 | Thomas Patrick Burke, Th.D.
Lecture 2: Freedom of Religion: John Locke (1632 - 1704)
Letter Concerning Toleration
During
the same year that parliament passed the Act of Toleration, the English
philosopher John Locke published, anonymously and in Latin, his Letter Concerning Toleration,
which he had written several years earlier. This document remains to
this day one of the most cogent statements of the reasons that justify
and demand freedom of religion.
Locke
presents two basic arguments. One is that religious coercion is
contrary to Christianity and true religion; the other is that it is
contrary to the nature of the state. It is contrary to the former
because Christianity and true religion can only be genuinely practised
by someone who believes in them personally, and personal belief cannot
be forced.
"Although
the magistrate's opinion in religion be sound, and the way that he
appoints be truly Evangelical, yet, if I be not thoroughly persuaded
thereof in my own mind, there will be no safety for me in following it.
No way whatsoever that I shall walk in against the dictates of my
conscience will ever bring me to the mansions of the blessed. I may
grow rich by an art that I take not delight in; I may be cured of some
disease by remedies that I have not faith in; but I cannot be saved by
a religion that I distrust and by a worship that I abhor. It is in vain
for an unbeliever to take up the outward show of another man's
profession. Faith only and inward sincerity are the things that procure
acceptance with God. The most likely and most approved remedy can have
no effect upon the patient, if his stomach reject it as soon as taken;
and you will in vain cram a medicine down a sick man's throat, which
his particular constitution will be sure to turn into poison. In a
word, whatsoever may be doubtful in religion, yet this at least is
certain, that no religion which I believe not to be true can be either
true or profitable unto me. In vain, therefore, do princes compel their
subjects to come into their Church communion, under pretence of saving
their souls. If they believe, they will come of their own accord, if
they believe not, their coming will nothing avail them. How great
soever, in fine, may be the pretence of good-will and charity, and
concern for the salvation of men's souls, men cannot be forced to be
saved whether they will or no. And therefore, when all is done, they
must be left to their own consciences."
In
the second place, Locke argues that coercion in religion is contrary to
the nature and function of the state. The "business of laws" is to
protect individuals and the nation against aggression. Religious
belief, however, causes no one harm. (Note the use of "civil rights" in
the following passage to mean the right not to be harmed. We will
return to this in a later lecture.)
"Further,
the magistrate ought not to forbid the preaching or professing of any
speculative opinions in any Church because they have no manner of
relation to the civil rights of the subjects. If a Roman Catholic
believe that to be really the body of Christ which another man calls
bread, he does no injury thereby to his neighbour. If a Jew do not
believe the New Testament to be the Word of God, he does not thereby
alter anything in men's civil rights. If a heathen doubt of both
Testaments, he is not therefore to be punished as a pernicious citizen.
The power of the magistrate and the estates of the people may be
equally secure whether any man believe these things or no. I readily
grant that these opinions are false and absurd. But the business of
laws is not to provide for the truth of opinions, but for the safety
and security of the commonwealth and of every particular man's goods
and person. And so it ought to be. For the truth certainly would do
well enough if she were once left to shift for herself. She seldom has
received and, I fear, never will receive much assistance from the power
of great men, to whom she is but rarely known and more rarely welcome.
She is not taught by laws, nor has she any need of force to procure her
entrance into the minds of men. Errors, indeed, prevail by the
assistance of foreign and borrowed succours. But if Truth makes not her
way into the understanding by her own light, she will be but the weaker
for any borrowed force violence can add to her."
Locke here rests his argument implicitly on the principle of no harm, of which we will hear more shortly.
Amongst
other things Locke's Letter provided the philosophical basis for George
Mason's proposed Article Sixteen of the Virginia Declaration of Rights
of 1776, which deals with religion. Mason's proposal states that "all
men should enjoy the fullest toleration in the exercise of religion."
Locke's Second Treatise of Government
In 1689 Locke also published his Two Treatises of Government,
a book he had evidently been working on for many years. The first
treatise is an argument against a book by the Tory writer Sir Robert
Filmer which traced the divine right of kings back to Adam, and need
not concern us here. But the second treatise had and still has a vast
influence. It was this work, perhaps more than any other single work,
that laid the conceptual foundations of the free society. When Thomas
Jefferson remarked that the political opinions of the American people
were best reflected in the writings of John Locke, it was undoubtedly
this work he had in mind. Some passages of The Declaration of Independence are almost lifted from it word for word.
The
overall structure of the book is an argument that government must be
"by consent of the people." The reason is that only a government
answerable to the people will effectively protect their human rights.
In roughly the first half of the book Locke develops the idea of these
rights.
In Chapter 1 Locke provides us with what has become the classic definition of the power of government or "political power."
"To
this purpose, I think it may not be amiss, to set down what I take to
be political power; that the power of a magistrate over a subject may
be distinguished from that of a father over his children, a master over
his servant, a husband over his wife, and a lord over his slave. All
which distinct powers happening sometimes together in the same man, if
he be considered under these different relations, it may help us to
distinguish these powers one from another, and show the difference
betwixt a ruler of a commonwealth, a father of a family, and a captain
of a galley.
Political
power, then, I take to be a right of making laws with penalties of
death, and consequently all less penalties, for the regulating and
preserving of property, and of employing the force of the community, in
the execution of such laws, and in the defence of the common-wealth
from foreign injury; and all this only for the public good."
Let us look at this more closely. The power of government, first of all, is a right, that is, a moral power, a claim, supported by the moral law, to obedience. Second, it is a right to make laws.
He will have more to say later about what a law is and what it should
be. Amongst other things a law is a rule that carries a penalty for
infringement, and in the third place government has a right to make
laws that carry the penalty of death. For Locke this is the
defining power of government. It is what distinguishes government from
all the other kinds of authority that exist in human society. He says
nothing about when or whether the use of this penalty is wise, but he
says the power to inflict the death penalty is what makes a government
to be a government. By implication this means that if this power is
taken away, as the European Union has taken it away, a true and proper
government no longer exists.
In
the fourth place Locke states that the laws made by government can be
rightly made only if they serve certain very definite and very limited
purposes. The fundamental purpose is the protection of "property." By
this term Locke will later explain he means much more than we might at
first assume. The first item it includes is human life, for, as he will
argue, each person "has a property in his own person." Every person
owns himself; that is, no one is born a slave by nature. Slavery is an
artificial condition imposed by some men on others. Laws with their
penalties are justified when they have the purpose of protecting
people's ownership of themselves and their right to life.
Having
the right to protect people's ownership of themselves and their right
to life means that government has the right to defend the society
against aggression by other societies. Finally, government has the
right to make laws with penalties only for the purpose of protecting
the public good, the good of the society as a whole. Not, therefore, in
order to enrich themselves or their friends.
The
concept of the "public good" or the "common good" is much disputed.
Philosophers distinguish two very different conceptions of it, one
"positive," the other "negative," terms which are descriptive, not
evaluative. A positive conception of it is where the true good of the
public is identified with the presence of some feature or state of affairs, a negative one with the absence
of a feature. In Islam, for example, the public good is identified with
the acceptance and fulfillment of Islam. In socialism, the public good
is identified with the socialist state; in egalitarianism with
equality. These are all considered positive conceptions of the public
good. Locke's conception of it, by contrast, consists, as we shall see,
in the absence of something, namely of harm, and so is classified as
negative.
The
second chapter is one of the most important in the book, because here
Locke explains some of his fundamental conceptions. The title of the
chapter is: "Of the State of Nature." By this he means the condition of
a society without government. His aim in the book is to explain the
role that government plays, the purpose for which it exists and which
justifies the power it possesses. So he begins by asking how things
would be if there were no government. This is initially a hypothetical
question: the argument does not depend on a claim that there once was a
time when there were no governments, though later Locke will offer some
examples of that. But he is talking about the logic of the concept.
If
governments did not exist, people would be free, because not subject to
a human authority or human laws. They would have liberty to do whatever
they wished. They would also be equal, for the same reason, that no one
has authority over another. But, he continues, even if there were no
government ruling a society, and so no man-made laws, that does not
mean its members would not be subject to any law, for they would be
bound by the moral law. What does the moral law state? That no one is
to cause harm to another.
"But
though this be a state of liberty, yet it is not a state of licence:
though man in that state have an uncontrollable liberty to dispose of
his person or possessions, yet he has not liberty to destroy himself,
or so much as any creature in his possession, but where some nobler use
than its bare preservation calls for it. The state of nature has a law
of nature to govern it, which obliges every one: and reason, which is
that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions:"
(Note
that in passing Locke provides us with a rule for the ethical treatment
of animals: we must not destroy them unless "some nobler use" justifies
that. Eating them is such a use. He is not here proposing a new rule,
but merely an explanation of the rule already commonly accepted in
civilized society.)
Where
does this principle of "no harm" come from? What is its basis? It is a
consequence of the fact that we are all created by God and share the
same human nature, so that no one of us has by nature more rights than
another.
"...for
men being all the workmanship of one omnipotent, and infinitely wise
maker; all the servants of one sovereign master, sent into the world by
his order, and about his business; they are his property, whose
workmanship they are, made to last during his, not one another's
pleasure: and being furnished with like faculties, sharing all in one
community of nature, there cannot be supposed any such subordination
among us, that may authorize us to destroy one another, as if we were
made for one another's uses, as the inferior ranks of creatures are for
our's. 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, the liberty, health, limb, or goods of
another."
This
principle of "no harm" is the spine or backbone on which Locke builds
the entire structure of his subsequent argument about the role of
government in society. People have a right not to be harmed, and the
task of government is to protect that right, which will only happen
when the government is answerable to the people.
Thomas Hobbes (1588-1679)
It
is interesting to compare Hobbes with this. Like Locke, he has been
immensely influential, but in a different direction. He also begins his
great work Leviathan with an analysis of the "state of
nature," and he also means by this the condition of society without
government.Like Locke, he believes the "natural law" can be discovered
by reason. But there the similarity stops. For Hobbes, the natural law
is not a rule of morality but of self-preservation, as we find among
animals: to do whatever is necessary to preserve one's own life.
"A
law of nature, lex naturalis, is a precept, or general rule, found out
by reason, by which a man is forbidden to do that which is destructive
of his life, or taketh away the means of preserving the same, and to
omit that by which he thinketh it may be best preserved."
This includes naked and unprovoked aggression:
"...there
is no way for any man to secure himself so reasonable as anticipation;
that is, by force, or wiles, to master the persons of all men he can so
long till he see no other power great enough to endanger him: and this
is no more than his own conservation requireth, and is generally
allowed."
The natural result of this, he admits, is a constant war of all against all.
"...they
are in that condition which is called war; and such a war as is of
every man against every man. For war consisteth not in battle only, or
the act of fighting, but in a tract of time, wherein the will to
contend by battle is sufficiently known: and therefore the notion of
time is to be considered in the nature of war, as it is in the nature
of weather. For as the nature of foul weather lieth not in a shower or
two of rain, but in an inclination thereto of many days together: so
the nature of war consisteth not in actual fighting, but in the known
disposition thereto during all the time there is no assurance to the
contrary. All other time is peace."
So long as this natural state of war exists among human beings, they will make no progress.
"In
such condition there is no place for industry, because the fruit
thereof is uncertain: and consequently no culture of the earth; no
navigation, nor use of the commodities that may be imported by sea; no
commodious building; no instruments of moving and removing such things
as require much force; no knowledge of the face of the earth; no
account of time; no arts; no letters; no society; and which is worst of
all, continual fear, and danger of violent death; and the life of man,
solitary, poor, nasty, brutish, and short."
The
only way this can be brought to an end is if some individual acquires
sufficient power "to keep them all in awe." This is Hobbes's case for
the necessity of government. It is a purely utilitarian argument. It
does not make any appeal to moral principles, because for Hobbes moral
principles arise only after government and law take hold.
"To
this war of every man against every man, this also is consequent; that
nothing can be unjust. The notions of right and wrong, justice and
injustice, have there no place. Where there is no common power, there
is no law; where no law, no injustice. Force and fraud are in war the
two cardinal virtues. Justice and injustice are none of the faculties
neither of the body nor mind. If they were, they might be in a man that
were alone in the world, as well as his senses and passions. They are
qualities that relate to men in society, not in solitude. It is
consequent also to the same condition that there be no propriety, no
dominion, no mine and thine distinct; but only that to be every man's
that he can get, and for so long as he can keep it. And thus much for
the ill condition which man by mere nature is actually placed in;
though with a possibility to come out of it, consisting partly in the
passions, partly in his reason."
There
is more to be said about Hobbes, but in the meantime we can perhaps see
why, although his thought is in its own way as powerful as that of
Locke, Thomas Jefferson did not use his work in the Declaration.
Continuing with Locke
In
the remainder of Chapter 2 Locke takes an important step in his
argument by contending that, since there exists as yet no governmental
authority, "the execution of the law of nature is, in that state, put
into every man's hands."
"...every
one has a right to punish the transgressors of that law to such a
degree, as may hinder its violation: for the law of nature would, as
all other laws that concern men in this world, be in vain, if there
were 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."
Locke continues:
"And
thus, in the state of nature, one man comes by a power over another;
but yet no absolute or arbitrary power, to use a criminal, when he has
got him in his hands, according to the passionate heats, or boundless
extravagancy of his own will; but only to retribute to him, so far as
calm reason and conscience dictate, what is proportionate to his
transgression, which is so much as may serve for reparation and
restraint: for these two are the only reasons, why one man may lawfully
do harm to another, which is that we call punishment. In transgressing
the law of nature, the offender declares himself to live by another
rule than that of reason and common equity, which is that measure God
has set to the actions of men, for their mutual security; and so he
becomes dangerous to mankind, the 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 the case, and upon this ground, every
man hath a right to punish the offender, and be executioner of the law
of nature."
This
execution of the moral law of nature comprises two rights or actions:
punishment of the transgression and reparation for the injury done to
the victim.
"Every
man, in the state of nature, has a power to kill a murderer, both to
deter others from doing the like injury, which no reparation can
compensate, by the example of the punishment that attends it from
everybody, and also to secure men from the attempts of a criminal who,
having renounced reason, the common rule and measure God hath given to
mankind, hath, by the unjust violence and slaughter he hath committed
upon one, declared war against all mankind, and therefore may be
destroyed as a lion or tiger..."
But how far can this private punishment go? As we have seen, Locke accepts the death penalty.
"I
answer, each transgression may be punished to that degree, and with so
much severity, as will suffice to make it an ill bargain to the
offender, give him cause to repent, and terrify others from doing the
like."
There is an obvious objection to this right of private punishment, 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..."
Locke
admits this is all true. It is precisely to avoid this bias that the
institution of government with courts of justice for the settlement of
disputes is necessary.
"...civil government is the proper remedy for the inconveniencies of the state of nature."
It
might seem, however, that all this is purely theoretical, for now
governments do exist, and so no one any longer has this right (for, as
he will argue, we give up this right when we enter civil society). But
Locke points to a sphere where that is not true, namely between
nations.
"It
is often asked as a mighty objection, where are, or ever were there any
men in such a state of nature? To which it may suffice as an answer at
present, that since all princes and rulers of independent governments
all through the world, are in a state of nature, it is plain the world
never was, nor 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..."
This
is reasoning that the governments of the English-speaking world have
used more than once in intervening in disputes outside their own
borders: for example, in the Gulf War of 1992 when the U.S. and its
allies responded to Iraq's invasion of Kuwait. One of the reasons why
the nations of continental Europe tend to become uneasy with such
actions and feel the U.S. is behaving like a "cowboy" is because Locke
and his arguments are only remotely a part of their intellectual
heritage.
There
follows a chapter on the state of war, and one on slavery "which is
nothing else but the state of war continued." Chapter 3 on war is
devoted mainly to war between individuals: aggressive crime, and has
been very influential.
In
Chapter 5 Locke makes what is generally considered the classic argument
for the existence of an absolute and exclusive right to own private
property. If we start, as he does, from the assumption, based on the
Bible, that in the beginning the world was owned by everyone in common,
the question then is how an individual can come to own anything
exclusively. Locke's answer is that it is accomplished through
productive labor. If we create something, then it belongs to us. The
clearest example of this perhaps is a work of art: if you compose a
poem or paint a picture, it is yours and not mine.
It
is to be noted that in the previous chapter on slavery, Locke argued
that no human being is by nature a slave, but rather each person owns
himself. This means that the chief form of property is one's own life.
Whenever Locke speaks of property in general, he always includes in
this concept the individual's right to life.
"I
shall endeavour to shew, how men might come to have a property in
several parts of that which God gave to mankind in common, and that
without any express compact of all the commoners.
Though
the earth, and all inferior creatures, be common to all men, yet every
man has a property in his own person: this no body has any right to but
himself. The labour of his body, and the work of his hands, we may say,
are properly his. Whatsoever then he removes out of the state that
nature hath provided, and left it in, he hath mixed his labour with,
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 hath
placed it in, it hath by this labour something annexed to it, that
excludes the common right of other men: for this labour being the
unquestionable property of the labourer, no man but he can have a right
to what that is once joined to, at least where there is enough, and as
good, left in common for others.
He
that is nourished by the acorns he picked up under an oak, or the
apples he gathered from the trees in the wood, has certainly
appropriated them to himself. No body can deny but the nourishment is
his. I ask then, when did they begin to be his? when he digested? or
when he eat? or when he boiled? or when he brought them home? or when
he picked them up? and it is plain, if the first gathering made them
not his, nothing else could. That labour put a distinction between them
and common: that added something to them more than nature, the common
mother of all, had done; and so they became his private right. And will
any one say, he had no right to those acorns or apples, he thus
appropriated, because he had not the consent of all mankind to make
them his? Was it a robbery thus to assume to himself what belonged to
all in common? If such a consent as that was necessary, man had
starved, notwithstanding the plenty God had given him. We see in
commons, which remain so by compact, that it is the taking any part of
what is common, and removing it out of the state nature leaves it in,
which begins the property; without which the common is of no use. And
the taking of this or that part, does not depend on the express consent
of all the commoners. Thus the grass my horse has bit; the turfs my
servant has cut; and the ore I have digged in any place, where I have a
right to them in common with others, become my property, without the
assignation or consent of any body. The labour that was mine, removing
them out of that common state they were in, hath fixed my property in
them.
Thus
this law of reason makes the deer that Indian's who hath killed it; it
is allowed to be his goods, who hath bestowed his labour upon it,
though before it was the common right of every one. And amongst those
who are counted the civilized part of mankind, who have made and
multiplied positive laws to determine property, this original law of
nature, for the beginning of property, in what was before common, still
takes place; and by virtue thereof, what fish any one catches in the
ocean, that great and still remaining common of mankind; or what
ambergrise any one takes up here, is by the labour that removes it out
of that common state nature left it in, made his property, who takes
that pains about it. And even amongst us, the hare that any one is
hunting, is thought his who pursues her during the chase: for being a
beast that is still looked upon as common, and no man's private
possession; whoever has employed so much labour about any of that kind,
as to find and pursue her, has thereby removed her from the state of
nature, wherein she was common, and hath begun a property."
It is foolish, he argues, to believe that the consent of the rest of mankind is needed for this appropriation.
"By
making an explicit consent of every commoner, necessary to any one's
appropriating to himself any part of what is given in common, children
or servants could not cut the meat, which their father or master had
provided for them in common, without assigning to every one his
peculiar part. Though the water running in the fountain be every one's,
yet who can doubt, but that in the pitcher is his only who drew it out?
His labour hath taken it out of the hands of nature, where it was
common, and belonged equally to all her children, and hath thereby
appropriated it to himself."
But this does not mean there is no natural limit to this right.
"It
will perhaps be objected to this, that if gathering the acorns, or
other fruits of the earth, &c. makes a right to them, then any one
may ingross as much as he will. To which I answer, Not so. The same law
of nature, that does by this means give us property, does also bound
that property too. God has given us all things richly, 1 Tim. vi. 12.
is the voice of reason confirmed by inspiration. But how far has he
given it us? To enjoy. As much as any one can make use of to any
advantage of life before it spoils, so much he may by his labour fix a
property in: whatever is beyond this, is more than his share, and
belongs to others. Nothing was made by God for man to spoil or destroy."
However,
the invention of money changes this, because coins do not spoil. Once a
money economy exists, there is no limit to the amount of wealth an
individual can amass, for of itself the possession of wealth does not
harm anyone, but rather creates benefits for others.
"Thus
in the beginning all the world was America, and more so than that is
now; for no such thing as money was any where known. Find out something
that hath the use and value of money amongst his neighbours, you shall
see the same man will begin presently to enlarge his possessions.
But
since gold and silver, being little useful to the life of man in
proportion to food, raiment, and carriage, has its value only from the
consent of men, whereof labour yet makes, in great part, the measure,
it is plain, that men have agreed to a disproportionate and unequal
possession of the earth, they having, by a tacit and voluntary consent,
found out a way how a man may fairly possess more land than he himself
can use the product of, by receiving in exchange for the overplus gold
and silver, which may be hoarded up without injury to any one; these
metals not spoiling or decaying in the hands of the possessor. This
partage of things in an inequality of private possessions, men have
made practicable out of the bounds of society, and without compact,
only by putting a value on gold and silver, and tacitly agreeing in the
use of money: for in governments, the laws regulate the right of
property, and the possession of land is determined by positive
constitutions.
And
thus, I think, it is very easy to conceive, without any difficulty, how
labour could at first begin a title of property in the common things of
nature, and how the spending it upon our uses bounded it. So that there
could then be no reason of quarrelling about title, nor any doubt about
the largeness of possession it gave. Right and conveniency went
together; for as a man had a right to all he could employ his labour
upon, so he had no temptation to labour for more than he could make use
of. This left no room for controversy about the title, nor for
encroachment on the right of others; what portion a man carved to
himself, was easily seen; and it was useless, as well as dishonest, to
carve himself too much, or take more than he needed."
In
Chapter 9 Locke takes up the question how a transition is made from the
state of nature, or without government, to political society. The state
of nature has some serious disadvantages.
"The
great and chief end, therefore, of men's uniting into commonwealths,
and putting themselves under government, is the preservation of their
property. To which in the state of nature there are many things wanting.
First,
There wants an established, settled, known law, received and allowed by
common consent to be the standard of right and wrong, and the common
measure to decide all controversies between them: for though the law of
nature be plain and intelligible to all rational creatures; yet men
being biassed by their interest, as well as ignorant for want of study
of it, are not apt to allow of it as a law binding to them in the
application of it to their particular cases.
Secondly,
In the state of nature there wants a known and indifferent judge, with
authority to determine all differences according to the established
law: for every one in that state being both judge and executioner of
the law of nature, men being partial to themselves, passion and revenge
is very apt to carry them too far, and with too much heat, in their own
cases; as well as negligence, and unconcernedness, to make them too
remiss in other men's.
Thirdly,
In the state of nature there often wants power to back and support the
sentence when right, and to give it due execution, They who by any
injustice offended, will seldom fail, where they are able, by force to
make good their injustice; such resistance many times makes the
punishment dangerous, and frequently destructive, to those who attempt
it."
Men
can overcome these difficulties by joining together to form a
commonwealth, which will provide them with objective laws, unbiassed
judges and sufficient armed police force to enforce the sentences of
the courts. But to do this they must give up powers they possess by
right in the state of nature.
"For in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.
The
first is to do whatsoever he thinks fit for the preservation of
himself, and others within the permission of the law of nature: by
which law, common to them all, he and all the rest of mankind are one
community, make up one society, distinct from all other creatures. And
were it not for the corruption and vitiousness of degenerate men, there
would be no need of any other; no necessity that men should separate
from this great and natural community, and by positive agreements
combine into smaller and divided associations.
The
other power a man has in the state of nature, is the power to punish
the crimes committed against that law. Both these he gives up, when he
joins in a private, if I may so call it, or particular politic society,
and incorporates into any common-wealth, separate from the rest of
mankind.
The
first power, viz. of doing whatsoever he thought for the preservation
of himself, and the rest of mankind, he gives up to be regulated by
laws made by the society, so far forth as the preservation of himself,
and the rest of that society shall require; which laws of the society
in many things confine the liberty he had by the law of nature.
Secondly,
The power of punishing he wholly gives up, and engages his natural
force, (which he might before employ in the execution of the law of
nature, by his own single authority, as he thought fit) to assist the
executive power of the society, as the law thereof shall require: for
being now in a new state, wherein he is to enjoy many conveniencies,
from the labour, assistance, and society of others in the same
community, as well as protection from its whole strength; he is to part
also with as much of his natural liberty, in providing for himself, as
the good, prosperity, and safety of the society shall require; which is
not only necessary, but just, since the other members of the society do
the like."
But
the creation of the state or commonwealth is a very dangerous step,
because it puts immense monopoly power in the hands of a few. Therefore
that power must be restricted to the achievement of those particular
purposes for which it is created, which have just been enumerated.
"But
though men, when they enter into society, give up the equality,
liberty, and executive power they had in the state of nature, into the
hands of the society, to be so far disposed of by the legislative, as
the good of the society shall require; yet it being only with an
intention in every one the better to preserve himself, his liberty and
property; (for no rational creature can be supposed to change his
condition with an intention to be worse) the power of the society, or
legislative constituted by them, can never be supposed to extend
farther, than the common good; but is obliged to secure every one's
property, by providing against those three defects above mentioned,
that made the state of nature so unsafe and uneasy. And so whoever has
the legislative or supreme power of any common-wealth, is bound to
govern by established standing laws, promulgated and known to the
people, and not by extemporary decrees; by indifferent and upright
judges, who are to decide controversies by those laws; and to employ
the force of the community at home, only in the execution of such laws,
or abroad to prevent or redress foreign injuries, and secure the
community from inroads and invasion. And all this to be directed to no
other end, but the peace, safety, and public good of the people."
Further texts:
"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 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 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 declaration, and the fundamental law of nature being the
preservation of mankind, no human sanction can be good, or valid
against it.
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 subject 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.
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.
Thirdly,
The supreme power cannot take from any man any part of his property
without his own consent: for the preservation of property being the end
of government, and that for which men enter into society, it
necessarily supposes and requires, that the people should have
property, without which they must be supposed to lose that, by entering
into society, which was the end for which they entered into it; too
gross an absurdity for any man to own. Men therefore in society having
property, they have such a right to the goods, which by the law of the
community are their's, 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 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, 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.
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 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 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 commander has
his power, viz. the preservation of the rest; but the disposing of his
goods has nothing to do with it.
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?
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 have no power to transfer their
authority of making laws, and place it in other hands.
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 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,
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."
Locke's
last two chapters are on tyranny, which exists when the ruler goes
beyond the powers we have just seen he is entitled to, and on the
dissolution of government, which is justified when that happens. These
chapters initially referred to the excesses of the Stuart monarchs
restored to power when the Puritan revolt came to an end in 1689, but
seemed to the American revolutionaries of 1776 just as applicable to
the government of Great Britain at that time.
Read Lecture 3: Freedom of Commerce: Adam Smith (1723-1790)
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