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Constitutional Government

CHAPTER 17|Document 5

John Locke, Second Treatise, §§ 89--94, 134--42, 212

89. Where-ever therefore any number of Men are so united into one Society, as to quit every one his Executive Power of the Law of Nature, and to resign it to the publick, there and there only is a Political, or Civil Society. And this is done where-ever any number of Men, in the state of Nature, enter into Society to make one People, one Body Politick under one Supreme Government, or else when any one joyns himself to, and incorporates with any Government already made. For hereby he authorizes the Society, or which is all one, the Legislative thereof to make Laws for him as the publick good of the Society shall require; to the Execution whereof, his own assistance (as to his own Decrees) is due. And this puts Men out of a State of Nature into that of a Commonwealth, by setting up a Judge on Earth, with Authority to determine all the Controversies, and redress the Injuries, that may happen to any Member of the Commonwealth; which Judge is the Legislative, or Magistrates appointed by it. And where-ever there are any number of Men, however associated, that have no such decisive power to appeal to, there they are still in the state of Nature.

90. Hence it is evident, that Absolute Monarchy, which by some Men is counted the only Government in the World, is indeed inconsistent with Civil Society, and so can be no Form of Civil Government at all. For the end of Civil Society, being to avoid, and remedy those inconveniencies of the State of Nature, which necessarily follow from every Man's being Judge in his own Case, by setting up a known Authority, to which every one of that Society may Appeal upon any Injury received, or Controversie that may arise, and which every one of the Society ought to obey; where-ever any persons are, who have not such an Authority to Appeal to, for the decision of any difference between them, there those persons are still in the state of Nature. And so is every Absolute Prince in respect of those who are under his Dominion.

91. For he being suppos'd to have all, both Legislative and Executive Power in himself alone, there is no Judge to be found, no Appeal lies open to any one, who may fairly, and indifferently, and with Authority decide, and from whose decision relief and redress may be expected of any Injury or Inconveniency, that may be suffered from the Prince or by his Order: So that such a Man, however intitled, Czar, or Grand Signior, or how you please, is as much in the state of Nature, with all under his Dominion, as he is with the rest of Mankind. For where-ever any two Men are, who have no standing Rule, and common Judge to Appeal to on Earth for the determination of Controversies of Right betwixt them, there they are still in the state of Nature, and under all the inconveniencies of it,1 with only this woful difference to the Subject, or rather Slave of an Absolute Prince: That whereas, in the ordinary State of Nature, he has a liberty to judge of his Right, and according to the best of his Power, to maintain it; now whenever his Property is invaded by the Will and Order of his Monarch, he has not only no Appeal, as those in Society ought to have, but as if he were degraded from the common state of Rational Creatures, is denied a liberty to judge of, or to defend his Right, and so is exposed to all the Misery and Inconveniencies that a Man can fear from one, who being in the unrestrained state of Nature, is yet corrupted with Flattery, and armed with Power.

92. For he that thinks absolute Power purifies Mens Bloods, and corrects the baseness of Humane Nature, need read but the History of this, or any other Age to be convinced of the contrary. He that would have been insolent and injurious in the Woods of America, would not probably be much better in a Throne; where perhaps Learning and Religion shall be found out to justifie all, that he shall do to his Subjects, and the Sword presently silence all those that dare question it. For what the Protection of Absolute Monarchy is, what kind of Fathers of their Countries it makes Princes to be, and to what a degree of Happiness and Security it carries Civil Society where this sort of Government is grown to perfection, he that will look into the late Relation of Ceylon, may easily see.

93. In Absolute Monarchies indeed, as well as other Governments of the World, the Subjects have an Appeal to the Law, and Judges to decide any Controversies, and restrain any Violence that may happen betwixt the Subjects themselves, one amongst another. This every one thinks necessary, and believes he deserves to be thought a declared Enemy to Society and Mankind, who should go about to take it away. But whether this be from a true Love of Mankind and Society, and such a Charity as we owe all one to another, there is reason to doubt. For this is no more, than what every Man who loves his own Power, Profit, or Greatness, may, and naturally must do, keep those Animals from hurting or destroying one another who labour and drudge only for his Pleasure and Advantage, and so are taken care of, not out of any Love the Master has for them, but Love of himself, and the Profit they bring him. For if it be asked, what Security, what Fence is there in such a State, against the Violence and Oppression of this Absolute Ruler? The very Question can scarce be born. They are ready to tell you, that it deserves Death only to ask after Safety. Betwist Subject and Subject, they will grant, there must be Measures, Laws, and Judges, for their mutual Peace and Security: But as for the Ruler, he ought to be Absolute, and is above all such Circumstances: because he has Power to do more hurt and wrong, 'tis right when he does it. To ask how you may be guarded from harm, or injury on that side where the strongest hand is to do it, is presently the Voice of Faction and Rebellion. As if when Men quitting the State of Nature entered into Society, they agreed that all of them but one, should be under the restraint of Laws, but that he should still retain all the Liberty of the State of Nature, increased with Power, and made licentious by Impunity. This is to think that Men are so foolish that they take care to avoid what Mischiefs may be done them by Pole-Cats, or Foxes, but are content, nay think it Safety, to be devoured by Lions.

94. But whatever Flatterers may talk to amuze Peoples Understandings, it hinders not Men, from feeling: and when they perceive, that any Man, in what Station soever, is out of the Bounds of the Civil Society which they are of; and that they have no Appeal on Earth against any harm they may receive from him, they are apt to think themselves in the state of Nature, in respect of him, whom they find to be so; and to take care as soon as they can, to have that Safety and Security in Civil Society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first, (as shall be shewed more at large hereafter in the following part of this Discourse) some one good and excellent Man, having got a Preheminency amongst the rest, had this Deference paid to his Goodness and Vertue, as to a kind of Natural Authority, that the chief Rule, with Arbitration of their differences, by a tacit Consent devolved into his hands, without any other caution, but the assurance they had of his Uprightness and Wisdom: yet when time, giving Authority, and (as some Men would perswade us) Sacredness to Customs, which the negligent, and unforeseeing Innocence of the first Ages began, had brought in Successors of another Stamp, the People finding their Properties not secure under the Government, as then it was, (whereas Government has no other end but the preservation of Property) could never be safe nor at rest, nor think themselves in Civil Society, till the Legislature was placed in collective Bodies of Men, call them Senate, Parliament, or what you please.2 By which means every single person became subject, equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established: nor could any one, by his own Authority, avoid the force of the Law, when once made, nor by any pretence of Superiority, plead exemption, thereby to License his own, or the Miscarriages of any of his Dependants. No Man in Civil Society can be exempted from the Laws of it. For if any Man may do, what he thinks fit, and there be no Appeal on Earth, for Redress or Security against any harm he shall do; I ask, Whether he be not perfectly still in the State of Nature, and so can be no part or Member of that Civil Society: unless any one will say, the State of Nature and Civil Society are one and the same thing, which I have never yet found any one so great a Patron of Anarchy as to affirm.

Chap. XI. Of the Extent of the Legislative Power.

134. The great end of Mens entring into Society, being the enjoyment of their Properties in Peace and Safety, and the great instrument and means of that being the Laws establish'd 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 it self, is the preservation of the Society, and (as far as will consist with the publick good) of every person in it. This Legislative is not only the supream power of the Commonwealth, 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 publick 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,3 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 Supream Power, and is directed by those Laws which it enacts: nor can any Oaths to any Foreign Power whatsoever, or any Domestick 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 Supream.

135. Though the Legislative, whether placed in one or more, whether it be always in being, or only by intervals, tho' it be the Supream 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 joynt 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 enter'd 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 doth, or can give up to the Common-wealth, and by it to the Legislative Power, so that the Legislative can have no more than this. Their Power in the utmost Bounds of it, is limited to the publick 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.4 The Obligations of the Law of Nature, cease not in Society but only in many Cases are drawn closer, and have by Humane 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 Mens Actions, must, as well as their own and other Mens 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 Humane Sanction can be good, or valid against it.

Laws therefore humane, of what kind soever, are available by consent. Ibid.

136. Secondly, The Legislative, or Supream Authority, cannot assume to its self a power to Rule by extemporary Arbitrary Decrees,5 but is bound to dispense Justice, and decide the Rights of the Subject by promulgated standing Laws, and known Authoris'd 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 establish'd 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 Inconveniencies which disorder Mens 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 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 govern'd 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 to any one, or more, an absolute Arbitrary Power over their Persons and Estates, and put a force into the Magistrates 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 100000. than he that is expos'd to the Arbitrary Power of 100000. 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 100000. 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 joynt power of a Multitude, to force them to obey at pleasure the exorbitant and unlimited Decrees of their sudden thoughts, or unrestrain'd, and till that moment unknown Wills without having any measures set down which may guide and justifie 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 to be tempted, by the Power they have in their hands, to imploy it to such purposes, and by such measures, as they would not have known, and own not willingly.

138. Thirdly, The Supream Power cannot take from any Man any part of his Property without his own consent. For the preservation of Property being the end of Government, and that for which Men enter into Society, it necessarily supposes and requires, that the People should have Property, without which they must be suppos'd to lose that by entring 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 no Body hath a right to take their substance, or any part of it from them, without their own consent; without this, they have no Property at all. For I have truly no Property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the Supream 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 fear'd 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 whatsoever hands it is put, being as I have before shew'd, intrusted with this condition, and for this end, that Men might have and secure their Properties, the Prince or Senate, however it may have power to make Laws for the regulating of Property between the Subjects one amongst another, yet can never have a Power to take to themselves the whole or any part of the Subjects Property, without their own consent. For this would be in effect to leave them no Property at all. And to let us see, that even absolute Power, where it is necessary, is not Arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some Cases to be absolute, we need look no farther than the common practice of Martial Discipline. For the Preservation of the Army, and in it of the whole Commonwealth, requires an absolute Obedience to the Command of every Superiour 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 Souldier 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 Soldiers Estate, or seize one jot of his Goods; whom yet he can command any thing, and hang for the least Disobedience. Because such a blind Obedience is necessary to that end for which the Commander has his Power, viz. the preservation of the rest; but the disposing of his Goods has nothing to do with it.

140. 'Tis true, Governments cannot be supported without great Charge, and 'tis fit every one who enjoys his share of the Protection, should pay out of his Estate his proportion for the maintenance of it. But still it must be with his own Consent, i.e. the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them. For if any one shall claim a Power to lay and levy Taxes on the People, by his own Authority, and without such consent of the People, he thereby invades the Fundamental Law of Property, and subverts the end of Government. For what property have I in that which another may by right take, when he pleases to himself?

141. Fourthly, The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others. The People alone can appoint the Form of the Commonwealth, which is by Constituting the Legislative, and appointing in whose hands that shall be. And when the People have said, We will submit to rules, and be govern'd 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 Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.

142. These are the Bounds which the trust that is put in them by 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 establish'd Laws, not to be varied in particular Cases, but to have one Rule for Rich and Poor, for the Favourite at Court, and the Country Man at Plough.

Secondly, These Laws also ought to be designed for no other end ultimately but the good of the People.

Thirdly, they must not raise Taxes on the Property of the People, without the Consent of the People, given by themselves, or their Deputies. And this properly concerns only such Governments where the Legislative is always in being, or at least where the People have not reserv'd 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.

. . . . .

212. Besides this over-turning from without, Governments are dissolved from within.

First, When the Legislative is altered. Civil Society being a State of Peace, amongst those who are of it, from whom the State of War is excluded by the Umpirage, which they have provided in their Legislative, for the ending all Differences, that may arise amongst any of them, 'tis 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 Connexion: And therefore when the Legislative is broken, or dissolved, Dissolution and Death follows. For the Essence and Union of the Society consisting in having one Will, the Legislative, when once established by the Majority, has the declaring, and as it were keeping of that Will. The Constitution of the Legislative is the first and fundamental Act of Society, whereby provision is made for the Continuation of their Union, under the Direction of Persons, and Bonds of Laws made by persons authorized thereunto, by the Consent and Appointment of the People, without which no one Man, or number of Men, amongst them, can have Authority of making Laws, that shall be binding to the rest. When any one, or more, shall take upon them to make Laws, whom the People have not appointed so to do, they make Laws without Authority, which the People are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new Legislative, as they think best, being in full liberty to resist the force of those, who without Authority would impose any thing upon them. Every one is at the disposure of his own Will, when those who had by the delegation of the Society, the declaring of the publick Will, are excluded from it, and others usurp the place who have no such Authority or Delegation.

1. 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 publick, and by yielding themselves subject thereunto, that unto whom they granted Authority to Rule and Govern, by them the Peace, Tranquility, 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 should 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 any Man should take upon him to be Lord or Judge over another. Hooker's Eccl. Pol. I. 1. Sect. 10.

2. At the first, when some certain kind of Regiment was once appointed, it may be that nothing was then farther thought upon for the manner of 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 Mens misery. This constrained them to come unto Laws wherein all Men might see their Duty beforehand, and know the Penalties of transgressing them. Hooker's Eccl. Pol. I. 1. Sect. 10.

3. The lawful Power of making Laws to Command whole Politick 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 meer Tyranny. Laws they are not therefore which publick Approbation hath not made so. Hooker's Eccl. Pol. I. 1. Sect. 10. Of this point therefore we are to note, that sith Men naturally have no full and perfect Power to Command whole Politick Multitudes of Men, therefore utterly without our Consent, we could in such sort be at no Mans 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 humane, of what kind soever, are available by consent. Ibid.

4. Two Foundations there are which bear up publick 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 Common-weal, the very Soul of a Politick Body, the parts whereof are by Law animated, held together, and set on work in such actions as the common good requireth. Laws politick, ordain'd 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. I. 1. Sect. 10.

5. Humane 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 Humane must be made according to the general Laws of Nature, and without contradiction to any positive Law of Scripture, otherwise they are ill made, Ibid. I. 3. Sect. 9.
        To constrain Men to any thing inconvenient doth seem unreasonable. Ibid. I. 1. Sect. 10.