Thomas Patrick Burke
D.Phil.,D.Th.
President, Wynnewood Institute, Professor Emeritus of Religion, Temple University
Freedom and Tradition: An Introduction to Classical Liberalism and Conservatism
A Course with Professor Thomas Patrick Burke
Fall 2006
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 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 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.