to have one rule for
rich and poor, for the favourite at court, and the country man at
plough.
Secondly, These laws also ought to be designed for no
other end ultimately, but the good of the people.
Thirdly, They must not raise taxes on the property of
the people, without the consent of the people, given by themselves,
or their deputies. And this properly concerns only such governments where
the legislative is alw ays in being, or at least where the people
have not reserved any part of the legislative to deputies, to be from time
to time chosen by themselves.
Fourthly, The legislative neither must nor can
transfer the power of making laws to any body else, or place it any
where, but where the people have.
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Next: Chapter XII.
The text digitized by Dave Gowan.
John Locke's "Second Treatise of Government" was published in 1690. The complete unabridged text has been republished several times in edited
commentaries. This is based on the paperback book, "John Locke Second Treatise of Government", Edited, with an Introduction, By C.B. McPherson, Hackett Publishing Company, Indianapolis and Cambridge, 1980. None of the McPherson edition is included in the Etext; only the original words contained in the 1690 Locke text is included. The 1690 edition text is free of copyright.
This text is in the PUBLIC DOMAIN, posted to Wiretap 1 Jul 94.
©Copyright, 2000, Mike Rosenberg
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