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Popular Basis of Political Authority
CHAPTER 2|Document 1
John Locke, Second Treatise, §§ 4--15, 54, 119--22, 163
16894. To understand Political Power right, and derive it from its Original, we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.
A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another: there being nothing more evident, than that Creatures of the same species and rank promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another without Subordination or Subjection, unless the Lord and Master of them all, should by any manifest Declaration of his Will set one above another, and confer on him by an evident and clear appointment an undoubted Right to Dominion and Sovereignty.
5. This equality of Men by Nature, the Judicious Hooker looks upon as so evident in it self, and beyond all question, that he makes it the Foundation of that Obligation to mutual Love amongst Men, on which he Builds the Duties they owe one another, and from whence he derives the great Maxims of Justice and Charity. His words are;
The like natural inducement, hath brought Men to know that it is no less their Duty, to Love others than themselves, for seeing those things which are equal, must needs all have one measure; If I cannot but wish to receive good, even as much at every Man's hands, as any Man can wish unto his own Soul, how should I look to have any part of my desire herein satisfied, unless my self be careful to satisfie the like desire, which is undoubtedly in other Men, being of one and the same nature? to have any thing offered them repugnant to this desire, must needs in all respects grieve them as much as me, so that if I do harm, I must look to suffer, there being no reason that others should shew greater measure of love to me, than they have by me, shewed unto them: my desire therefore to be lov'd of my equals in nature, as much as possible may be, imposeth upon me a natural Duty of bearing to themward, fully the like affection; From which relation of equality between our selves and them, that are as our selves, what several Rules and Canons, natural reason hath drawn for direction of Life, no Man is ignorant. Eccl. Pol. Lib. 1.
6. But though this be a State of Liberty, yet it is not a State of Licence, though Man in that State have an uncontroleable Liberty, to dispose of his Person or Possessions, yet he has not Liberty to destroy himself, or so much as any Creature in his Possession, but where some nobler use, than its bare Preservation calls for it. The State of Nature has a Law of Nature to govern it, which obliges every one: And Reason, which is that Law, teaches all Mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his Life, Health, Liberty, or Possessions. For Men being all the Workmanship of one Omnipotent, and infinitely wise Maker; All the Servants of one Sovereign Master, sent into the World by his order and about his business, they are his Property, whose Workmanship they are, made to last during his, not one anothers Pleasure. And being furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses, as the inferior ranks of Creatures are for ours. Every one as he is bound to preserve himself, and not to quit his Station wilfully; so by the like reason when his own Preservation comes not in competition, ought he, as much as he can, to preserve the rest of Mankind, and may not unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, Liberty, Health, Limb or Goods of another.
7. And that all Men may be restrained from invading others Rights, and from doing hurt to one another, and the Law of Nature be observed, which willeth the Peace and Preservation of all Mankind, the Execution of the Law of Nature is in that State, put into every Mans hands, whereby everyone has a right to punish the transgressors of that Law to such a Degree, as may hinder its Violation. For the Law of Nature would, as all other Laws that concern Men in this World, be in vain, if there were no body that in the State of Nature, had a Power to Execute that Law, and thereby preserve the innocent and restrain offenders, and if any one in the State of Nature may punish another, for any evil he has done, every one may do so. For in that State of perfect Equality, where naturally there is no superiority or jurisdiction of one, over another, what any may do in Prosecution of that Law, every one must needs have a Right to do.
8. And thus in the State of Nature, one Man comes by a Power over another; but yet no Absolute or Arbitrary Power, to use a Criminal when he has got him in his hands, according to the passionate heats, or boundless extravagancy of his own Will, but only to retribute to him, so far as calm reason and conscience dictates, what is proportionate to his Transgression, which is so much as may serve for Reparation and Restraint. For these two are the only reasons, why one Man may lawfully do harm to another, which is that we call punishment. In transgressing the Law of Nature, the Offender declares himself to live by another Rule, than that of reason and common Equity, which is that measure God has set to the actions of Men, for their mutual security: and so he becomes dangerous to Mankind, the tye, which is to secure them from injury and violence, being slighted and broken by him. Which being a trespass against the whole Species, and the Peace and Safety of it, provided for by the Law of Nature, every man upon this score, by the Right he hath to preserve Mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one, who hath transgressed that Law, as may make him repent the doing of it, and thereby deter him, and by his Example others, from doing the like mischief. And in this case, and upon this ground, every Man hath a Right to punish the Offender, and be Executioner of the Law of Nature.
9. I doubt not but this will seem a very strange Doctrine to some Men: but before they condemn it, I desire them to resolve me, by what Right any Prince or State can put to death, or punish an Alien, for any Crime he commits in their Country. 'Tis certain their Laws by vertue of any Sanction they receive from the promulgated Will of the Legislative, reach not a Stranger. They speak not to him, nor if they did, is he bound to hearken to them. The Legislative Authority, by which they are in Force over the Subjects of that Common-wealth, hath no Power over him. Those who have the Supream Power of making Laws in England, France or Holland, are to an Indian, but like the rest of the World, Men without Authority: And therefore if by the Law of Nature, every Man hath not a Power to punish Offences against it, as he soberly judges the Case to require, I see not how the Magistrates of any Community, can punish an Alien of another Country, since in reference to him, they can have no more Power, than what every Man naturally may have over another.
10. Besides the Crime which consists in violating the Law, and varying from the right Rule of Reason, whereby a Man so far becomes degenerate, and declares himself to quit the Principles of Human Nature, and to be a noxious Creature, there is commonly injury done to some Person or other, and some other Man receives damage by his Transgression, in which Case he who hath received any damage, has besides the right of punishment common to him with other Men, a particular Right to seek Reparation from him that has done it. And any other Person who finds it just, may also joyn with him that is injur'd, and assist him in recovering from the Offender, so much as may make satisfaction for the harm he has suffer'd.
11. From these two distinct Rights, the one of Punishing the Crime for restraint, and preventing the like Offence, which right of punishing is in every body; 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 publick good demands not the execution of the Law, remit the punishment of Criminal Offences by his own Authority, but yet cannot remit the satisfaction due to any private Man, for the damage he has received. That, he who has suffered the damage has a Right to demand in his own name, and he alone can remit: The damnified Person has this Power of appropriating to himself, the Goods or Service of the Offender, by Right of Self-preservation, as every Man has a Power to punish the Crime, to prevent its being committed again, by the Right he has of Preserving all Mankind, and doing all reasonable things he can in order to that end: and thus it is, that every Man in the State of Nature, has a Power to kill a Murderer, both to deter others from doing the like Injury, which no Reparation can compensate, by the Example of the punishment that attends it from every body, and also to secure Men from the attempts of a Criminal, who having renounced Reason, the common Rule and Measure, God hath given to Mankind, hath by the unjust Violence and Slaughter he hath committed upon one, declared War against all Mankind, and therefore may be destroyed as a Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor Security: And upon this is grounded the great Law of Nature, Who so sheddeth Mans Blood, by Man shall his Blood be shed. And Cain was so fully convinced, that every one had a Right to destroy such a Criminal, that after the Murther of his Brother, he cries out, Every one that findeth me, shall slay me; so plain was it writ in the Hearts of all Mankind.
12. By the same reason, may a Man in the State of Nature punish the lesser breaches of that Law. It will perhaps be demanded, with death? I answer, Each Transgression may be punished to that degree, and with so much Severity as will suffice to make it an ill bargain to the Offender, give him cause to repent, and terrifie others from doing the like. Every Offence that can be committed in the State of Nature, may in the State of Nature be also punished, equally, and as far forth as it may, in a Common-wealth; for though it would be besides my present purpose, to enter here into the particulars of the Law of Nature, or its measures of punishment; yet, it is certain there is such a Law, and that too, as intelligible and plain to a rational Creature, and a Studier of that Law, as the positive Laws of Common-wealths, nay possibly plainer; As much as Reason is easier to be understood, than the Phansies and intricate Contrivances of Men, following contrary and hidden interests put into Words; For so truly are a great part of the Municipal Laws of Countries, which are only so far right, as they are founded on the Law of Nature, by which they are to be regulated and interpreted.
13. To this strange Doctrine, viz. That in the State of Nature, every one has the Executive Power of the Law of Nature, I doubt not but it will be objected, That it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men partial to themselves and their Friends. And on the other side, that Ill Nature, Passion and Revenge will carry them too far in punishing others. And hence nothing but Confusion and Disorder will follow, and that therefore God hath certainly appointed Government to restrain the partiality and violence of Men. I easily grant, that Civil Government is the proper Remedy for the Inconveniences of the State of Nature, which must certainly be Great, where Men may be Judges in their own Case, since 'tis easily to be imagined, that he who was so unjust as to do his Brother an Injury, will scarce be so just as to condemn himself for it: But I shall desire those who make this Objection, to remember that Absolute Monarchs are but Men, and if Government is to be the Remedy of those Evils, which necessarily follow from Mens being Judges in their own Cases, and the State of Nature is therefore not to be endured, I desire to know what kind of Government that is, and how much better it is than the State of Nature, where one Man commanding a multitude, has the Liberty to be Judge in his own Case, and may do to all his Subjects whatever he pleases, without the least liberty to any one to question or controle those who Execute his Pleasure? And in whatsoever he doth, whether led by Reason, Mistake or Passion, must be submitted to? Much better it is in the State of Nature wherein Men are not bound to submit to the unjust will of another: And if he that judges, judges amiss in his own, or any other Case, he is answerable for it to the rest of Mankind.
14. 'Tis often asked as a mighty Objection, Where are, or ever were, there any Men in such a State of Nature? To which it may suffice as an answer at present; That since all Princes and Rulers of Independent Governments all through the World, are in a State of Nature, 'tis plain the World never was, nor ever will be, without Numbers of Men in that State. I have named all Governors of Independent Communities, whether they are, or are not, in League with others: For 'tis not every Compact that puts an end to the State of Nature between Men, but only this one of agreeing together mutually to enter into one Community, and make one Body Politick; 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, &c. between the two Men in the Desert Island, mentioned by Garcilasso De la vega, in his History of Peru, or between a Swiss and an Indian, in the Woods of America, are binding to them, though they are perfectly in a State of Nature, in reference to one another. For Truth and keeping of Faith belongs to Men, as Men, and not as Members of Society.
15. To those that say, There were never any Men in the State of Nature; I will not only oppose the Authority of the Judicious Hooker, Eccl. Pol. Lib. I. Sect. 10. where he says, The Laws which have been hitherto mentioned, i.e. the Laws of Nature, do bind Men, although they have never any settled fellowship, never any Solemn Agreement amongst themselves what to do or not to do, but for as much as we are not by our selves sufficient to furnish our selves with competent store of things, needful for such a Life, as our Nature doth desire, a Life, fit for the Dignity of Man; therefore to supply those Defects and Imperfections which are in us, as living singly and solely by our selves, we are naturally induced to seek Communion and Fellowship with others, this was the Cause of Mens uniting themselves, at first in Politick Societies. But I moreover affirm, That all Men are naturally in that State, and remain so, till by their own Consents they make themselves Members of some Politick Society; And I doubt not in the Sequel of this Discourse, to make it very clear.
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54. Though I have said above, Chap. II, That all Men by Nature are equal, I cannot be supposed to understand all sorts of Equality: Age or Virtue may give Men a just Precedency: Excellency of Parts and Merit may place others above the Common Level: Birth may subject some, and Alliance or Benefits others, to pay an Observance to those to whom Nature, Gratitude or other Respects may have made it due; and yet all this consists with the Equality, which all Men are in, in respect of Jurisdiction or Dominion one over another, which was the Equality I there spoke of, as proper to the Business in hand, being that equal Right that every Man hath, to his Natural Freedom, without being subjected to the Will or Authority of any other Man.
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119. Every Man being, as has been shewed, naturally free, and nothing being able to put him into subjection to any Earthly Power, but only his own Consent; it is to be considered, what shall be understood to be a sufficient Declaration of a Mans Consent, to make him subject to the Laws of any Government. There is a common distinction of an express and a tacit consent, which will concern our present Case. No body doubts but an express Consent, of any Man, entring into any Society, makes him a perfect Member of that Society, a Subject of that Government. The difficulty is, what ought to be look'd upon as a tacit Consent, and how far it binds, i.e. how far any one shall be looked on to have consented, and thereby submitted to any Government, where he has made no Expressions of it at all. And to this I say, that every Man, that hath any Possession, or Enjoyment, of any part of the Dominions of any Government, doth thereby give his tacit Consent, and is as far forth obliged to Obedience to the Laws of that Government, during such Enjoyment, as any one under it; whether this his Possession be of Land, to him and his Heirs for ever, or a Lodging only for a Week; or whether it be barely travelling freely on the Highway; and in Effect, it reaches as far as the very being of any one within the Territories of that Government.
120. To understand this the better, it is fit to consider, that every Man, when he, at first, incorporates himself into any Commonwealth, he, by his uniting himself thereunto, annexed also, and submits to the Community those Possessions, which he has, or shall acquire, that do not already belong to any other Government. For it would be a direct Contradiction, for any one, to enter into Society with others for the securing and regulating of Property: And yet to suppose his Land, whose Property is to be regulated by the Laws of the Society, should be exempt from the Jurisdiction of that Government, to which he himself the Proprietor of the Land, is a Subject. By the same Act therefore, whereby any one unites his person, which was before free, to any Commonwealth; by the same he unites his Possessions, which were before free, to it also; and they become, both of them, Person and Possession, subject to the Government and Dominion of that Commonwealth, as long as it hath a being. Whoever therefore, from thenceforth, by Inheritance, Purchase, Permission, or otherways enjoys any part of the Land, so annext to, and under the Government of that Commonwealth, must take it with the Condition it is under; that is, of submitting to the Government of the Commonwealth, under whose Jurisdiction it is, as far forth, as any Subject of it.
121. But since the Government has a direct Jurisdiction only over the Land, and reaches the Possessor of it, (before he has actually incorporated himself in the Society) only as he dwells upon, and enjoys that: The Obligation any one is under, by Virtue of such Enjoyment, to submit to the Government, begins and ends with the Enjoyment; so that whenever the Owner, who has given nothing but such a tacit Consent to the Government, will, by Donation, Sale, or otherwise, quit the said Possession, he is at liberty to go and incorporate himself into any other Commonwealth, or to agree with others to begin a new one, in vacuis locis, in any part of the World, they can find free and unpossessed: Whereas he, that has once, by actual Agreement, and any express Declaration, given his Consent to be of any Commonweal, is perpetually and indispensably obliged to be and remain unalterably a Subject to it, and can never be again in the liberty of the state of Nature; unless by any Calamity, the Government, he was under, comes to be dissolved; or else by some publick Act cuts him off from being any longer a Member of it.
122. But submitting to the Laws of any Country, living quietly, and enjoying Priviledges and Protection under them, makes not a Man a Member of that Society: This is only a local Protection and Homage due to, and from all those, who, not being in a state of War, come within the Territories belonging to any Government, to all parts whereof the force of its Law extends. But this no more makes a Man a Member of that Society, a perpetual Subject of that Commonwealth, than it would make a Man a Subject to another in whose Family he found it convenient to abide for some time; though, whilst he continued in it, he were obliged to comply with the Laws, and submit to the Government he found there. And thus we see, that Foreigners, by living all their Lives under another Government, and enjoying the Priviledges and Protection of it, though they are bound, even in Conscience, to submit to its Administration, as far forth as any Denison; yet do not thereby come to be Subjects or Members of that Commonwealth. Nothing can make any Man so, but his actually entering into it by positive Engagement, and express Promise and Compact. This is that, which I think, concerning the beginning of Political Societies, and that Consent which makes any one a Member of any Commonwealth.
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163. And therefore they have a very wrong Notion of Government, who say, that the People have incroach'd upon the Prerogative, when they have got any part of it to be defined by positive Laws. For in so doing, they have not pulled from the Prince any thing, that of right belong'd to him, but only declared, that that Power which they indefinitely left in his, or his Ancestors, hands, to be exercised for their good, was not a thing, which they intended him, when he used it otherwise. For the end of government being the good of the Community, whatsoever alterations are made in it, tending to that end, cannot be an incroachment upon any body: since no body in Government can have a right tending to any other end. And those only are incroachments which prejudice or hinder the publick 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 entred into a Community for their mutual good; they are not such as have set Rulers over themselves, to guard, and promote that good; but are to be looked on as an Herd of inferiour 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.
The Founders' Constitution
Volume 1, Chapter 2, Document 1
http://press-pubs.uchicago.edu/founders/documents/v1ch2s1.html
The University of Chicago Press
Locke, John. Two Treatises of Government. Edited by Peter Laslett. New York: Mentor Books, New American Library, 1965. See also: Montuori
