The Constitution of No Authority
by Lysander Spooner
The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
We, the people of the United States (that is, the people THEN EXISTING in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.
It is plain, in the first place, that this language, AS AN AGREEMENT, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.
Suppose an agreement were entered into, in this form:
We, the people of Boston, agree to maintain a fort on Governor’s Island, to protect ourselves and our posterity against invasion.
This agreement, as an agreement, would clearly bind nobody but the people then existing. Secondly, it would assert no right, power, or disposition, on their part, to compel their “posterity” to maintain such a fort. It would only indicate that the supposed welfare of their posterity was one of the motives that induced the original parties to enter into the agreement.
When a man says he is building a house for himself and his posterity, he does not mean to be understood as saying that he has any thought of binding them, nor is it to be inferred that he is so foolish as to imagine that he has any right or power to bind them, to live in it. So far as they are concerned, he only means to be understood as saying that his hopes and motives, in building it, are that they, or at least some of them, may find it for their happiness to live in it.
So when a man says he is planting a tree for himself and his posterity, he does not mean to be understood as saying that he has any thought of compelling them, nor is it to be inferred that he is such a simpleton as to imagine that he has any right or power to compel them, to eat the fruit. So far as they are concerned, he only means to say that his hopes and motives, in planting the tree, are that its fruit may be agreeable to them.
So it was with those who originally adopted the Constitution. Whatever may have been their personal intentions, the legal meaning of their language, so far as their “posterity” was concerned, simply was, that their hopes and motives, in entering into the agreement, were that it might prove useful and acceptable to their posterity; that it might promote their union, safety, tranquility, and welfare; and that it might tend “to secure to them the blessings of liberty.” The language does not assert nor at all imply, any right, power, or disposition, on the part of the original parties to the agreement, to compel their “posterity” to live under it. If they had intended to bind their posterity to live under it, they should have said that their objective was, not “to secure to them the blessings of liberty,” but to make slaves of them; for if their “posterity” are bound to live under it, they are nothing less than the slaves of their foolish, tyrannical, and dead grandfathers.
It cannot be said that the Constitution formed “the people of the United States,” for all time, into a corporation. It does not speak of “the people” as a corporation, but as individuals. A corporation does not describe itself as “we,” nor as “people,” nor as “ourselves.” Nor does a corporation, in legal language, have any “posterity.” It supposes itself to have, and speaks of itself as having, perpetual existence, as a single individuality.
Moreover, no body of men, existing at any one time, have the power to create a perpetual corporation. A corporation can become practically perpetual only by the voluntary accession of new members, as the old ones die off. But for this voluntary accession of new members, the corporation necessarily dies with the death of those who originally composed it.
Legally speaking, therefore, there is, in the Constitution, nothing that professes or attempts to bind the “posterity” of those who established it.
If, then, those who established the Constitution, had no power to bind, and did not attempt to bind, their posterity, the question arises, whether their posterity have bound themselves. If they have done so, they can have done so in only one or both of these two ways, viz., by voting, and paying taxes.
Let us consider these two matters, voting and tax paying, separately. And first of voting.
All the voting that has ever taken place under the Constitution, has been of such a kind that it not only did not pledge the whole people to support the Constitution, but it did not even pledge any one of them to do so, as the following considerations show.
1. In the very nature of things, the act of voting could bind nobody but the actual voters. But owing to the property qualifications required, it is probable that, during the first twenty or thirty years under the Constitution, not more than one-tenth, fifteenth, or perhaps twentieth of the whole population (black and white, men, women, and minors) were permitted to vote. Consequently, so far as voting was concerned, not more than one-tenth, fifteenth, or twentieth of those then existing, could have incurred any obligation to support the Constitution.
At the present time , it is probable that not more than one-sixth of the whole population are permitted to vote. Consequently, so far as voting is concerned, the other five-sixths can have given no pledge that they will support the Constitution.
2. Of the one-sixth that are permitted to vote, probably not more than two-thirds (about one-ninth of the whole population) have usually voted. Many never vote at all. Many vote only once in two, three, five, or ten years, in periods of great excitement.
No one, by voting, can be said to pledge himself for any longer period than that for which he votes. If, for example, I vote for an officer who is to hold his office for only a year, I cannot be said to have thereby pledged myself to support the government beyond that term. Therefore, on the ground of actual voting, it probably cannot be said that more than one-ninth or one-eighth, of the whole population are usually under any pledge to support the Constitution. [In recent years, since 1940, the number of voters in elections has usually fluctuated between one-third and two-fifths of the populace.]
3. It cannot be said that, by voting, a man pledges himself to support the Constitution, unless the act of voting be a perfectly voluntary one on his part. Yet the act of voting cannot properly be called a voluntary one on the part of any very large number of those who do vote. It is rather a measure of necessity imposed upon them by others, than one of their own choice. On this point I repeat what was said in a former number, viz.:
“In truth, in the case of individuals, their actual voting is not to be taken as proof of consent, even for the time being. On the contrary, it is to be considered that, without his consent having even been asked a man finds himself environed by a government that he cannot resist; a government that forces him to pay money, render service, and forego the exercise of many of his natural rights, under peril of weighty punishments. He sees, too, that other men practice this tyranny over him by the use of the ballot. He sees further, that, if he will but use the ballot himself, he has some chance of relieving himself from this tyranny of others, by subjecting them to his own. In short, he finds himself, without his consent, so situated that, if he use the ballot, he may become a master; if he does not use it, he must become a slave. And he has no other alternative than these two. In self- defence, he attempts the former. His case is analogous to that of a man who has been forced into battle, where he must either kill others, or be killed himself. Because, to save his own life in battle, a man takes the lives of his opponents, it is not to be inferred that the battle is one of his own choosing. Neither in contests with the ballot — which is a mere substitute for a bullet — because, as his only chance of self- preservation, a man uses a ballot, is it to be inferred that the contest is one into which he voluntarily entered; that he voluntarily set up all his own natural rights, as a stake against those of others, to be lost or won by the mere power of numbers. On the contrary, it is to be considered that, in an exigency into which he had been forced by others, and in which no other means of self-defence offered, he, as a matter of necessity, used the only one that was left to him.
“Doubtless the most miserable of men, under the most oppressive government in the world, if allowed the ballot, would use it, if they could see any chance of thereby meliorating their condition. But it would not, therefore, be a legitimate inference that the government itself, that crushes them, was one which they had voluntarily set up, or even consented to.
“Therefore, a man’s voting under the Constitution of the United States, is not to be taken as evidence that he ever freely assented to the Constitution, even for the time being. Consequently we have no proof that any very large portion, even of the actual voters of the United States, ever really and voluntarily consented to the Constitution, EVEN FOR THE TIME BEING. Nor can we ever have such proof, until every man is left perfectly free to consent, or not, without thereby subjecting himself or his property to be disturbed or injured by others.”
As we can have no legal knowledge as to who votes from choice, and who from the necessity thus forced upon him, we can have no legal knowledge, as to any particular individual, that he voted from choice; or, consequently, that by voting, he consented, or pledged himself, to support the government. Legally speaking, therefore, the act of voting utterly fails to pledge ANY ONE to support the government. It utterly fails to prove that the government rests upon the voluntary support of anybody. On general principles of law and reason, it cannot be said that the government has any voluntary supporters at all, until it can be distinctly shown who its voluntary supporters are.
4. As taxation is made compulsory on all, whether they vote or not, a large proportion of those who vote, no doubt do so to prevent their own money being used against themselves; when, in fact, they would have gladly abstained from voting, if they could thereby have saved themselves from taxation alone, to say nothing of being saved from all the other usurpations and tyrannies of the government. To take a man’s property without his consent, and then to infer his consent because he attempts, by voting, to prevent that property from being used to his injury, is a very insufficient proof of his consent to support the Constitution. It is, in fact, no proof at all. And as we can have no legal knowledge as to who the particular individuals are, if there are any, who are willing to be taxed for the sake of voting, we can have no legal knowledge that any particular individual consents to be taxed for the sake of voting; or, consequently, consents to support the Constitution.
5. At nearly all elections, votes are given for various candidates for the same office. Those who vote for the unsuccessful candidates cannot properly be said to have voted to sustain the Constitution. They may, with more reason, be supposed to have voted, not to support the Constitution, but specially to prevent the tyranny which they anticipate the successful candidate intends to practice upon them under color of the Constitution; and therefore may reasonably be supposed to have voted against the Constitution itself. This supposition is the more reasonable, inasmuch as such voting is the only mode allowed to them of expressing their dissent to the Constitution.
6. Many votes are usually given for candidates who have no prospect of success. Those who give such votes may reasonably be supposed to have voted as they did, with a special intention, not to support, but to obstruct the exection of, the Constitution; and, therefore, against the Constitution itself.
7. As all the different votes are given secretly (by secret ballot), there is no legal means of knowing, from the votes themselves, who votes for, and who votes against, the Constitution. Therefore, voting affords no legal evidence that any particular individual supports the Constitution. And where there can be no legal evidence that any particular individual supports the Constitution, it cannot legally be said that anybody supports it. It is clearly impossible to have any legal proof of the intentions of large numbers of men, where there can be no legal proof of the intentions of any particular one of them.
8. There being no legal proof of any man’s intentions, in voting, we can only conjecture them. As a conjecture, it is probable, that a very large proportion of those who vote, do so on this principle, viz., that if, by voting, they could but get the government into their own hands (or that of their friends), and use its powers against their opponents, they would then willingly support the Constitution; but if their opponents are to have the power, and use it against them, then they would NOT willingly support the Constitution.
In short, men’s voluntary support of the Constitution is doubtless, in most cases, wholly contingent upon the question whether, by means of the Constitution, they can make themselves masters, or are to be made slaves.
Such contingent consent as that is, in law and reason, no consent at all.
9. As everybody who supports the Constitution by voting (if there are any such) does so secretly (by secret ballot), and in a way to avoid all personal responsibility for the acts of his agents or representatives, it cannot legally or reasonably be said that anybody at all supports the Constitution by voting. No man can reasonably or legally be said to do such a thing as assent to, or support, the Constitution, unless he does it openly, and in a way to make himself personally responsible for the acts of his agents, so long as they act within the limits of the power he delegates to them.
10. As all voting is secret (by secret ballot), and as all secret governments are necessarily only secret bands of robbers, tyrants, and murderers, the general fact that our government is practically carried on by means of such voting, only proves that there is among us a secret band of robbers, tyrants, and murderers, whose purpose is to rob, enslave, and, so far as necessary to accomplish their purposes, murder, the rest of the people. The simple fact of the existence of such a vand does nothing towards proving that “the people of the United States,” or any one of them, voluntarily supports the Constitution.
For all the reasons that have now been given, voting furnishes no legal evidence as to who the particular individuals are (if there are any), who voluntarily support the Constitution. It therefore furnishes no legal evidence that anybody supports it voluntarily.
So far, therefore, as voting is concerned, the Constitution, legally speaking, has no supporters at all.
And, as a matter of fact, there is not the slightest probability that the Constitution has a single bona fide supporter in the country. That is to say, there is not the slightest probability that there is a single man in the country, who both understands what the Constitution really is, and sincerely supports it for what it really is.
The ostensible supporters of the Constitution, like the ostensible supporters of most other governments, are made up of three classes, viz.: 1. Knaves, a numerous and active class, who see in the government an instrument which they can use for their own aggrandizement or wealth. 2. Dupes — a large class, no doubt — each of whom, because he is allowed one voice out of millions in deciding what he may do with his own person and his own property, and because he is permitted to have the same voice in robbing, enslaving, and murdering others, that others have in robbing, enslaving, and murdering himself, is stupid enough to imagine that he is a “free man,” a “sovereign”; that this is “a free government”; “a government of equal rights,” “the best government on earth,”  and such like absurdities. 3. A class who have some appreciation of the evils of government, but either do not see how to get rid of them, or do not choose to so far sacrifice their private interests as to give themselves seriously and earnestly to the work of making a change.
 Suppose it be “the best government on earth,” does that prove its own goodness, or only the badness of all other governments?
The payment of taxes, being compulsory, of course furnishes no evidence that any one voluntarily supports the Constitution.
1. It is true that the THEORY of our Constitution is, that all taxes are paid voluntarily; that our government is a mutual insurance company, voluntarily entered into by the people with each other; that that each man makes a free and purely voluntary contract with all others who are parties to the Constitution, to pay so much money for so much protection, the same as he does with any other insurance company; and that he is just as free not to be protected, and not to pay tax, as he is to pay a tax, and be protected.
But this theory of our government is wholly different from the practical fact. The fact is that the government, like a highwayman, says to a man: “Your money, or your life.” And many, if not most, taxes are paid under the compulsion of that threat.
The government does not, indeed, waylay a man in a lonely place, spring upon him from the roadside, and, holding a pistol to his head, proceed to rifle his pockets. But the robbery is none the less a robbery on that account; and it is far more dastardly and shameful.
The highwayman takes solely upon himself the responsibility, danger, and crime of his own act. He does not pretend that he has any rightful claim to your money, or that he intends to use it for your own benefit. He does not pretend to be anything but a robber. He has not acquired impudence enough to profess to be merely a “protector,” and that he takes men’s money against their will, merely to enable him to “protect” those infatuated travellers, who feel perfectly able to protect themselves, or do not appreciate his peculiar system of protection. He is too sensible a man to make such professions as these. Furthermore, having taken your money, he leaves you, as you wish him to do. He does not persist in following you on the road, against your will; assuming to be your rightful “sovereign,” on account of the “protection” he affords you. He does not keep “protecting” you, by commanding you to bow down and serve him; by requiring you to do this, and forbidding you to do that; by robbing you of more money as often as he finds it for his interest or pleasure to do so; and by branding you as a rebel, a traitor, and an enemy to your country, and shooting you down without mercy, if you dispute his authority, or resist his demands. He is too much of a gentleman to be guilty of such impostures, and insults, and villanies as these. In short, he does not, in addition to robbing you, attempt to make you either his dupe or his slave.
The proceedings of those robbers and murderers, who call themselves “the government,” are directly the opposite of these of the single highwayman.
In the first place, they do not, like him, make themselves individually known; or, consequently, take upon themselves personally the responsibility of their acts. On the contrary, they secretly (by secret ballot) designate some one of their number to commit the robbery in their behalf, while they keep themselves practically concealed. They say to the person thus designated:
Go to A_____ B_____, and say to him that “the government” has need of money to meet the expenses of protecting him and his property. If he presumes to say that he has never contracted with us to protect him, and that he wants none of our protection, say to him that that is our business, and not his; that we CHOOSE to protect him, whether he desires us to do so or not; and that we demand pay, too, for protecting him. If he dares to inquire who the individuals are, who have thus taken upon themselves the title of “the government,” and who assume to protect him, and demand payment of him, without his having ever made any contract with them, say to him that that, too, is our business, and not his; that we do not CHOOSE to make ourselves INDIVIDUALLY known to him; that we have secretly (by secret ballot) appointed you our agent to give him notice of our demands, and, if he complies with them, to give him, in our name, a receipt that will protect him against any similar demand for the present year. If he refuses to comply, seize and sell enough of his property to pay not only our demands, but all your own expenses and trouble beside. If he resists the seizure of his property, call upon the bystanders to help you (doubtless some of them will prove to be members of our band.) If, in defending his property, he should kill any of our band who are assisting you, capture him at all hazards; charge him (in one of our courts) with murder; convict him, and hang him. If he should call upon his neighbors, or any others who, like him, may be disposed to resist our demands, and they should come in large numbers to his assistance, cry out that they are all rebels and traitors; that “our country” is in danger; call upon the commander of our hired murderers; tell him to quell the rebellion and “save the country,” cost what it may. Tell him to kill all who resist, though they should be hundreds of thousands; and thus strike terror into all others similarly disposed. See that the work of murder is thoroughly done; that we may have no further trouble of this kind hereafter. When these traitors shall have thus been taught our strength and our determination, they will be good loyal citizens for many years, and pay their taxes without a why or a wherefore.
It is under such compulsion as this that taxes, so called, are paid. And how much proof the payment of taxes affords, that the people consent to “support the government,” it needs no further argument to show.
2. Still another reason why the payment of taxes implies no consent, or pledge, to support the government, is that the taxpayer does not know, and has no means of knowing, who the particular individuals are who compose “the government.” To him “the government” is a myth, an abstraction, an incorporeality, with which he can make no contract, and to which he can give no consent, and make no pledge. He knows it only through its pretended agents. “The government” itself he never sees. He knows indeed, by common report, that certain persons, of a certain age, are permitted to vote; and thus to make themselves parts of, or (if they choose) opponents of, the government, for the time being. But who of them do thus vote, and especially how each one votes (whether so as to aid or oppose the government), he does not know; the voting being all done secretly (by secret ballot). Who, therefore, practically compose “the government,” for the time being, he has no means of knowing. Of course he can make no contract with them, give them no consent, and make them no pledge. Of necessity, therefore, his paying taxes to them implies, on his part, no contract, consent, or pledge to support them — that is, to support “the government,” or the Constitution.
3. Not knowing who the particular individuals are, who call themselves “the government,” the taxpayer does not know whom he pays his taxes to. All he knows is that a man comes to him, representing himself to be the agent of “the government” — that is, the agent of a secret band of robbers and murderers, who have taken to themselves the title of “the government,” and have determined to kill everybody who refuses to give them whatever money they demand. To save his life, he gives up his money to this agent. But as this agent does not make his principals individually known to the taxpayer, the latter, after he has given up his money, knows no more who are “the government” — that is, who were the robbers — than he did before. To say, therefore, that by giving up his money to their agent, he entered into a voluntary contract with them, that he pledges himself to obey them, to support them, and to give them whatever money they should demand of him in the future, is simply ridiculous.
4. All political power, so called, rests practically upon this matter of money. Any number of scoundrels, having money enough to start with, can establish themselves as a “government”; because, with money, they can hire soldiers, and with soldiers extort more money; and also compel general obedience to their will. It is with government, as Caesar said it was in war, that money and soldiers mutually supported each other; that with money he could hire soldiers, and with soldiers extort money. So these villains, who call themselves governments, well understand that their power rests primarily upon money. With money they can hire soldiers, and with soldiers extort money. And, when their authority is denied, the first use they always make of money, is to hire soldiers to kill or subdue all who refuse them more money.
For this reason, whoever desires liberty, should understand these vital facts, viz.: 1. That every man who puts money into the hands of a “government” (so called), puts into its hands a sword which will be used against him, to extort more money from him, and also to keep him in subjection to its arbitrary will. 2. That those who will take his money, without his consent, in the first place, will use it for his further robbery and enslavement, if he presumes to resist their demands in the future. 3. That it is a perfect absurdity to suppose that any body of men would ever take a man’s money without his consent, for any such object as they profess to take it for, viz., that of protecting him; for why should they wish to protect him, if he does not wish them to do so? To suppose that they would do so, is just as absurd as it would be to suppose that they would take his moeny without his consent, for the purpose of buying food or clothing for him, when he did not want it. 4. If a man wants “protection,” he is competent to make his own bargains for it; and nobody has any occasion to rob him, in order to “protect” him against his will. 5. That the only security men can have for their political liberty, consists in their keeping their money in their own pockets, until they have assurances, perfectly satisfactory to themselves, that it will be used as they wish it to be used, for their benefit, and not for their injury. 6. That no government, so called, can reasonably be trusted for a moment, or reasonably be supposed to have honest purposes in view, any longer than it depends wholly upon voluntary support.
These facts are all so vital and so self-evident, that it cannot reasonably be supposed that any one will voluntarily pay money to a “government,” for the purpose of securing its protection, unless he first make an explicit and purely voluntary contract with it for that purpose.
It is perfectly evident, therefore, that neither such voting, nor such payment of taxes, as actually takes place, proves anybody’s consent, or obligation, to support the Constitution. Consequently we have no evidence at all that the Constitution is binding upon anybody, or that anybody is under any contract or obligation whatever to support it. And nobody is under any obligation to support it.
The constitution not only binds nobody now, but it never did bind anybody. It never bound anybody, because it was never agreed to by anybody in such a manner as to make it, on general principles of law and reason, binding upon him.
It is a general principle of law and reason, that a written instrument binds no one until he has signed it. This principle is so inflexible a one, that even though a man is unable to write his name, he must still “make his mark,” before he is bound by a written contract. This custom was established ages ago, when few men could write their names; when a clerk — that is, a man who could write — was so rare and valuable a person, that even if he were guilty of high crimes, he was entitled to pardon, on the ground that the public could not afford to lose his services. Even at that time, a written contract must be signed; and men who could not write, either “made their mark,” or signed their contracts by stamping their seals upon wax affixed to the parchment on which their contracts were written. Hence the custom of affixing seals, that has continued to this time.
The laws holds, and reason declares, that if a written instrument is not signed, the presumption must be that the party to be bound by it, did not choose to sign it, or to bind himself by it. And law and reason both give him until the last moment, in which to decide whether he will sign it, or not. Neither law nor reason requires or expects a man to agree to an instrument, until it is writteN; for until it is written, he cannot know its precise legal meaning. And when it is written, and he has had the opportunity to satisfy himself of its precise legal meaning, he is then expected to decide, and not before, whether he will agree to it or not. And if he do not THEN sign it, his reason is supposed to be, that he does not choose to enter into such a contract. The fact that the instrument was written for him to sign, or with the hope that he would sign it, goes for nothing.
Where would be the end of fraud and litigation, if one party could bring into court a written instrument, without any signature, and claim to have it enforced, upon the ground that it was written for another man to sign? that this other man had promised to sign it? that he ought to have signed it? that he had had the opportunity to sign it, if he would? but that he had refused or neglected to do so? Yet that is the most that could ever be said of the Constitution.  The very judges, who profess to derive all their authority from the Constitution — from an instrument that nobody ever signed — would spurn any other instrument, not signed, that should be brought before them for adjudication.  The very men who drafted it, never signed it in any way to bind themselves by it, AS A CONTRACT. And not one of them probably ever would have signed it in any way to bind himself by it, AS A CONTRACT.
Moreover, a written instrument must, in law and reason, not only be signed, but must also be delivered to the party (or to some one for him), in whose favor it is made, before it can bind the party making it. The signing is of no effect, unless the instrument be also delivered. And a party is at perfect liberty to refuse to deliver a written instrument, after he has signed it. The Constitution was not only never signed by anybody, but it was never delivered by anybody, or to anybody’s agent or attorney. It can therefore be of no more validity as a contract, then can any other instrument that was never signed or delivered.
As further evidence of the general sense of mankind, as to the practical necessity there is that all men’s IMPORTANT contracts, especially those of a permanent nature, should be both written and signed, the following facts are pertinent.
For nearly two hundred years — that is, since 1677 — there has been on the statute book of England, and the same, in substance, if not precisely in letter, has been re-enacted, and is now in force, in nearly or quite all the States of this Union, a statute, the general object of which is to declare that no action shall be brought to enforce contracts of the more important class, UNLESS THEY ARE PUT IN WRITING, AND SIGNED BY THE PARTIES TO BE HELD CHARGEABLE UPON THEM. [At this point there is a footnote listing 34 states whose statute books Spooner had examined, all of which had variations of this English statute; the footnote also quotes part of the Massachussetts statute.]
The principle of the statute, be it observed, is, not merely that written contracts shall be signed, but also that all contracts, except for those specially exempted — generally those that are for small amounts, and are to remain in force for but a short time — SHALL BE BOTH WRITTEN AND SIGNED.
The reason of the statute, on this point, is, that it is now so easy a thing for men to put their contracts in writing, and sign them, and their failure to do so opens the door to so much doubt, fraud, and litigation, that men who neglect to have their contracts — of any considerable importance — written and signed, ought not to have the benefit of courts of justice to enforce them. And this reason is a wise one; and that experience has confirmed its wisdom and necessity, is demonstrated by the fact that it has been acted upon in England for nearly two hundred years, and has been so nearly universally adopted in this country, and that nobody thinks of repealing it.
We all know, too, how careful most men are to have their contracts written and signed, even when this statute does not require it. For example, most men, if they have money due them, of no larger amount than five or ten dollars, are careful to take a note for it. If they buy even a small bill of goods, paying for it at the time of delivery, they take a receipted bill for it. If they pay a small balance of a book account, or any other small debt previously contracted, they take a written receipt for it.
Furthermore, the law everywhere (probably) in our country, as well as in England, requires that a large class of contracts, such as wills, deeds, etc., shall not only be written and signed, but also sealed, witnessed, and acknowledged. And in the case of married women conveying their rights in real estate, the law, in many States, requires that the women shall be examined separate and apart from their husbands, and declare that they sign their contracts free of any fear or compulsion of their husbands.
Such are some of the precautions which the laws require, and which individuals — from motives of common prudence, even in cases not required by law — take, to put their contracts in writing, and have them signed, and, to guard against all uncertainties and controversies in regard to their meaning and validity. And yet we have what purports, or professes, or is claimed, to be a contract — the Constitution — made eighty years ago, by men who are now all dead, and who never had any power to bind US, but which (it is claimed) has nevertheless bound three generations of men, consisting of many millions, and which (it is claimed) will be binding upon all the millions that are to come; but which nobody ever signed, sealed, delivered, witnessed, or acknowledged; and which few persons, compared with the whole number that are claimed to be bound by it, have ever read, or even seen, or ever will read, or see. And of those who ever have read it, or ever will read it, scarcely any two, perhaps no two, have ever agreed, or ever will agree, as to what it means.
Moreover, this supposed contract, which would not be received in any court of justice sitting under its authority, if offered to prove a debt of five dollars, owing by one man to another, is one by which — AS IT IS GENERALLY INTERPRETED BY THOSE WHO PRETEND TO ADMINISTER IT — all men, women and children throughout the country, and through all time, surrender not only all their property, but also their liberties, and even lives, into the hands of men who by this supposed contract, are expressly made wholly irresponsible for their disposal of them. And we are so insane, or so wicked, as to destroy property and lives without limit, in fighting to compel men to fulfill a supposed contract, which, inasmuch as it has never been signed by anybody, is, on general princples of law and reason — such principles as we are all governed by in regard to other contracts — the merest waste of paper, binding upon nobody, fit only to be thrown into the fire; or, if preserved, preserved only to serve as a witness and a warning of the folly and wickedness of mankind.
It is no exaggeration, but a literal truth, to say that, by the Constitution — NOT AS I INTERPRET IT, BUT AS IT IS INTERPRETED BY THOSE WHO PRETEND TO ADMINISTER IT — the properties, liberties, and lives of the entire people of the United States are surrendered unreservedly into the hands of men who, it is provided by the Constitution itself, shall never be “questioned” as to any disposal they make of them.
Thus the Constitution (Art. I, Sec. 6) provides that, “for any speech or debate (or vote), in either house, they (the senators and representatives) shall not be questioned in any other place.”
The whole law-making power is given to these senators and representatives (when acting by a two-thirds vote);  and this provision protects them from all responsibility for the laws they make.  And this two-thirds vote may be but two-thirds of a quorum — that is two-thirds of a majority — instead of two-thirds of the whole. The Constitution also enables them to secure the execution of all their laws, by giving them power to withhold the salaries of, and to impeach and remove, all judicial and executive officers, who refuse to execute them.
Thus the whole power of the government is in their hands, and they are made utterly irresponsible for the use they make of it. What is this but absolute, irresponsible power?
It is no answer to this view of the case to say that these men are under oath to use their power only within certain limits; for what care they, or what should they care, for oaths or limits, when it is expressly provided, by the Constitution itself, that they shall never be “questioned,” or held to any resonsibility whatever, for violating their oaths, or transgressing those limits?
Neither is it any answer to this view of the case to say that the men holding this absolute, irresponsible power, must be men chosen by the people (or portions of them) to hold it. A man is none the less a slave because he is allowed to choose a new master once in a term of years. Neither are a people any the less slaves because permitted periodically to choose new masters. What makes them slaves is the fact that they now are, and are always hereafter to be, in the hands of men whose power over them is, and always is to be, absolute and irresponsible.   Of what appreciable value is it to any man, as an individual, that he is allowed a voice in choosing these public masters? His voice is only one of several millions.
The right of absolute and irresponsible dominion is the right of property, and the right of property is the right of absolute, irresponsible dominion. The two are identical; the one necessarily implies the other. Neither can exist without the other. If, therefore, Congress have that absolute and irresponsible law-making power, which the Constitution — according to their interpretation of it — gives them, it can only be because they own us as property. If they own us as property, they are our masters, and their will is our law. If they do not own us as property, they are not our masters, and their will, as such, is of no authority over us.
But these men who claim and exercise this absolute and irresponsible dominion over us, dare not be consistent, and claim either to be our masters, or to own us as property. They say they are only our servants, agents, attorneys, and representatives. But this declaration involves an absurdity, a contradiction. No man can be my servant, agent, attorney, or representative, and be, at the same time, uncontrollable by me, and irresponsible to me for his acts. It is of no importance that I appointed him, and put all power in his hands. If I made him uncontrollable by me, and irresponsible to me, he is no longer my servant, agent, attorney, or representative. If I gave him absolute, irresponsible power over my property, I gave him the property. If I gave him absolute, irresponsible power over myself, I made him my master, and gave myself to him as a slave. And it is of no importance whether I called him master or servant, agent or owner. The only question is, what power did I put in his hands? Was it an absolute and irresponsible one? or a limited and responsible one?
For still another reason they are neither our servants, agents, attorneys, nor representatives. And that reason is, that we do not make ourselves responsible for their acts. If a man is my servant, agent, or attorney, I necessarily make myself responsible for all his acts done within the limits of the power I have intrusted to him. If I have intrusted him, as my agent, with either absolute power, or any power at all, over the persons or properties of other men than myself, I thereby necessarily make myself responsible to those other persons for any injuries he may do them, so long as he acts within the limits of the power I have granted him. But no individual who may be injured in his person or property, by acts of Congress, can come to the individual electors, and hold them responsible for these acts of their so-called agents or representatives. This fact proves that these pretended agents of the people, of everybody, are really the agents of nobody.
If, then, nobody is individually responsible for the acts of Congress, the members of Congress are nobody’s agents. And if they are nobody’s agents, they are themselves individually responsible for their own acts, and for the acts of all whom they employ. And the authority they are exercising is simply their own individual authority; and, by the law of nature — the highest of all laws — anybody injured by their acts, anybody who is deprived by them of his property or his liberty, has the same right to hold them individually responsible, that he has to hold any other trespasser individually responsible. He has the same right to resist them, and their agents, that he has to resist any other trespassers.
It is plain, then, that on general principles of law and reason — such principles as we all act upon in courts of justice and in common life — the Constitution is no contract; that it binds nobody, and never did bind anybody; and that all those who pretend to act by its authority, are really acting without any legitimate authority at all; that, on general principles of law and reason, they are mere usurpers, and that everybody not only has the right, but is morally bound, to treat them as such.
If the people of this country wish to maintain such a government as the Constitution describes, there is no reason in the world why they should not sign the instrument itself, and thus make known their wishes in an open, authentic manner; in such manner as the common sense and experience of mankind have shown to be reasonable and necessary in such cases; AND IN SUCH MANNER AS TO MAKE THEMSELVES (AS THEY OUGHT TO DO) INDIVIDUALLY RESPONSIBLE FOR THE ACTS OF THE GOVERNMENT. But the people have never been asked to sign it. And the only reason why they have never been asked to sign it, has been that it has been known that they never would sign it; that they were neither such fools nor knaves as they must needs have been to be willing to sign it; that (at least as it has been practically interpreted) it is not what any sensible and honest man wants for himself; nor such as he has any right to impose upon others. It is, to all moral intents and purposes, as destitute of obligations as the compacts which robbers and thieves and pirates enter into with each other, but never sign.
If any considerable number of the people believe the Constitution to be good, why do they not sign it themselves, and make laws for, and administer them upon, each other; leaving all other persons (who do not interfere with them) in peace? Until they have tried the experiment for themselves, how can they have the face to impose the Constitution upon, or even to recommend it to, others? Plainly the reason for absurd and inconsistent conduct is that they want the Constitution, not solely for any honest or legitimate use it can be of to themselves or others, but for the dishonest and illegitimate power it gives them over the persons and properties of others. But for this latter reason, all their eulogiums on the Constitution, all their exhortations, and all their expenditures of money and blood to sustain it, would be wanting.
The Constitution itself, then, being of no authority, on what authority does our government practically rest? On what ground can those who pretend to administer it, claim the right to seize men’s property, to restrain them of their natural liberty of action, industry, and trade, and to kill all who deny their authority to dispose of men’s properties, liberties, and lives at their pleasure or discretion?
The most they can say, in answer to this question, is, that some half, two-thirds, or three-fourths, of the male adults of the country have a TACIT UNDERSTANDING that they will maintain a government under the Constitution; that they will select, by ballot, the persons to administer it; and that those persons who may receive a majority, or a plurality, of their ballots, shall act as their representatives, and administer the Constitution in their name, and by their authority.
But this tacit understanding (admitting it to exist) cannot at all justify the conclusion drawn from it. A tacit understanding between A, B, and C, that they will, by ballot, depute D as their agent, to deprive me of my property, liberty, or life, cannot at all authorize D to do so. He is none the less a robber, tyrant, and murderer, because he claims to act as their agent, than he would be if he avowedly acted on his own responsibility alone.
Neither am I bound to recognize him as their agent, nor can he legitimately claim to be their agent, when he brings no WRITTEN authority from them accrediting him as such. I am under no obligation to take his word as to who his principals may be, or whether he has any. Bringing no credentials, I have a right to say he has no such authority even as he claims to have: and that he is therefore intending to rob, enslave, or murder me on his own account.
This tacit understanding, therefore, among the voters of the country, amounts to nothing as an authority to their agents. Neither do the ballots by which they select their agents, avail any more than does their tacit understanding; for their ballots are given in secret, and therefore in such a way as to avoid any personal responsibility for the acts of their agents.
No body of men can be said to authorize a man to act as their agent, to the injury of a third person, unless they do it in so open and authentic a manner as to make themselves personally responsible for his acts. None of the voters in this country appoint their political agents in any open, authentic manner, or in any manner to make themselves responsible for their acts. Therefore these pretended agents cannot legitimately claim to be really agents. Somebody must be responsible for the acts of these pretended agents; and if they cannot show any open and authentic credentials from their principals, they cannot, in law or reason, be said to have any principals. The maxim applies here, that what does not appear, does not exist. If they can show no principals, they have none.
But even these pretended agents do not themselves know who their pretended principals are. These latter act in secret; for acting by secret ballot is acting in secret as much as if they were to meet in secret conclave in the darkness of the night. And they are personally as much unknown to the agents they select, as they are to others. No pretended agent therefore can ever know by whose ballots he is selected, or consequently who his real principles are. Not knowing who his principles are, he has no right to say that he has any. He can, at most, say only that he is the agent of a secret band of robbers and murderers, who are bound by that faith which prevails among confederates in crime, to stand by him, if his acts, done in their name, shall be resisted.
Men honestly engaged in attempting to establish justice in the world, have no occasion thus to act in secret; or to appoint agents to do acts for which they (the principals) are not willing to be responsible.
The secret ballot makes a secret government; and a secret government is a secret band of robbers and murderers. Open despotism is better than this. The single despot stands out in the face of all men, and says: I am the State: My will is law: I am your master: I take the responsibility of my acts: The only arbiter I acknowledge is the sword: If anyone denies my right, let him try conclusions with me.
But a secret government is little less than a government of assassins. Under it, a man knows not who his tyrants are, until they have struck, and perhaps not then. He may GUESS, beforehand, as to some of his immediate neighbors. But he really knows nothing. The man to whom he would most naturally fly for protection, may prove an enemy, when the time of trial comes.
This is the kind of government we have; and it is the only one we are likely to have, until men are ready to say: We will consent to no Constitution, except such an one as we are neither ashamed nor afraid to sign; and we will authorize no government to do anything in our name which we are not willing to be personally responsible for.
What is the motive to the secret ballot? This, and only this: Like other confederates in crime, those who use it are not friends, but enemies; and they are afraid to be known, and to have their individual doings known, even to each other. They can contrive to bring about a sufficient understanding to enable them to act in concert against other persons; but beyond this they have no confidence, and no friendship, among themselves. In fact, they are engaged quite as much in schemes for plundering each other, as in plundering those who are not of them. And it is perfectly well understood among them that the strongest party among them will, in certain contingencies, murder each other by the hundreds of thousands (as they lately did do) to accomplish their purposes against each other. Hence they dare not be known, and have their individual doings known, even to each other. And this is avowedly the only reason for the ballot: for a secret government; a government by secret bands of robbers and murderers. And we are insane enough to call this liberty! To be a member of this secret band of robbers and murderers is esteemed a privilege and an honor! Without this privilege, a man is considered a slave; but with it a free man! With it he is considered a free man, because he has the same power to secretly (by secret ballot) procure the robbery, enslavement, and murder of another man, and that other man has to procure his robbery, enslavement, and murder. And this they call equal rights!
If any number of men, many or few, claim the right to govern the people of this country, let them make and sign an open compact with each other to do so. Let them thus make themselves individually known to those whom they propose to govern. And let them thus openly take the legitimate responsibility of their acts. How many of those who now support the Constitution, will ever do this? How many will ever dare openly proclaim their right to govern? or take the legitimate responsibility of their acts? Not one!
It is obvious that, on general principles of law and reason, there exists no such thing as a government created by, or resting upon, any consent, compact, or agreement of “the people of the United States” with each other; that the only visible, tangible, responsible government that exists, is that of a few individuals only, who act in concert, and call themselves by the several names of senators, representatives, presidents, judges, marshals, treasurers, collectors, generals, colonels, captains, etc., etc.
On general principles of law and reason, it is of no importance whatever that these few individuals profess to be the agents and representatives of “the people of the United States”; since they can show no credentials from the people themselves; they were never appointed as agents or representatives in any open, authentic manner; they do not themselves know, and have no means of knowing, and cannot prove, who their principals (as they call them) are individually; and consequently cannot, in law or reason, be said to have any principals at all.
It is obvious, too, that if these alleged principals ever did appoint these pretended agents, or representatives, they appointed them secretly (by secret ballot), and in a way to avoid all personal responsibility for their acts; that, at most, these alleged principals put these pretended agents forward for the most criminal purposes, viz.: to plunder the people of their property, and restrain them of their liberty; and that the only authority that these alleged principals have for so doing, is simply a TACIT UNDERSTANDING among themselves that they will imprison, shoot, or hang every man who resists the exactions and restraints which their agents or representatives may impose upon them.
Thus it is obvious that the only visible, tangible government we have is made up of these professed agents or representatives of a secret band of robbers and murderers, who, to cover up, or gloss over, their robberies and murders, have taken to themselves the title of “the people of the United States”; and who, on the pretense of being “the people of the United States,” assert their right to subject to their dominion, and to control and dispose of at their pleasure, all property and persons found in the United States.
On general principles of law and reason, the oaths which these pretended agents of the people take “to support the Constitution,” are of no validity or obligation. And why? For this, if for no other reason, viz., THAT THEY ARE GIVEN TO NOBODY. There is no privity (as the lawyers say) — that is, no mutual recognition, consent, and agreement — between those who take these oaths, and any other persons.
If I go upon Boston Common, and in the presence of a hundred thousand people, men, women and children, with whom I have no contract upon the subject, take an oath that I will enforce upon them the laws of Moses, of Lycurgus, of Solon, of Justinian, or of Alfred, that oath is, on general principles of law and reason, of no obligation. It is of no obligation, not merely because it is intrinsically a criminal one, BUT ALSO BECAUSE IT IS GIVEN TO NOBODY, and consequently pledges my faith to nobody. It is merely given to the winds.
It would not alter the case at all to say that, among these hundred thousand persons, in whose presence the oath was taken, there were two, three, or five thousand male adults, who had SECRETLY — by secret ballot, and in a way to avoid making themselves INDIVIDUALLY known to me, or to the remainder of the hundred thousand — designated me as their agent to rule, control, plunder, and, if need be, murder, these hundred thousand people. The fact that they had designated me secretly, and in a manner to prevent my knowing them individually, prevents all privity between them and me; and consequently makes it impossible that there can be any contract, or pledge of faith, on my part towards them; for it is impossible that I can pledge my faith, in any legal sense, to a man whom I neither know, nor have any means of knowing, individually.
So far as I am concerned, then, these two, three, or five thousand persons are a secret band of robbers and murderers, who have secretly, and in a way to save themselves from all responsibility for my acts, designated me as their agent; and have, through some other agent, or pretended agent, made their wishes known to me. But being, nevertheless, individually unknown to me, and having no open, authentic contract with me, my oath is, on general principles of law and reason, of no validity as a pledge of faith to them. And being no pledge of faith to them, it is no pledge of faith to anybody. It is mere idle wind. At most, it is only a pledge of faith to an unknown band of robbers and murderers, whose instrument for plundering and murdering other people, I thus publicly confess myself to be. And it has no other obligation than a similar oath given to any other unknown body of pirates, robbers, and murderers.
For these reasons the oaths taken by members of Congress, “to support the Constitution,” are, on general principles of law and reason, of no validity. They are not only criminal in themselves, and therefore void; but they are also void for the further reason THAT THEY ARE GIVEN TO NOBODY.
It cannot be said that, in any legitimate or legal sense, they are given to “the people of the United States”; because neither the whole, nor any large proportion of the whole, people of the United States ever, either openly or secretly, appointed or designated these men as their agents to carry the Constitution into effect. The great body of the people — that is, men, women, and children — were never asked, or even permitted, to signify, in any FORMAL manner, either openly or secretly, their choice or wish on the subject. The most that these members of Congress can say, in favor of their appointment, is simply this: Each one can say for himself:
I have evidence satisfactory to myself, that there exists, scattered throughout the country, a band of men, having a tacit understanding with each other, and calling themselves “the people of the United States,” whose general purposes are to control and plunder each other, and all other persons in the country, and, so far as they can, even in neighboring countries; and to kill every man who shall attempt to defend his person and property against their schemes of plunder and dominion. Who these men are, INDIVIDUALLY, I have no certain means of knowing, for they sign no papers, and give no open, authentic evidence of their individual membership. They are not known individually even to each other. They are apparently as much afraid of being individually known to each other, as of being known to other persons. Hence they ordinarily have no mode either of exercising, or of making known, their individual membership, otherwise than by giving their votes secretly for certain agents to do their will. \ But although these men are individually unknown, both to each other and to other persons, it is generally understood in the country that none but male persons, of the age of twenty-one years and upwards, can be members. It is also generally understood that ALL male persons, born in the country, having certain complexions, and (in some localities) certain amounts of property, and (in certain cases) even persons of foreign birth, are PERMITTED to be members. But it appears that usually not more than one half, two-thirds, or in some cases, three-fourths, of all who are thus permitted to become members of the band, ever exercise, or consequently prove, their actual membership, in the only mode in which they ordinarily can exercise or prove it, viz., by giving their votes secretly for the officers or agents of the band. The number of these secret votes, so far as we have any account of them, varies greatly from year to year, thus tending to prove that the band, instead of being a permanent organization, is a merely PRO TEMPORE affair with those who choose to act with it for the time being. \ The gross number of these secret votes, or what purports to be their gross number, in different localities, is occasionally published. Whether these reports are accurate or not, we have no means of knowing. It is generally supposed that great frauds are often committed in depositing them. They are understood to be received and counted by certain men, who are themselves appointed for that purpose by the same secret process by which all other officers and agents of the band are selected. According to the reports of these receivers of votes (for whose accuracy or honesty, however, I cannot vouch), and according to my best knowledge of the whole number of male persons “in my district,” who (it is supposed) were permitted to vote, it would appear that one-half, two-thirds or three-fourths actually did vote. Who the men were, individually, who cast these votes, I have no knowledge, for the whole thing was done secretly. But of the secret votes thus given for what they call a “member of Congress,” the receivers reported that I had a majority, or at least a larger number than any other one person. And it is only by virtue of such a designation that I am now here to act in concert with other persons similarly selected in other parts of the country. \ It is understood among those who sent me here, that all persons so selected, will, on coming together at the City of Washington, take an oath in each other’s presence “to support the Constitution of the United States.” By this is meant a certain paper that was drawn up eighty years ago. It was never signed by anybody, and apparently has no obligation, and never had any obligation, as a contract. In fact, few persons ever read it, and doubtless much the largest number of those who voted for me and the others, never even saw it, or now pretend to know what it means. Nevertheless, it is often spoken of in the country as “the Constitution of the United States”; and for some reason or other, the men who sent me here, seem to expect that I, and all with whom I act, will swear to carry this Constitution into effect. I am therefore ready to take this oath, and to co-operate with all others, similarly selected, who are ready to take the same oath.
This is the most that any member of Congress can say in proof that he has any constituency; that he represents anybody; that his oath “to support the Constitution,” IS GIVEN TO ANYBODY, or pledges his faith to ANYBODY. He has no open, written, or other authentic evidence, such as is required in all other cases, that he was ever appointed the agent or representative of anybody. He has no written power of attorney from any single individual. He has no such legal knowledge as is required in all other cases, by which he can identify a single one of those who pretend to have appointed him to represent them.
Of course his oath, professedly given to them, “to support the Constitution,” is, on general principles of law and reason, an oath given to nobody. It pledges his faith to nobody. If he fails to fulfil his oath, not a single person can come forward, and say to him, you have betrayed me, or broken faith with me.
No one can come forward and say to him: I appointed you my attorney to act for me. I required you to swear that, as my attorney, you would support the Constitution. You promised me that you would do so; and now you have forfeited the oath you gave to me. No single individual can say this.
No open, avowed, or responsible association, or body of men, can come forward and say to him: We appointed you our attorney, to act forus. We required you to swear that, as our attorney, you would support the Constitution. You promised us that you would do so; and now you have forfeited the oath you gave to us.
No open, avowed, or responsible association, or body of men, can say this to him; because there is no such association or body of men in existence. If any one should assert that there is such an association, let him prove, if he can, who compose it. Let him produce, if he can, any open, written, or other authentic contract, signed or agreed to by these men; forming themselves into an association; making themselves known as such to the world; appointing him as their agent; and making themselves individually, or as an association, responsible for his acts, done by their authority. Until all this can be shown, no one can say that, in any legitimate sense, there is any such association; or that he is their agent; or that he ever gave his oath to them; or ever pledged his faith to them.
On general principles of law and reason, it would be a sufficient answer for him to say, to all individuals, and to all pretended associations of individuals, who should accuse him of a breach of faith to them:
I never knew you. Where is your evidence that you, either individually or collectively, ever appointed me your attorney? that you ever required me to swear to you, that, as your attorney, I would support the Constitution? or that I have now broken any faith that I ever pledged to you? You may, or you may not, be members of that secret band of robbers and murderers, who act in secret; appoint their agents by a secret ballot; who keep themselves individually unknown even to the agents they thus appoint; and who, therefore, cannot claim that they have any agents; or that any of their pretended agents ever gave his oath, or pledged his faith to them. I repudiate you altogether. My oath was given to others, with whom you have nothing to do; or it was idle wind, given only to the idle winds. Begone!
For the same reasons, the oaths of all the other pretended agents of this secret band of robbers and murderers are, on general principles of law and reason, equally destitute of obligation. They are given to nobody; but only to the winds.
The oaths of the tax-gatherers and treasurers of the band, are, on general principles of law and reason, of no validity. If any tax gatherer, for example, should put the money he receives into his own pocket, and refuse to part with it, the members of this band could not say to him: You collected that money as our agent, and for our uses; and you swore to pay it over to us, or to those we should appoint to receive it. You have betrayed us, and broken faith with us.
It would be a sufficient answer for him to say to them:
I never knew you. You never made yourselves individually known to me. I never game by oath to you, as individuals. You may, or you may not, be members of that secret band, who appoint agents to rob and murder other people; but who are cautious not to make themselves individually known, either to such agents, or to those whom their agents are commissioned to rob. If you are members of that band, you have given me no proof that you ever commissioned me to rob others for your benefit. I never knew you, as individuals, and of course never promised you that I would pay over to you the proceeds of my robberies. I committed my robberies on my own account, and for my own profit. If you thought I was fool enough to allow you to keep yourselves concealed, and use me as your tool for robbing other persons; or that I would take all the personal risk of the robberies, and pay over the proceeds to you, you were particularly simple. As I took all the risk of my robberies, I propose to take all the profits. Begone! You are fools, as well as villains. If I gave my oath to anybody, I gave it to other persons than you. But I really gave it to nobody. I only gave it to the winds. It answered my purposes at the time. It enabled me to get the money I was after, and now I propose to keep it. If you expected me to pay it over to you, you relied only upon that honor that is said to prevail among thieves. You now understand that that is a very poor reliance. I trust you may become wise enough to never rely upon it again. If I have any duty in the matter, it is to give back the money to those from whom I took it; not to pay it over to villains such as you.
On general principles of law and reason, the oaths which foreigners take, on coming here, and being “naturalized” (as it is called), are of no validity. They are necessarily given to nobody; because there is no open, authentic association, to which they can join themselves; or to whom, as individuals, they can pledge their faith. No such association, or organization, as “the people of the United States,” having ever been formed by any open, written, authentic, or voluntary contract, there is, on general principles of law and reason, no such association, or organization, in existence. And all oaths that purport to be given to such an association are necessarily given only to the winds. They cannot be said to be given to any man, or body of men, as individuals, because no man, or body of men, can come forward WITH ANY PROOF that the oaths were given to them, as individuals, or to any association of which they are members. To say that there is a tacit understanding among a portion of the male adults of the country, that they will call themselves “the people of the United States,” and that they will act in concert in subjecting the remainder of the people of the United States to their dominion; but that they will keep themselves personally concealed by doing all their acts secretly, is wholly insufficient, on general principles of law and reason, to prove the existence of any such association, or organization, as “the people of the United States”; or consequently to prove that the oaths of foreigners were given to any such association.
On general principles of law and reason, all the oaths which, since the war, have been given by Southern men, that they will obey the laws of Congress, support the Union, and the like, are of no validity. Such oaths are invalid, not only because they were extorted by military power, and threats of confiscation, and because they are in contravention of men’s natural right to do as they please about supporting the government, BUT ALSO BECAUSE THEY WERE GIVEN TO NOBODY. They were nominally given to “the United States.” But being nominally given to “the United States,” they were necessarily given to nobody, because, on general principles of law and reason, there were no “United States,” to whom the oaths could be given. That is to say, there was no open, authentic, avowed, legitimate association, corporation, or body of men, known as “the United States,” or as “the people of the United States,” to whom the oaths could have been given. If anybody says there was such a corporation, let him state who were the individuals that composed it, and how and when they became a corporation. Were Mr. A, Mr. B, and Mr. C members of it? If so, where are their signatures? Where the evidence of their membership? Where the record? Where the open, authentic proof? There is none. Therefore, in law and reason, there was no such corporation.
On general principles of law and reason, every corporation, association, or organized body of men, having a legitimate corporate existence, and legitimate corporate rights, must consist of certain known individuals, who can prove, by legitimate and reasonable evidence, their membership. But nothing of this kind can be proved in regard to the corporation, or body of men, who call themselves “the United States.” Not a man of them, in all the Northern States, can prove by any legitimate evidence, such as is required to prove membership in other legal corporations, that he himself, or any other man whom he can name, is a member of any corporation or association called “the United States,” or “the people of the United States,” or, consequently, that there is any such corporation. And since no such corporation can be proved to exist, it cannot of course be proved that the oaths of Southern men were given to any such corporation. The most that can be claimed is that the oaths were given to a secret band of robbers and murderers, who called themselves “the United States,” and extorted those oaths. But that is certainly not enough to prove that the oaths are of any obligation.
On general principles of law and reason, the oaths of soldiers, that they will serve a given number of years, that they will obey the the orders of their superior officers, that they will bear true allegiance to the government, and so forth, are of no obligation. Independently of the criminality of an oath, that, for a given number of years, he will kill all whom he may be commanded to kill, without exercising his own judgment or conscience as to the justice or necessity of such killing, there is this further reason why a soldier’s oath is of no obligation, viz., that, like all the other oaths that have now been mentioned, IT IS GIVEN TO NOBODY. There being, in no legitimate sense, any such corporation, or nation, as “the United States,” nor, consequently, in any legitimate sense, any such government as “the government of the United States,” a soldier’s oath given to, or contract made with, such a nation or government, is necessarily an oath given to, or contract made with, nobody. Consequently such an oath or contract can be of no obligation.
On general principles of law and reason, the treaties, so called, which purport to be entered into with other nations, by persons calling themselves ambassadors, secretaries, presidents, and senators of the United States, in the name, and in behalf, of “the people of the United States,” are of no validity. These so-called ambassadors, secretaries, presidents, and senators, who claim to be the agents of “the people of the United States” for making these treaties, can show no open, written, or other authentic evidence that either the whole “people of the United States,” or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors and others to make treaties in the name of, or binding upon any one of, “the people of the United States,” or any other open, avowed, responsible body of men, calling themselves by that name, ever authorized these pretended ambassadors, secretaries, and others, in their name and behalf, to recognize certain other persons, calling themselves emperors, kings, queens, and the like, as the rightful rulers, sovereigns, masters, or representatives of the different peoples whom they assume to govern, to represent, and to bind.
The “nations,” as they are called, with whom our pretended ambassadors, secretaries, presidents, and senators profess to make treaties, are as much myths as our own. On general principles of law and reason, there are no such “nations.” That is to say, neither the whole people of England, for example, nor any open, avowed, responsible body of men, calling themselves by that name, ever, by any open, written, or other authentic contract with each other, formed themselves into any bona fide, legitimate association or organization, or authorized any king, queen, or other representative to make treaties in their name, or to bind them, either individually, or as an association, by such treaties.
Our pretended treaties, then, being made with no legitimate or bona fide nations, or representatives of nations, and being made, on our part, by persons who have no legitimate authority to act for us, have instrinsically no more validity than a pretended treaty made by the Man in the Moon with the king of the Pleiades.
On general principles of law and reason, debts contracted in the name of “the United States,” or of “the people of the United States,” are of no validity. It is utterly absurd to pretend that debts to the amount of twenty-five hundred millions of dollars are binding upon thirty-five or forty millions of people [the approximate national debt and population in 1870], when there is not a particle of legitimate evidence — such as would be required to prove a private debt — that can be produced against any one of them, that either he, or his properly authorized attorney, ever contracted to pay one cent.
Certainly, neither the whole people of the United States, nor any number of them, ever separately or individually contracted to pay a cent of these debts.
Certainly, also, neither the whole people of the United States, nor any number of them, every, by any open, written, or other authentic and voluntary contract, united themselves as a firm, corporation, or association, by the name of “the United States,” or “the people of the United States,” and authorized their agents to contract debts in their name.
Certainly, too, there is in existence no such firm, corporation, or association as “the United States,” or “the people of the United States,” formed by any open, written, or other authentic and voluntary contract, and having corporate property with which to pay these debts.
How, then, is it possible, on any general principle of law or reason, that debts that are binding upon nobody individually, can be binding upon forty millions of people collectively, when, on general and legitimate principles of law and reason, these forty millions of people neither have, nor ever had, any corporate property? never made any corporate or individual contract? and neither have, nor ever had, any corporate existence?
Who, then, created these debts, in the name of “the United States”? Why, at most, only a few persons, calling themselves “members of Congress,” etc., who pretended to represent “the people of the United States,” but who really represented only a secret band of robbers and murderers, who wanted money to carry on the robberies and murders in which they were then engaged; and who intended to extort from the future people of the United States, by robbery and threats of murder (and real murder, if that should prove necessary), the means to pay these debts.
This band of robbers and murderers, who were the real principals in contracting these debts, is a secret one, because its members have never entered into any open, written, avowed, or authentic contract, by which they may be individually known to the world, or even to each other. Their real or pretended representatives, who contracted these debts in their name, were selected (if selected at all) for that purpose secretly (by secret ballot), and in a way to furnish evidence against none of the principals INDIVIDUALLY; and these principals were really known INDIVIDUALLY neither to their pretended representatives who contracted these debts in their behalf, nor to those who lent the money. The money, therefore, was all borrowed and lent in the dark; that is, by men who did not see each other’s faces, or know each other’s names; who could not then, and cannot now, identify each other as principals in the transactions; and who consequently can prove no contract with each other.
Furthermore, the money was all lent and borrowed for criminal purposes; that is, for purposes of robbery and murder; and for this reason the contracts were all intrinsically void; and would have been so, even though the real parties, borrowers and lenders, had come face to face, and made their contracts openly, in their own proper names.
Furthermore, this secret band of robbers and murderers, who were the real borrowers of this money, having no legitimate corporate existence, have no corporate property with which to pay these debts. They do indeed pretend to own large tracts of wild lands, lying between the Atlantic and Pacific Oceans, and between the Gulf of Mexico and the North Pole. But, on general principles of law and reason, they might as well pretend to own the Atlantic and Pacific Oceans themselves; or the atmosphere and the sunlight; and to hold them, and dispose of them, for the payment of these debts.
Having no corporate property with which to pay what purports to be their corporate debts, this secret band of robbers and murderers are really bankrupt. They have nothing to pay with. In fact, they do not propose to pay their debts otherwise than from the proceeds of their future robberies and murders. These are confessedly their sole reliance; and were known to be such by the lenders of the money, at the time the money was lent. And it was, therefore, virtually a part of the contract, that the money should be repaid only from the proceeds of these future robberies and murders. For this reason, if for no other, the contracts were void from the beginning.
In fact, these apparently two classes, borrowers and lenders, were really one and the same class. They borrowed and lent money from and to themselves. They themselves were not only part and parcel, but the very life and soul, of this secret band of robbers and murderers, who borrowed and spent the money. Individually they furnished money for a common enterprise; taking, in return, what purported to be corporate promises for individual loans. The only excuse they had for taking these so-called corporate promises of, for individual loans by, the same parties, was that they might have some apparent excuse for the future robberies of the band (that is, to pay the debts of the corporation), and that they might also know what shares they were to be respectively entitled to out of the proceeds of their future robberies.
Finally, if these debts had been created for the most innocent and honest purposes, and in the most open and honest manner, by the real parties to the contracts, these parties could thereby have bound nobody but themselves, and no property but their own. They could have bound nobody that should have come after them, and no property subsequently created by, or belonging to, other persons.
The Constitution having never been signed by anybody; and there being no other open, written, or authentic contract between any parties whatever, by virtue of which the United States government, so called, is maintained; and it being well known that none but male persons, of twenty-one years of age and upwards, are allowed any voice in the government; and it being also well known that a large number of these adult persons seldom or never vote at all; and that all those who do vote, do so secretly (by secret ballot), and in a way to prevent their individual votes being known, either to the world, or even to each other; and consequently in a way to make no one openly responsible for the acts of their agents, or representatives, — all these things being known, the questions arise: WHO compose the real governing power in the country? Who are the men, THE RESPONSIBLE MEN, who rob us of our property? Restrain us of our liberty? Subject us to their arbitrary dominion? And devastate our hooms, and shoot us down by the hundreds of thousands, if we resist? How shall we find these men? How shall we know them from others? How shall we defend ourselves and our property against them? Who, of our neighbors, are members of this secret band of robbers and murderers? How can we know which are THEIR houses, that we may burn or demolish them? Which THEIR property, that we may destroy it? Which their persons, that we may kill them, and rid the world and ourselves of such tyrants and monsters?
These are questions that must be answered, before men can be free; before they can protect themselves against this secret band of robbers and murderers, who now plunder, enslave, and destroy them.
The answer to these questions is, that only those who have the will and power to shoot down their fellow men, are the real rulers in this, as in all other (so-called) civilized countries; for by no others will civilized men be robbed, or enslaved.
Among savages, mere physical strength, on the part of one man, may enable him to rob, enslave, or kill another man. Among barbarians, mere physical strength, on the part of a body of men, disciplined, and acting in concert, though with very little money or other wealth, may, under some circumstances, enable them to rob, enslave, or kill another body of men, as numerous, or perhaps even more numerous, than themselves. And among both savages and barbarians, mere want may sometimes compel one man to sell himself as a slave to another. But with (so-called) civilized peoples, among whom knowledge, wealth, and the means of acting in concert, have becom diffusede; and who have invented such weapons and other means of defense as to render mere physical strength of less importance; and by whom soldiers in any requisite number, and other instrumentalities of war in any requisite amount, can always be had for money, the question of war, and consequently the question of power, is little else than a mere question of money. As a necessary consequence, those who stand ready to furnish this money, are the real rulers. It is so in Europe, and it is so in this country.
In Europe, the nominal rulers, the emperors and kings and parliaments, are anything but the real rulers of their respective countries. They are little or nothing else than mere tools, employed by the wealthy to rob, enslave, and (if need be) murder those who have less wealth, or none at all.
The Rosthchilds, and that class of money-lenders of whom they are the representatives and agents — men who never think of lending a shilling to their next-door neighbors, for purposes of honest industry, unless upon the most ample security, and at the highest rate of interest — stand ready, at all times, to lend money in unlimited amounts to those robbers and murderers, who call themselves governments, to be expended in shooting down those who do not submit quietly to being robbed and enslaved.
They lend their money in this manner, knowing that it is to be expended in murdering their fellow men, for simply seeking their liberty and their rights; knowing also that neither the interest nor the principal will ever be paid, except as it will be extorted under terror of the repetition of such murders as those for which the money lent is to be expended.
These money-lenders, the Rosthchilds, for example, say to themselves: If we lend a hundred millions sterling to the queen and parliament of England, it will enable them to murder twenty, fifty, or a hundred thousand people in England, Ireland, or India; and the terror inspired by such wholesale slaughter, will enable them to keep the whole people of those countries in subjection for twenty, or perhaps fifty, years to come; to control all their trade and industry; and to extort from them large amounts of money, under the name of taxes; and from the wealth thus extorted from them, they (the queen and parliament) can afford to pay us a higher rate of interest for our money than we can get in any other way. Or, if we lend this sum to the emperor of Austria, it will enable him to murder so many of his people as to strike terror into the rest, and thus enable him to keep them in subjection, and extort money from them, for twenty or fifty years to come. And they say the same in regard to the emperor of Russia, the king of Prussia, the emperor of France, or any other ruler, so called, who, in their judgment, will be able, by murdering a reasonable portion of his people, to keep the rest in subjection, and extort money from them, for a long time to come, to pay the interest and the principal of the money lent him.
And why are these men so ready to lend money for murdering their fellow men? Soley for this reason, viz., that such loans are considered better investments than loans for purposes of honest industry. They pay higher rates of interest; and it is less trouble to look after them. This is the whole matter. The question of making these loans is, with these lenders, a mere question of pecuniary profit. They lend money to be expended in robbing, enslaving, and murdering their fellow men, solely because, on the whole, such loans pay better than any others. They are no respecters of persons, no superstitious fools, that reverence monarchs. They care no more for a king, or an emperor, than they do for a beggar, except as he is a better customer, and can pay them better interest for their money. If they doubt his ability to make his murders successful for maintaining his power, and thus extorting money from his people in future, they dismiss him unceremoniously as they would dismiss any other hopeless bankrupt, who should want to borrow money to save himself >from open insolvency.
When these great lenders of blood-money, like the Rothschilds, have loaned vast sums in this way, for purposes of murder, to an emperor or a king, they sell out the bonds taken by them, in small amounts, to anybody, and everybody, who are disposed to buy them at satisfactory prices, to hold as investments. They (the Rothschilds) thus soon get back their money, with great profits; and are now ready to lend money in the same way again to any other robber and murderer, called an emperor or king, who, they think, is likely to be successful in his robberies and murders, and able to pay a good price for the money necessary to carry them on.
This business of lending blood-money is one of the most thoroughly sordid, cold-blooded, and criminal that was ever carried on, to any considerable extent, amongst human beings. It is like lending money to slave traders, or to common robbers and pirates, to be repaid out of their plunder. And the men who loan money to governments, so called, for the purpose of enabling the latter to rob, enslave, and murder their people, are among the greatest villains that the world has ever seen. And they as much deserve to be hunted and killed (if they cannot otherwise be got rid of) as any slave traders, robbers, or pirates that ever lived.
When these emperors and kings, so-called, have obtained their loans, they proceed to hire and train immense numbers of professional murderers, called soldiers, and employ them in shooting down all who resist their demands for money. In fact, most of them keep large bodies of these murderers constantly in their service, as their only means of enforcing their extortions. There are now , I think, four or five millions of these professional murderers constantly employed by the so-called sovereigns of Europe. The enslaved people are, of course, forced to support and pay all these murderers, as well as to submit to all the other extortions which these murderers are employed to enforce.
It is only in this way that most of the so-called governments of Europe are maintained. These so-called governments are in reality only great bands of robbers and murderers, organized, disciplined, and constantly on the alert. And the so-called sovereigns, in these different governments, are simply the heads, or chiefs, of different bands of robbers and murderers. And these heads or chiefs are dependent upon the lenders of blood-money for the means to carry on their robberies and murders. They could not sustain themselves a moment but for the loans made to them by these blood-money loan-mongers. And their first care is to maintain their credit with them; for they know their end is come, the instant their credit with them fails. Consequently the first proceeds of their extortions are scrupulously applied to the payment of the interest on their loans.
In addition to paying the interest on their bonds, they perhaps grant to the holders of them great monopolies in banking, like the Banks of England, of France, and of Vienna; with the agreement that these banks shall furnish money whenever, in sudden emergencies, it may be necessary to shoot down more of their people. Perhaps also, by means of tariffs on competing imports, they give great monopolies to certain branches of industry, in which these lenders of blood-money are engaged. They also, by unequal taxation, exempt wholly or partially the property of these loan-mongers, and throw corresponding burdens upon those who are too poor and weak to resist.
Thus it is evident that all these men, who call themselves by the high-sounding names of Emperors, Kings, Sovereigns, Monarchs, Most Christian Majesties, Most Catholic Majesties, High Mightinesses, Most Serene and Potent Princes, and the like, and who claim to rule “by the grace of God,” by “Divine Right” — that is, by special authority from Heaven — are intrinsically not only the merest miscreants and wretches, engaged solely in plundering, enslaving, and murdering their fellow men, but that they are also the merest hangers on, the servile, obsequious, fawning dependents and tools of these blood-money loan-mongers, on whom they rely for the means to carry on their crimes. These loan-mongers, like the Rothschilds, laugh in their sleeves, and say to themselves: These despicable creatures, who call themselves emperors, and kings, and majesties, and most serene and potent princes; who profess to wear crowns, and sit on thrones; who deck themselves with ribbons, and feathers, and jewels; and surround themselves with hired flatterers and lickspittles; and whom we suffer to strut around, and palm themselves off, upon fools and slaves, as sovereigns and lawgivers specially appointed by Almighty God; and to hold themselves out as the sole fountains of honors, and dignities, and wealth, and power — all these miscreants and imposters know that we make them, and use them; that in us they live, move, and have their being; that we require them (as the price of their positions) to take upon themselves all the labor, all the danger, and all the odium of all the crimes they commit for our profit; and that we will unmake them, strip them of their gewgaws, and send them out into the world as beggars, or give them over to the vengeance of the people they have enslaved, the moment they refuse to commit any crime we require of them, or to pay over to us such share of the proceeds of their robberies as we see fit to demand.
Now, what is true in Europe, is substantially true in this country. The difference is the immaterial one, that, in this country, there is no visible, permanent head, or chief, of these robbers and murderers who call themselves “the government.” That is to say, there is no ONE MAN, who calls himself the state, or even emperor, king, or sovereign; no one who claims that he and his children rule “by the Grace of God,” by “Divine Right,” or by special appointment from Heaven. There are only certain men, who call themselves presidents, senators, and representatives, and claim to be the authorized agents, FOR THE TIME BEING, OR FOR CERTAIN SHORT PERIODS, OF ALL “the people of the United States”; but who can show no credentials, or powers of attorney, or any other open, authentic evidence that they are so; and who notoriously are not so; but are really only the agents of a secret band of robbers and murderers, whom they themselves do not know, and have no means of knowing, individually; but who, they trust, will openly or secretly, when the crisis comes, sustain them in all their usurpations and crimes.
What is important to be noticed is, that these so-called presidents, senators, and representatives, these pretended agents of all “the people of the United States,” the moment their exactions meet with any formidable resistance from any portion of “the people” themselves, are obliged, like their co-robbers and murderers in Europe, to fly at once to the lenders of blood money, for the means to sustain their power. And they borrow their money on the same principle, and for the same purpose, viz., to be expended in shooting down all those “people of the United States” — their own constituents and principals, as they profess to call them — who resist the robberies and enslavements which these borrowers of the money are practising upon them. And they expect to repay the loans, if at all, only from the proceeds of the future robberies, which they anticipate it will be easy for them and their successors to perpetrate through a long series of years, upon their pretended principals, if they can but shoot down now some hundreds of thousands of them, and thus strike terror into the rest.
Perhaps the facts were never made more evident, in any country on the globe, than in our own, that these soulless blood-money loan-mongers are the real rulers; that they rule from the most sordid and mercenary motives; that the ostensible government, the presidents, senators, and representatives, so called, are merely their tools; and that no ideas of, or regard for, justice or liberty had anything to do in inducing them to lend their money for the war [i.e, the Civil War]. In proof of all this, look at the following facts.
Nearly a hundred years ago we professed to have got rid of all that religious superstition, inculcated by a servile and corrupt priesthood in Europe, that rulers, so called, derived their authority directly from Heaven; and that it was consequently a religious duty on the part of the people to obey them. We professed long ago to have learned that governments could rightfully exist only by the free will, and on the voluntary support, of those who might choose to sustain them. We all professed to have known long ago, that the only legitimate objects of government were the maintenance of liberty and justice equally for all. All this we had professed for nearly a hundred years. And we professed to look with pity and contempt upon those ignorant, superstitious, and enslaved peoples of Europe, who were so easily kept in subjection by the frauds and force of priests and kings.
Notwithstanding all this, that we had learned, and known, and professed, for nearly a century, these lenders of blood money had, for a long series of years previous to the war, been the willing accomplices of the slave-holders in perverting the government from the purposes of liberty and justice, to the greatest of crimes. They had been such accomplices FOR A PURELY PECUNIARY CONSIDERATION, to wit, a control of the markets in the South; in other words, the privilege of holding the slave-holders themselves in industrial and commercial subjection to the manufacturers and merchants of the North (who afterwards furnished the money for the war). And these Northern merchants and manufacturers, these lenders of blood-money, were willing to continue to be the accomplices of the slave-holders in the future, for the same pecuniary considerations. But the slave-holders, either doubting the fidelity of their Northern allies, or feeling themselves strong enough to keep their slaves in subjection without Northern assistance, would no longer pay the price which these Northern men demanded. And it was to enforce this price in the future — that is, to monopolize the Southern markets, to maintain their industrial and commercial control over the South — that these Northern manufacturers and merchants lent some of the profits of their former monopolies for the war, in order to secure to themselves the same, or greater, monopolies in the future. These — and not any love of liberty or justice — were the motives on which the money for the war was lent by the North. In short, the North said to the slave-holders: If you will not pay us our price (give us control of your markets) for our assistance against your slaves, we will secure the same price (keep control of your markets) by helping your slaves against you, and using them as our tools for maintaining dominion over you; for the control of your markets we will have, whether the tools we use for that purpose be black or white, and be the cost, in blood and money, what it may.
On this principle, and from this motive, and not from any love of liberty, or justice, the money was lent in enormous amounts, and at enormous rates of interest. And it was only by means of these loans that the objects of the war were accomplished.
And now these lenders of blood-money demand their pay; and the government, so called, becomes their tool, their servile, slavish, villanous tool, to extort it from the labor of the enslaved people both of the North and South. It is to be extorted by every form of direct, and indirect, and unequal taxation. Not only the nominal debt and interest — enormous as the latter was — are to be paid in full; but these holders of the debt are to be paid still further — and perhaps doubly, triply, or quadruply paid — by such tariffs on imports as will enable our home manufacturers to realize enormous prices for their commodities; also by such monopolies in banking as will enable them to keep control of, and thus enslave and plunder, the industry and trade of the great body of the Northern people themselves. In short, the industrial and commercial slavery of the great body of the people, North and South, black and white, is the price which these lenders of blood money demand, and insist upon, and are determined to secure, in return for the money lent for the war.
This programme having been fully arranged and systematized, they put their sword into the hands of the chief murderer of the war, [undoubtedly a reference to General Grant, who had just become president] and charge him to carry their scheme into effect. And now he, speaking as their organ, says, “LET US HAVE PEACE.”
The meaning of this is: Submit quietly to all the robbery and slavery we have arranged for you, and you can have “peace.” But in case you resist, the same lenders of blood-money, who furnished the means to subdue the South, will furnish the means again to subdue you.
These are the terms on which alone this government, or, with few exceptions, any other, ever gives “peace” to its people.
The whole affair, on the part of those who furnished the money, has been, and now is, a deliberate scheme of robbery and murder; not merely to monopolize the markets of the South, but also to monopolize the currency, and thus control the industry and trade, and thus plunder and enslave the laborers, of both North and South. And Congress and the president are today the merest tools for these purposes. They are obliged to be, for they know that their own power, as rulers, so-called, is at an end, the moment their credit with the blood-money loan-mongers fails. They are like a bankrupt in the hands of an extortioner. They dare not say nay to any demand made upon them. And to hide at once, if possible, both their servility and crimes, they attempt to divert public attention, by crying out that they have “Abolished Slavery!” That they have “Saved the Country!” That they have “Preserved our Glorious Union!” and that, in now paying the “National Debt,” as they call it (as if the people themselves, ALL OF THEM WHO ARE TO BE TAXED FOR ITS PAYMENT, had really and voluntarily joined in contracting it), they are simply “Maintaining the National Honor!”
By “maintaining the national honor,” they mean simply that they themselves, open robbers and murderers, assume to be the nation, and will keep faith with those who lend them the money necessary to enable them to crush the great body of the people under their feet; and will faithfully appropriate, from the proceeds of their future robberies and murders, enough to pay all their loans, principal and interest.
The pretense that the “abolition of slavery” was either a motive or justification for the war, is a fraud of the same character with that of “maintaining the national honor.” Who, but such usurpers, robbers, and murderers as they, ever established slavery? Or what government, except one resting upon the sword, like the one we now have, was ever capable of maintaining slavery? And why did these men abolish slavery? Not from any love of liberty in general — not as an act of justice to the black man himself, but only “as a war measure,” and because they wanted his assistance, and that of his friends, in carrying on the war they had undertaken for maintaining and intensifying that political, commercial, and industrial slavery, to which they have subjected the great body of the people, both black and white. And yet these imposters now cry out that they have abolished the chattel slavery of the black man — although that was not the motive of the war — as if they thought they could thereby conceal, atone for, or justify that other slavery which they were fighting to perpetuate, and to render more rigorous and inexorable than it ever was before. There was no difference of principle — but only of degree — between the slavery they boast they have abolished, and the slavery they were fighting to preserve; for all restraints upon men’s natural liberty, not necessary for the simple maintenance of justice, are of the nature of slavery, and differ >from each other only in degree.
If their object had really been to abolish slavery, or maintain liberty or justice generally, they had only to say: All, whether white or black, who want the protection of this government, shall have it; and all who do not want it, will be left in peace, so long as they leave us in peace. Had they said this, slavery would necessarily have been abolished at once; the war would have been saved; and a thousand times nobler union than we have ever had would have been the result. It would have been a voluntary union of free men; such a union as will one day exist among all men, the world over, if the several nations, so called, shall ever get rid of the usurpers, robbers, and murderers, called governments, that now plunder, enslave, and destroy them.
Still another of the frauds of these men is, that they are now establishing, and that the war was designed to establish, “a government of consent.” The only idea they have ever manifested as to what is a government of consent, is this — that it is one to which everybody must consent, or be shot. This idea was the dominant one on which the war was carried on; and it is the dominant one, now that we have got what is called “peace.”
Their pretenses that they have “Saved the Country,” and “Preserved our Glorious Union,” are frauds like all the rest of their pretenses. By them they mean simply that they have subjugated, and maintained their power over, an unwilling people. This they call “Saving the Country”; as if an enslaved and subjugated people — or as if any people kept in subjection by the sword (as it is intended that all of us shall be hereafter) — could be said to have any country. This, too, they call “Preserving our Glorious Union”; as if there could be said to be any Union, glorious or inglorious, that was not voluntary. Or as if there could be said to be any union between masters and slaves; between those who conquer, and those who are subjugated.
All these cries of having “abolished slavery,” of having “saved the country,” of having “preserved the union,” of establishing “a government of consent,” and of “maintaining the national honor,” are all gross, shameless, transparent cheats — so transparent that they ought to deceive no one — when uttered as justifications for the war, or for the government that has suceeded the war, or for now compelling the people to pay the cost of the war, or for compelling anybody to support a government that he does not want.
The lesson taught by all these facts is this: As long as mankind continue to pay “national debts,” so-called — that is, so long as they are such dupes and cowards as to pay for being cheated, plundered, enslaved, and murdered — so long there will be enough to lend the money for those purposes; and with that money a plenty of tools, called soldiers, can be hired to keep them in subjection. But when they refuse any longer to pay for being thus cheated, plundered, enslaved, and murdered, they will cease to have cheats, and usurpers, and robbers, and murderers and blood-money loan-mongers for masters.
Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.
Natural Law and Natural Rights
By James A. Donald
Natural law and natural rights follow from the nature of man and the world. We have the right to defend ourselves and our property, because of the kind of animals that we are. True law derives from this right, not from the arbitrary power of the omnipotent state.
Natural law has objective, external existence. It follows from the ESS (evolutionary stable strategy) for the use of force that is natural for humans and similar animals. The ability to make moral judgments, the capacity to know good and evil, has immediate evolutionary benefits: just as the capacity to perceive three dimensionally tells me when I am standing on the edge of a cliff, so the capacity to know good and evil tells me if my companions are liable to cut my throat. It evolved in the same way, for the same straightforward and uncomplicated reasons, as our ability to throw rocks accurately.
Natural law is not some far away and long ago golden age myth imagined by Locke three hundred years ago, but a real and potent force in today’s world, which still today forcibly constrains the lawless arrogance of government officials, as it did in Dade county very recently.
The opponents of natural rights often complain that the advocates of natural rights are not logically consistent, because we continually shift between inequivalent definitions of natural law. They gleefully manufacture long lists of “logical contradictions”. Indeed, the definitions we use are not logically equivalent, but because of the nature of man and the nature of the world, they are substantially equivalent in practice. These complaints by the opponents of natural rights are trivial hair splitting, and pointless legalistic logic chopping. It is easy to imagine in principle a world where these definitions were not equivalent. If humans were intelligent bees, rather than intelligent apes, these definitions would not be equivalent, and the concept of natural law would be trivial or meaningless, but we are what we are and the world is what it is, and these definitions, the definitions of natural law, are equivalent, not by some proof of pure reason, but by history, experience, economics, and observation.
In this paper I have used several different definitions of natural law, often without indicating which definition I was using, often without knowing or caring which definition I was using. Among the definitions that I use are:
- The medieval/legal definition: Natural law cannot be defined in the way that positive law is defined, and to attempt to do so plays into the hands of the enemies of freedom. Natural law is best defined by pointing at particular examples, as a biologist defines a species by pointing at a particular animal, a type specimen preserved in formalin. (This definition is the most widely used, and is probably the most useful definition for lawyers)
- The historical state of nature definition: Natural law is that law which corresponds to a spontaneous order in the absence of a state and which is enforced, (in the absence of better methods), by individual unorganized violence, in particular the law that historically existed (in so far as any law existed) during the dark ages among the mingled barbarians that overran the Roman Empire.
- The medieval / philosophical definition: Natural law is that law, which it is proper to uphold by unorganized individual violence, whether a state is present or absent, and for which, in the absence of orderly society, it is proper to punish violators by unorganized individual violence. Locke gives the example of Cain, in the absence of orderly society, and the example of a mugger, where the state exists, but is not present at the crime. Note Locke’s important distinction between the state and society. For example trial by jury originated in places and times where there was no state power, or where the state was violently hostile to due process and the rule of law but was too weak and distant to entirely suppress it.
- The scientific/ sociobiological/ game theoretic/ evolutionary definition: Natural law is, or follows from, an ESS for the use of force: Conduct which violates natural law is conduct such that, if a man were to use individual unorganized violence to prevent such conduct, or, in the absence of orderly society, use individual unorganized violence to punish such conduct, then such violence would not indicate that the person using such violence, (violence in accord with natural law) is a danger to a reasonable man. This definition is equivalent to the definition that comes from the game theory of iterated three or more player non zero sum games, applied to evolutionary theory. The idea of law, of actions being lawful or unlawful, has the emotional significance that it does have, because this ESS for the use of force is part of our nature.
Utilitarian and relativist philosophers demand that advocates of natural law produce a definition of natural law that is independent of the nature of man and the nature of the world. Since it is the very essence of natural law to reason from the nature of man and the nature of the world, to deduce “should” from “is”, we unsurprisingly fail to meet this standard.
The socialists attempted to remold human nature. Their failure is further evidence that the nature of man is universal and unchanging. Man is a rational animal, a social animal, a property owning animal, and a maker of things. He is social in the way that wolves and penguins are social, not social in the way that bees are social. The kind of society that is right for bees, a totalitarian society, is not right for people. In the language of sociobiology, humans are social, but not eusocial. Natural law follows from the nature of men, from the kind of animal that we are. We have the right to life, liberty and property, the right to defend ourselves against those who would rob, enslave, or kill us, because of the kind of animal that we are.
Law derives from our right to defend ourselves and our property, not from the power of the state. If law was merely whatever the state decreed, then the concepts of the rule of law and of legitimacy could not have the meaning that they plainly do have, the idea of actions being lawful and unlawful would not have the emotional significance that it does have. As Alkibiades argued, (Xenophon) if the Athenian assembly could decree whatever law it chose, then such laws were “not law, but merely force”. The Athenian assembly promptly proceeded to prove him right by issuing decrees that were clearly unlawful, and with the passage of time its decrees became more and more lawless.
The Greeks could see that we could recognize actions as inherently lawful or unlawful, without the need of the state to tell us. (They had lived through some excellent examples of lawless states.) But how is it that we know? They came out with an astonishingly modern answer, a line of reasoning that we would now call sociobiological.
Aristotle and others argued that each kind of animal has a mental nature that is appropriate to its physical nature. All animals know or can discover what they need to do in order to lead the life that they are physically fitted to live. Thus humans are naturally capable of knowing how to live together and do business with each other without killing each other. Humans are capable of knowing natural law because, in a state of nature, they need to be capable of knowing it.
This theory was demonstrated rather successfully in the “Wild West”, which history shows was not nearly as wild as many modern cities with strict gun control. Beyond the reach of state power, property rights existed, businesses functioned. (Kopel, 323 -373)
Modern sociobiology uses the phrase “social animal” to mean what Aristotle meant by “political animal” and what Thomas meant by “political and social animal”. In modern terminology, ants and bees are “eusocial” which means “truly social”. Humans, Apes, and wolves are “social”.
The problem of “how do we know natural law” is no different from the other problems of perception. The arguments used by those that seek to prove that we cannot know natural law, therefore natural law does not exist, are precisely the same as the arguments that we cannot know anything, therefore nothing exists, and many notable philosophers, such as Berkeley and Bertrand Russell, who started out arguing that natural law does not exist ended up concluding exactly that – that nothing exists.
Philosophers usually try to reason from reason alone, as is done in mathematics, though it was long ago proven that this cannot be done, except in mathematics, and perhaps not even there.
To draw conclusions about the world one must look both without and within. Like the chicken and the egg, observation requires theory and observation leads to theory, theory requires observation and theory leads to observation. This is the core of the scientific method, in so far as the scientific method can be expressed in words.
Natural law derives from the nature of man and the world, just as physical law derives from the nature of space, time, and matter.
As a result most people who are not philosophers or lawyers accept natural law as the ultimate basis of all law and ethics, a view expressed most forcibly in recent times at the Nuremberg trials. Philosophers, because they often refuse to look at external facts, are unable to draw any conclusions, and therefore usually come to the false conclusion that one cannot reach objectively true conclusions about matters of morality and law, mistaking self imposed ignorance for knowledge.
Although many philosophers like to pretend that Newton created the law of gravity, that Einstein created general relativity, this is obviously foolish. Universal gravitation was discovered, not invented. It was discovered in the same way a deer might suddenly recognize a tiger partially concealed by bushes and the accidental play of sunlight. The deer would not be able to explain in a rigorous fashion, starting from the laws of optics and the probabilities of physical forms, how it rigorously deduced the existence of the tiger from the two dimensional projections on its retina, nonetheless the tiger was there, outside the deer, in the objective external world whether or not the deer correctly interpreted what it saw. The tiger was a discovery, not a creation, even though neither we nor the deer could prove its existence by formal logic. And proof of its concrete external existence is the fact that if the deer failed to recognize the tiger, it would soon be eaten.
A determined philosopher could obstinately argue that the perception of the tiger was merely an interpretation of light and shadow (which is true), that there is no unique three dimensional interpretation of a two dimensional image (which is also true), and that everyone is entitled to their own private and personal three dimensional interpretation (which is false), and would no doubt continue to argue this until also eaten. Something very similar to this happened to a number of philosophers in Cambodia a few years ago.
Natural law was discovered (not invented, not created, discovered) by the stoic philosophers. This was the answer (not their answer, the answer) to the logical problems raised by Socrates. The doctrines of the stoics were demonstrated successfully by experiment, but political circumstances (the Alexandrine empire and then the Roman empire) prevented a clear and decisive experiment.
Frequently politicians or revolutionaries use natural law theory, or some competing theory to create institutions. Such cases provide a powerful and direct test of theories. Advances in our understanding of natural law have come primarily from such experiments, and from the very common experience of the breakdown or forcible destruction of state imposed order.
The bloody and unsuccessful experiment of Socrates disciple, Critias, showed that the rule of law, not men, was correct. This renewed the question “What law, who’s law.” Not all laws are arbitrary, there must be laws universally applicable, because of the universal nature of man. Laws governing human affairs, or at least some of those laws, must derive from some objective and external reality, not subject to the arbitrary will of the ruler or the people. If this was not so, then it would be impossible to make an unlawful law. Any law duly decreed by a legitimate ruling body, such as the Athenian assembly, would necessarily be lawful, yet history shows that this was obviously false. Some laws are clearly unlawful. Proof by contradiction.
“There is in fact a true law – namely, right reason – which is in accordance with nature, applies to all men, and is unchangeable and eternal.” (Cicero) Cicero successfully argued before a Roman court that one of the laws of Rome was unlawful, being contrary to natural law, creating a legal precedent that held throughout the western world for two thousand years. Although it was frequently violated, it was rarely openly rejected in the West until the twentieth century.
The arguments and reasoning of the Stoics were generally accepted, but not thoroughly put into practice and therefore not vigorously tested, for over a thousand years.
A philosopher can choose to disbelieve in Newton’s laws, but this will not enable him to fly. He can disbelieve in natural law, but political and social institutions built on false law will fail, just as a bridge built on false physical law will fall, just as the deer that does not notice the tiger gets eaten, just as the Marxist philosophers who voluntarily returned to Cambodia to aid the revolution were for the most part murdered or tortured to death by the revolutionaries. The most extreme failure in recent times was the attempt of the Cambodian government to increase the rice harvest by central direction of irrigation, also known as “the Cambodian Autogenocide”.
During the dark ages, the knowledge of natural law, like much other ancient knowledge, was kept alive by the church. This knowledge proved very useful. Hordes of armed refugees wandered this way and that, thus tribal and customary law was often inadequate for resolving disputes. Sometimes a king would rise up and impose his peoples customary law on everyone around, but such kings came and went, and their laws and institutions faded swiftly.
In those days the church persistently and rightly claimed that natural law was above customary law, and that customary law was above tribal law and the law of the kings (fiat law). Natural law was taught in the great Universities of Oxford, Salamanca, Prague, and Krakow, and in many other places.
In England the theory of natural law led to the Magna Carta, the Glorious Revolution, the declaration of right, and the English Enlightenment. It was the basis for the US revolution and the US bill of rights.
The next major advance in our knowledge of natural law after the dark ages came with the Dutch republic. The success of this experiment is almost as illuminating as the failure of Critias. The failure of Critias showed that the rule of law, not men was correct. The success of the Dutch Republic showed that the medieval understanding of natural law was sufficiently accurate.
The long revolution by the Dutch against Spain obliterated or gravely weakened those people and institutions responsible for enforcing customary law and fiat law, and little was done to replace these institutions for two generations. But it is everyone’s right and duty to forcibly uphold natural law, thus in order to get a law enforced, or to get away with enforcing it oneself, ones lawyer had to argue natural law, rather than customary law. Thus the Netherlands came to be governed predominantly by natural law, rather than by men or by customary law.
Society ran itself smoothly. This showed that natural law was complete and logically consistent. Of course since natural law is external and objective it has to be complete and consistent, but our understanding of natural law is necessarily incomplete and imperfect, so our understanding of it might have been dangerously incomplete, inconsistent, or plain wrong. The experience of the Dutch strongly supports the belief that our understanding of natural law, the medieval theory of natural law as interpreted by medieval lawyers, is fairly close to the truth. If natural law was just something that somebody made up out of their heads, it would not have worked. Internal inconsistencies would have lead to conflicts that could not be resolved within natural law, requiring the man on horseback to apply fiat law or customary law to resolve them. Incompleteness would have lead to unacceptable lawless behavior. None of this happened, powerful evidence that natural law is not just something invented, but something external and objective that we are able to perceive, like the tiger, like the law of gravity.
For a long time people advocated natural law merely because they thought that if people pretended to believe it, it would lead to less bloodshed and other desirable consequences, and no great effort had been applied to the assumptions and methods of natural law theory. Now people started to advocate natural law because they had convincing evidence that our understanding of it was true. Thus came the English enlightenment, John Locke and Adam Smith.
John Locke made a major advance to our understanding of natural law, by emphasizing the nature of man as a maker of things, and a property owning animal. This leads to a more extensive concept of natural rights than the previous discussions of natural law. From the right to self defense comes the right to the rule of law, but from the right to property comes a multitude of like rights, such as the right to privacy “An Englishman’s home is his castle.” Further, Locke repeatedly, in ringing words, reminded us that a ruler is legitimate so far as he upholds the law.
A ruler that violates natural law is illegitimate. He has no right to be obeyed, his commands are mere force and coercion. Rulers who act lawlessly, whose laws are unlawful, are mere criminals, and should be dealt with in accordance with natural law, as applied in a state of nature, in other words they and their servants should be killed as the opportunity presents, like the dangerous animals that they are, the common enemies of all mankind.
John Locke’s writings were a call to arms, an assertion of the right and duty to forcibly and violently remove illegitimate rulers and their servants.
This provided the moral and legal basis for many great revolutions, and many governments. After the American revolution the North Americans were governed more or less in accordance with natural law for one hundred and thirty years.
John Locke was writing for an audience that mostly understood what natural law was, even those who disputed the existence and force of natural law knew what he was talking about, and they made valid and relevant criticisms. In the nineteenth century people started to forget what natural law was, and today he is often criticized on grounds that are irrelevant, foolish, and absurd.
Today many people imagine that natural law is a code of words, like the code of Hammurabi, or the twelve tables, written down somewhere, on the wall of an ancient Greek temple, or some medieval vellum manuscript, perhaps revealed by God or some divinely illuminated prophet. Then when they find that no such words exist, no such prophets are recorded, they say there is no such thing as natural law, because no one wrote down what it was.
Natural law is a method, not a code. One does not reason from words but from facts. The nearest thing to a written code of natural law is the vast body of natural law precedent. But a precedent only applies to similar cases, and is thus rooted in the particular time and circumstances of the particular case, whereas natural law is universal, applying to all free men at all times and all places.
In the middle ages the Medieval scholars defined natural law in a deliberately circular fashion. There was “Ius Divinum”, “Ius Commune”, and “Ius Naturale”. “Ius Divinum” means, more or less, the divinely revealed will of God. “Ius Commune” means, more or less, the long established customary law of nations, peoples, and states that are generally regarded as reasonably civilized.
Note that “Ius Naturale” does not derive from the customs of civilized peoples. Instead it provides with a ground on which to judge which peoples are civilized. It does not derive from the divinely revealed will of God. It provides us with a ground to judge the plausibility of claims of divine revelation concerning the will of God.
“Ius Naturale” is the law applicable to men in a state of nature. It precedes religions and kings both in time and in authority. “Ius Naturale” does not derive directly from the will of God. As Hugo Grotius pointed out in the early seventeenth century, even if there was no God, or if God was unreasonable or evil, natural law would still have moral force, and men would still spontaneously back it with physical force. God could not create men as they are, and at the same time make natural law other than what it is. A God that claimed to do that would be a mere tyrant, unworthy of worship.
Natural law derives from the method and approach then called natural philosophy. For thousands of years advocates of natural law would start with what is now the standard rationale for sociobiology, by pointing out how the wolf and the deer each have natures and inclinations appropriate for the kind of life they needed to live and to take proper care of their offspring. Today, in the language used by modern sociobiologists natural law is the ESS (Evolutionary Stable Strategy) for the use of force, employed by our species and by like species, applied by us by means of reason to problems and circumstances that confront us today. In older language, it comes from the tree of knowledge, which made us as gods.
Although natural law is an integral part of Christianity, at least of the Christianity of Thomas and Locke, Christianity is not an integral part of natural law. If you went through Locke’s second treatise of Civil Government and substituted the phrase “chance and necessity” for the phrases “divine providence” and “judgment of heaven”, there would not be any great change in the meaning or force of his argument.
Many of the key themes of modern sociobiology first appeared in Locke’s treatises on government, for example Second Treatise §79-81, First Treatise §56-57. Some parts of the second treatise are often consciously or unconsciously echoed on Public Broadcasting System nature and science videos whenever they discuss the family lives and social interactions of non human animals.
Locke and the other Christian advocates of natural law believe that natural law is in accordance with the will of God not because they claim a divine revelation concerning the will of God, but because they believe that the nature of man and the world reflects the will of God.
The stoics and Grotius believed in a universe governed by chance and necessity, with a God that created things, but refrained from subsequent interference. Thomas and Locke believed in a universe that reflects the continuing will of God. It makes little difference. The stoics and Saint Thomas Aquinas started from the same facts and came to the same conclusions from those facts. They merely used slightly different language to describe their reasoning.
Throughout most of our evolution, men have been in a state of nature, that is to say. without government, hierarchically organized religion, or an orderly and widely accepted means of resolving disputes. For the past four or five million years the capacity to discern evil lurking in the hearts of men has been an even more crucial survival capability than the capacity to discern tigers lurking in shadows.
The primary purpose of this capability was to guide us in who we should associate with, (so as to avoid having our throats cut in our sleep), who we should make alliance with (to avoid betrayal), who we should trade with, (to avoid being cheated), who we should avoid, who we should drive away, and who, to make ourselves safe, we should kill.
It would frequently happen that one man would, for some reason good or bad, use violence against another. When this happened those knowing of this event needed to decide whether it indicated that the person using force was brave and honorable, hence a potentially valuable ally, or foolish and eager for trouble, hence someone to be avoided, or a dangerous criminal, hence someone to be driven out or eliminated at the first safe opportunity to do so. Such decisions had to be made from time to time, and making them wrongly could be fatal, and often was fatal.
A secondary purpose of this capability was to guide us in our own conduct, to so conduct ourselves that others would be willing to associate with us, ally with us, do deals with us, and would refrain from driving us away or killing us.
Not all things that are evil, or contrary to nature, are violations of natural law. Violations of natural law are those evils that may rightly be opposed by force, by individual unorganized violence.
The Medievals took for granted that natural law was morally and legally binding on freeholder, Emperor and Pope alike, and during the dark ages and for a little time after, men often attempted to enforce natural law against the Holy Roman Emperor, and these attempts were sometimes successful. On one occasion the Holy Roman Emperor was briefly imprisoned for debt by an ordinary butcher, locked up with the beef and mutton, and held by the butcher until the bill was paid, and this action was mostly accepted as lawful and proper, though such actions were safer against some emperors than others.
The definition of natural law that I have just given is similar to that used in the middle ages, but this definition is not obviously scientific. It fails to show that natural law is legitimately part of science. To show that the study of natural law is part of science – part of sociobiology, it is necessary to restate the definition in the same value free, game theoretic, terminology that Reeve & Nonacs would use to describe the social contract in wasps.
Here follows a definition of natural law in properly scientific terms, value free terms:
An act is a violation of natural law if, were a man to commit such an act in a state of nature, (that is to say, in the absence of an orderly and widely accepted method of resolving disputes), a second man, knowing the facts and being a reasonable man, would reasonably conclude that the first man constituted a threat or danger to the second man, his family, or his property, and if a third man, knowing the facts and being a reasonable man, were to observe the second man getting rid of the first man, the third man would not reasonably conclude that the second man constituted a threat or danger to third man, his family, or his property.
Note that in order to define natural law in a value neutral fashion we require three people, not two.
This is well illustrated in the recent events in Dade county, Florida (September – October 1992, three months before I wrote this), where property holders gave other property holders guns in the well founded expectation that those guns would be used to prevent, rather than to facilitate, unlawful transfers of property. To define natural law in Dade county you would need one looter or one corrupt official, and two home owners. In value free language, one Dade county home owner and one corrupt official is a property dispute. Two Dade county home owners and one corrupt official is natural law in action. Two Dade county home owners with nobody bothering them is spontaneous order, and of course part of the definition of spontaneous order is that it is a stable order that arises spontaneously from the action of natural law.
The scientific definition is equivalent to the medieval definition because of the nature of man and the nature of the world. The two definitions are equivalent for our kind of animal, because if someone uses violence properly, and reasonably, he does not show himself to be dangerous to a reasonable man, but if someone uses violence improperly, he shows himself to be a danger. This is obvious by direct intuition, and there is also overwhelming historical evidence for this fact. For example compare the American revolution with the Russian or Cambodian revolution. The surviving American revolutionaries prospered. The communist revolutionaries were soon executed by their new masters. Almost everyone who played a significant role in the 1917 revolution was executed or died from brutal mistreatment.
The varying definitions of natural law are clearly consistent on the issue of individual violence. On the topic of collective violence, the questions of what are just grounds for making war, how may a just war be conducted, and what may a just victor do with an unjust loser, the various definitions of natural law often seem cloudy and contradictory. There are two reasons for this apparent cloudiness. One is that there is no natural definition of a collective entity, so it all depends on what gives the collective entity its substance and cohesion, how the individual is a participant in the acts of the collective entity. The Nuremberg trials contain extensive discussions of this point. The other reason is that there is a large difference between what the victor should do and what the victor may lawfully do. The victor should be magnanimous and lenient, as at Nuremberg, but may lawfully be strict and harsh. On the questions that most commonly arise in practice, all the different definitions of natural law give clear, consistent and straightforward answers: The usual reason for war is that one group defines another group as enemy, and then uses organized collective violence to seize the property of the members of that group, and to enslave or kill them. In such case it is open season on the aggressor because they constitute a clear danger to their neighbors. In a just war it lawful to napalm bomb enemy civilians in a defended city, though not to intentionally target enemy civilians, unlawful to bombard an open city, and unlawful to massacre prisoners under any circumstances, though individual prisoners may be executed for broad reasons. It is sometimes lawful to refuse to take prisoners, depending on the circumstances. The contradictions usually evaporate when we ask the questions that we are actually interested in, about the kind of situations that actually occur in practice. Arguments about whether a given military action was in accordance with the laws of war usually involve appeal to the facts, and arguments about the intentions and capabilities of the combatants, rather than appeal to differing concepts of the laws of war, indicating that our uncertainty concerning the laws of war is less than other sources of uncertainty.
When we apply the value free theory of iterated non zero sum two player games to the value free theory of evolution we get such value loaded concepts as trust, honor, and vengeance (Barkow, Cosmides and Tooby). In the same way, when we apply the value free theory of iterated three player non zero sum games we get such value loaded concepts as natural law.
Natural law theory is a valid part of science, because any n person natural law statement about values can be expressed as an explicitly scientific, value free statement about rational self interest, evolution, and n + 1 player game theory. It is also a valid part of the study of law and economics
In many fields of academia, straying in the direction of consideration natural law is apt to make your grants dry up, perhaps natural law theory tends to delegitimize most grant giving authorities.
Those academics who study sociobiology have been a little braver, perhaps because those who work in the hard sciences are sometimes better at looking after their own, or, as in the case of E.O. Wilson, they simply did not realize they were poking a hornets nest. Also hard science people sometimes seem to be tougher, more obstinate, stubborn, and intransigent than fuzzies.
Hobbes Criticism of natural law
The existence and force of natural law has been continually disputed by those who claim that the state should exercise limitless power over individuals.
Early in the seventeenth century Thomas Hobbes argued that the nature of man was not such that one could deduce natural law from it, or rather he argued that the natural law so deduced placed no important limits on the power of the ruler to do as he pleased, to remake society as he wished, that social order was purely a creation of state power.
Hobbes claimed that in a state of nature, it is a war of all against all, and life is “poor, solitary, nasty, brutish, and short”. This of course is a direct contradiction of the usual natural law argument that man is a social animal, adapted by nature to live mostly peaceably with his fellow men, and do business with them quietly.
Therefore, Hobbes argued, the state is entitled to unlimited power, and right is whatever the state, through its laws, says is right, and wrong whatever the state says is wrong. An “unjust law” is a contradiction in terms because the will of the state is itself the standard of justice, thus the ruler can do no wrong. The ruler is answerable to God, but everyone else is answerable only to the ruler.
Hobbes saw rights as a creation of state power: Therefore, in order that we might have more and better rights, state power should be as absolute and total as possible. The state should pervade and dominate every relationship in order to provide everyone with justice and rights, and suppress any form of association that it does not create and control, and the state should silence any criticism of its absolute power (so that we might be more free).
“Another infirmity of a Commonwealth is the immoderate greatness of a town, […] also the great number of corporations, which are as it were many lesser Commonwealths in the bowels of a greater, like worms in the entrails of a natural man. To which may be added, liberty of disputing against absolute power by pretenders to political prudence; which though bred for the most part in the lees of the people, yet animated by false doctrines are perpetually meddling with the fundamental laws, to the molestation of the Commonwealth, like the little worms which physicians call ascarides.”
There are some people who read Hobbes, like his reasoning, like some of his conclusions, and discard the conclusions that the twentieth century has shown to be catastrophic. This is inconsistent. If you agree with his assumption that man is not a social animal, then his conclusion that the institutions of a totalitarian state are necessary and desirable, are necessary for people to be free, follows logically.
Hobbes is often called the first atheistic political philosopher. This statement is misleading. There were plenty of political philosophers before Hobbes who had little use for religion, or were hostile towards Christianity, and made little pretense of Christianity. Hobbes was, or pretended to be, a conventional Christian. What made Hobbes different is that he saw religion as a threat to the moral omnipotence of the state. Hobbes argued that subjects of Leviathan should submit not merely their actions but “their Wills, every one to his Will, and their Judgments to his Judgment.” Hobbes’s Leviathan was to define the meaning of all words, including, indeed especially, the meaning of the words good and evil. Thus Hobbes’s state was to be God, and man could have no other gods before the god of the state. What made Hobbes different is not that he was cynical about Christianity (there were many political philosophers before him more cynical than he) but that he was the first in the sophist tradition to propose what Plato had proposed: to divert religious impulses towards the state, as was eventually done on a large scale during the twentieth century, most vigorously in Nazi Germany and in the Communist countries.
Hobbes claim that in the state of nature life is “solitary, poor, nasty, brutish, and short” can be observed to be false. It is true that during the dark ages, spontaneous order often failed, with bloody consequences, but even a few examples of spontaneous order suffice to demonstrate the existence and force of natural law, just as any number of non tigers cannot disprove the existence of tigers, but two tigers are sufficient to prove existence. In fact a state of nature is very rarely the war of all against all, as Locke pointed out. Spontaneous order held much more often than it failed. Natural law was the norm, both morally and in practice. Of course was not effective all the time, but it was effective often enough that its existence is an indisputable fact. Hobbes history was simply wrong. He took the dramatic events of history, and ignored the commonplace, and treated the dramatic events as the norm. In addition, those dramatic and bloody breakdowns of order that did happen during the dark ages were often the result of armies of refugees fleeing the lawless and criminal activities of states.
Hobbes also argued that even if men know what is just, they will not always do what is just, and that this will often lead to war. This is of course true, but that argument does not lead to the conclusion that men should submit to absolute power. Quite the contrary. As Locke argued, and as the twentieth century dramatically showed, inequality of power does not lead to less use of unjust force, but to greater use of unjust force. Human wickedness is an argument for liberty, not an argument for absolute forms of government.
This argument is no longer used by the modern successors of Hobbes. To conclude for absolutism, it is necessary to argue, as Hobbes argued, that men *cannot* know what is just use of force, and must be provided with an arbitrary definition of justice by some authority possessing a single will, as Hobbes argued. To argue for absolutism from human evil, as both Hobbes and De Maistre also argued, is foolish, and these days nobody makes that argument, regardless of their political persuasion.
If the war of all against all occurs because men cannot know what use of force is just, then indeed law is a creation of the state, as Hobbes argued, and the state is above the law, as Hobbes argued, and social cohesion derives from the will of the ruler, as Hobbes implied. But if violent conflict occurs because of simple uncomplicated evil acts by evil men, then his arguments are invalid, and the arguments of Bastiat and Locke apply — law is collective self defense, thus the state must govern under law, it is not the source of law. The state cannot justly use force in ways that would be illegitimate for an individual in a state of nature. Social cohesion derives from arrangements to ensure that people apply retributive force justly and that the use of such force can be seen to be just, what nineteenth century people called “due process and the rule of law&”. Social cohesion does not derive from a single central will, contrary to Hobbes arguments and assumptions.
The right to bear arms
During the seventeenth and eighteenth centuries natural law was accepted in men’s heads and in courts of law, as it always has been accepted in men’s hearts. The advocates of absolutism were defeated, first intellectually, then politically, and then by force of arms. Kings who claimed to rule by divine right were killed or forced to flee.
The Glorious Revolution of 1688 guaranteed an Englishman’s right to bear arms (a right now lost), and more importantly, prohibited the state from using what we would now call a police force. The people were armed, state was unarmed. Individuals, not the state or the mob, applied lawful force when needed. This worked well, disproving the doctrine of monopoly of force, which derives from the absolutists, notably Hobbes.
In the medieval period the state had never had a large role in maintaining order. Often it was a source of disorder. The Glorious Revolution eliminated its role in enforcement for about two hundred years, while legitimizing its role in judgment.
In a society where there is pluralistic use of force, there needs to be respect for natural law, and natural rights, in order to avoid strife and civil war. Similarly a belief in natural rights tends to result in pluralistic use of force, because people obviously have the right to defend their rights, whereas disbelief in natural rights tends to lead to an absolute monopoly of force to ensure that the state will have the necessary power to crush peoples rights and to sacrifice individuals, groups, and categories of people for the greater good. Conversely a monopoly of force leads to the denial of natural rights (by making it safe and profitable to disregard natural rights) and the disregard of natural rights necessitates a monopoly of force to avoid frequent violent conflict.
For a society where there is plurality of force to work peaceably and well, there needs to be both respect for natural rights and also a substantial number of people with a strong vested interest in the rule of law.
A yeoman was the lowest rank of landowner, one who worked his own land or his families land, in modern terminology a peasant farmer. A villain was a sharecropper, a farmer with no land of his own, semi free, more free than a serf, though not directly equivalent to the modern free laborer. Naturally yeomen had a strong vested interest in the rule of law, for they had much to lose and little to gain from the breakdown in the rule of law. Villains had little to gain, but less to lose. People acted in accordance with their interests, and so the word yeoman came to mean a man who uses force in a brave and honorable manner, in accordance with his duty and the law, and villain came to mean a man who uses force lawlessly, to rob and destroy.
In practice free societies only arose where there was no monopoly of force, the most notable and important examples being seventeenth century England and eighteenth century North America. England, in the late seventeenth and early eighteenth centuries, exemplified the medieval ideal of liberty under law, and Kingly rule under law. In the English speaking world, government started to display disregard for natural rights about fifty years after they introduced a police force, about the time that people took power who had grown up in a state where police enforced the law
The best present day example of a society with strong social controls and weak government controls, a society with plurality of force, is Switzerland. (Kopel, p278- 302) In peacetime the Swiss army has no generals, no central command. Everyone is his own policeman. By no coincidence Switzerland is also the best modern example of the right to bear arms. Almost every house in Switzerland contains one or more automatic weapons, the kind of guns that the American federal government calls “assault rifles with cop killer bullets”. Switzerland has strict gun controls to keep guns out of the hands of children, lunatics and criminals, but every law abiding adult can buy any kind of weapon. Almost every adult male owns at least one gun, and most have more than one, because of social pressures and the expectation that a respectable middle class male citizen should be well armed and skillful in the use of arms. It is also no coincidence that respect for property rights in Switzerland is amongst the highest in the world, possibly the highest in the world. Switzerland also has lower tax levels than any other industrialized country.
Today the state is losing cohesion and its ability and willingness to maintain order and enforce the law is visibly diminishing. We can once again expect to see armed conflict between the modern equivalent of villains and yeomen. Indeed we are already seeing it. The recent L.A. riots (April 1992, eight months ago as I write this) are often described as a race riot, and to some extent they were. Yet there was as much violence by unpropertied Mexicans attacking Mexicans possessing small businesses, as there was violence by unpropertied blacks attacking Koreans possessing small businesses. Black shop owners had their shops looted and burnt by blacks in the same way as Korean shop owners had their shops looted and burnt by blacks. This was an attack by villains on yeomen, caused by the flight of the police, and only partially a black versus Korean race riot.
Civil Society and the State
Plainly, some kinds of society are more natural than others. When the state attempts to impose an unnatural form of society, it requires a large amount of coercive violence to impose this form, and the state undermines its own cohesion in the process.
At the time that Locke wrote, natural law was about to become customary law, because the state was disarmed and the people armed. For the most part the common law of Locke’s time was already consistent with natural law, but on some matters judges had to perform contortions to render the form of common law consistent with the substance of natural law. Much common law came from Roman law, and the law of the late roman empire was often quite contrary to natural law. Freedom of association is a right under natural law, a crime under Roman law. Under the law of the roman empire any association not compulsory was forbidden. In order to avoid repudiating roman law without violating natural law, the English courts had to perform elaborate contortions, and today the 59th sole prerogative of the holy roman emperor still lives on in America, in the form of the concession theory, which holds that a corporation is a part of the state, a portion of state power in private hands. This bizarre and convoluted legal fiction is highly inconvenient for businessmen, vastly lucrative for lawyers, and is a dangerously potent weapon in the hands of irresponsible bureaucrats and lawless judges.
Under the code of Justinian a corporation is a fictitious person created by the fiat of the holy roman emperor. Under natural law a trust is created by the promises that the officers of the trust make to it. (In the Latin of the early dark age “trustis” meant “band of comrades”.)
Hobbes argued that what we would now call civil society was nonexistent, or should not exist, or existed only by the fiat of the state. He argued that voluntary and private associations should be suppressed, as a threat to the power of the state, and hence a threat to order, or should only exist as part of the apparatus of the state.
Locke argued that the legitimate authority of the state was granted to it by civil society, that the state existed by the power of civil society, that this was its source of power morally and in actual fact.
Until the twentieth century Locke’s position was widely accepted as self evident. When the state was unarmed and the people armed, as in eighteenth century England and America, it was indeed self evident. During the nineteenth century the utilitarians and the absolutists argued that the state derived its power from its capacity for large scale force, and only that, and that in order to impose the greater good on reluctant groups and individuals the state should have a total and absolute monopoly of all force. They therefore argued that the power and authority of the state came from force alone, and should come from force alone, that the state did not derive its substance from the civil society, that what appeared to be private and voluntary associations in reality derived their cohesion from the power of the state, and therefore the state could and should remake them as it willed, that contracts derived their power from the coercion of the state, not from the honor of the parties to the contract, and therefore the state could decide what contracts were permissible, and had the power and the right to remake and change existing contracts.
In the twentieth century this view came to widely accepted. People came to believe that civil society only existed by fiat of the state, that the state existed because its army and police were armed, and the people were unarmed, that the state existed by force. Even people who loved freedom, such as Hayek, reluctantly accepted this idea as true.
During decolonization the U.N. created governments in accordance with this false idea, the idea that all a state required to exist was firepower superior to that of private citizens, and that with superior firepower it could create a civil society, if needed, by fiat. The newly created governments attempted to remake or eliminate civil society in accordance with this false idea.
As a result of this false idea, in the third world and in the former soviet empire, a number of governments have collapsed or are close to collapse. Leviathan derives his cohesion from civil society, Without a strong civil society the police, the army, the bureaucracy and the judiciary tend to dissolve into a mob of individual thieves and hoodlums, each grabbing whatever he can, and destroying whatever he cannot. It is civil society that holds the state together. The state does not hold civil society together. Civil society is not a creation of the state. The state is a creation of civil society.
Locke has been proven right, Hobbes proven wrong, by an experiment much vaster and bloodier than that of Critias, but equally clear and decisive.
Many states have attempted to use something other than the civil society to provide the glue that hold them together, to provide them with the cohesion they need. Some have succeeded for a time, usually by using religion or the personal charisma of the leader in place of civil society. Those rulers that succeeded in using these substitutes put very great effort into their substitutes, showing that they were conscious of the weakness of their building materials, and, more importantly, showing that they were conscious that the state cannot hold itself together. It must be held together by something external to itself. It cannot give order to the rest of society, it must be given order by something outside itself.
Rulers that use something other than civil society to provide cohesion for their states are in practice a danger to their neighbors, and an even greater danger to their subjects. For this reason civil society is the only legitimate material from which a state may be made. A state based on something else is illegitimate. The neighbors of such states rightly and reasonably regard themselves as threatened, and so they should seek, and for the most part they have sought, to undermine, subvert, corrupt, and destroy such states, and to assassinate their rulers. History has shown that not only was Locke correct factually, he was also correct morally. Not only are states normally based on civil society, they should based on civil society.
The Soviet Union used the religion of communism to give their state cohesion, while the state obliterated civil society and physically exterminated the kulaks (the Russian equivalent of the English yeoman). When the rulers had faith, they were a danger to their neighbors. When they lost their faith their empire eventually fell, and their statist society is collapsing as I write, showing that democracy without economic liberty is worthless and unworkable, whilst Chile, Taiwan, and Thailand show that economic liberty eventually leads to all other liberties, because most natural rights are derived from the right to property. A civil society can only exist if there is a reasonable degree of economic freedom, if property rights are respected.
Modern opposition to natural law and natural rights.
During the nineteenth century the advocates of limitless state power made a comeback with new rhetoric, (the utilitarians) or the same old rhetoric dressed in new clothes), and in the twentieth century they were politically successful, but militarily unsuccessful.
The absolutists keep adopting new names as each old name starts to stink, but in the nineteenth century, the time when they were intellectually most successful, they mostly called themselves romantics, identifying themselves with the then fashionable artistic and cultural movement, although most of the political “romantics” were no more talented at poetry or painting than Hitler was, and most of the real romantics were not political absolutists, far from it. When the fascists came to power these totally disappeared, mostly calling themselves relativists. The name relativist failed to shake the stink of the gas ovens where the Jews were exterminated, and they are changing it yet again. Since the extermination camps set up again, in what used to be Yugoslavia, relativists have almost disappeared. Soon there will be few relativists, they will all be Post Modernists, or some such.
The absolutists argue that because people have different conceptions of what counts as right and wrong. they need a supreme power to forcibly define justice, and without that definition they wind up in conflict.
It logically follows from this that since people tend to create and impose a concept of justice and right by interacting with each other and by forming the associations that constitute civil society, then all of civil society must be subordinated to the ruler, so that his arbitrary and absolute definition of justice shall suppress all others.
By this reasoning every decision where we judge others and act accordingly must be made under the supervision of the state, which means that every aspect of civil society must subordinated to power of the state. (Absolutists phrase it differently, saying that every aspect of society must be provided with a common arbitrary definition of justice by the state, mere men being incapable of knowing the difference)
Hobbes concept of inalienable rights and the fascists concept of natural law is just as logical as the usual concepts of inalienable rights and natural law, indeed more logical. We cannot decide between these two different conceptions of natural law by pure reason, but we can easily decide by appeal to facts.
If disagreement on the nature of good is a common cause of violent conflict, then the absolutists are correct. If violent conflict is almost always a result of ordinary everyday uncomplicated, easily recognizable evil, then natural law is correct.
As Locke pointed out in his essay on toleration, holy wars are not about the true path to salvation, they are just like any other war. A group defines another as enemy, and uses organized violence to steal their land and gold. Their cause is not differing conceptions of the good, but simple uncomplicated evil. Saint Thomas Aquinas pointed out the same thing four hundred years before Locke, though he expressed himself more diplomatically
Disagreement on the nature of the good is only a problem with minor and unimportant matters, not worth fighting over, and when the state is absent or weak, precedent on such matters swiftly becomes customary law. For example on the American frontier conflict consisted of mostly of fair fights conducted more or less in accordance with the code duello, and the rest was mostly straightforward uncomplicated ordinary everyday evil, simple crime, no deep philosophizing required.
The Lex Mercatoria, the customary law governing trade between different jurisdictions, shows that people have from diverse cultures and languages have no great difficulty in agreeing on what is lawful, in order to conduct business with each other. (B.L. Benson, RC Ellickson).
If the state abandons the principle that the law should be general and uniform, and instead concocts a vast multitude of special particular rules, treating one category of person very differently from another, so that one type of property can be seized in one circumstance, and another kind in another circumstance, so that a particular category of person is given a monopoly privilege of some category of business, such as taxi driving and others are excluded or have to work for the privileged and hand over the bulk of their takings to them, then in that case, in the case where generality and uniformity are abandoned, then indeed there can be no agreement – not because men do not know what is just, but because such rules are unjust. When the rules are very particular and non uniform, then the particular groups harmed or benefited by particular rules will come into severe conflict, and this will make it necessary for the state to intervene and supervise in a multitude of matters that should be private matters between one man and another. It will become necessary for the state to take over and supervise civil society in detail.
The more a government violates the principles of uniformity and generality of the law, the more arbitrary and complex its laws become, then the more it comes to resemble an absolutist government, and the more it suffers from problems for which political absolutism appears to be the solution.
Every so often, a ruler such as King James II or Adolf Hitler, attempts to put the theories of the absolutists into effect. The theories and doctrines are immediately seen by their true face, and everyone utterly abhors them.
The absolutists then concoct a new name, and dress their doctrines in new plumage so that they sound like the normal actions of the state to sustain the rule of law, rather than what they truly are, the use of violence by the state to crush the rule of law.
Regardless of the name, and regardless of the rhetorical flourishes used to make the doctrine sound different from what it is, their doctrine remains the same: that justice is whatever courts do, that any law whatsoever is lawful, that right and wrong is what the law says it is and the law is whatever the nation says it is. This is the doctrine of absolutism, and anyone who advocates this doctrine is an absolutist, no matter how many names he thinks up for himself. Because these ideas acquired a bad odor in the seventeenth century, people are always finding new and different ways to express these ideas, so that they sound different, whilst remaining the same, but each new form of expression again acquires a bad odor when some ruler puts it into action.
The doctrine called relativism is the same as seventeenth century absolutism, but the rhetoric that the “relativists” used to defend it sounds superficially like the rhetoric used by the opponents of absolutism, just as the name sounds as if they are opponents of absolutism. In particular, the “relativists” aped John Locke’s Letter concerning Toleration, but where Lock was arguing for the liberty of the citizen, the “relativists” used similar sounding language to argue for the license of nations. The “relativists” opposed Locke, while draping themselves in Lockean symbols.
In the same way the “Post Modernists” use a name that claims that their doctrine is entirely new and unconnected with what went before, and they claim that to examine modern doctrines and compare them to medieval doctrines is a foolish waste of time (“Studying dead white males”), and that one should not compare the current doctrines of “Post Modernists” with the earlier doctrines, even earlier doctrines preached by the same people. When they defend their two thousand year old positions with three hundred old arguments, they liberally decorate their arguments with meaningless and irrelevant references to the latest fashions and newest music stars, so as to give the sound and appearance that these doctrines and arguments are brand new, and absolutely unconnected to earlier doctrines.
The absolutists/ romantics/ relativists/ post modernists continually change their name and plumage in a vain effort to escape their past, but the stink of piles rotting dead lingers on them.
The utilitarians have a more plausible and attractive appearance. They say that any act of force and coercion by the state is proper and lawful if it aims for the greatest good of the greatest number. Sounds pleasant and reasonable, does it not? Such a doctrine would be sound if the world were not what it is. and we were not as we are. It would be a fine doctrine if humans were intelligent bees instead of intelligent apes, but we are not, and it is not.
It is not sensible to ask: How shall “we” act to maximize “our” happiness? This is a nonsense question because individual desires necessarily conflict. The sensible question is: Given that individual desires conflict, how can we avoid too much violence? We can keep the peace collectively. It is impossible to pursue happiness collectively
Utilitarianism has two serious problems, problems that most utilitarians regard as advantages. The idea of the greatest good for the greatest number implies that someone should be in charge, with the authority and duty to sacrifice any one persons property, liberty, and life, for the greater good. It also assumes that a persons good is knowable, and that other people can judge this good for him, make decisions on his behalf, and balance that good with other peoples good. Since any one person is expendable, then there can be no such thing as human rights, as Bentham frankly argued. Clearly the doctrine of the greatest good is going to be highly attractive to those intellectuals who envisage themselves as being in charge of deciding what is good for other people, deciding whose property shall be confiscated for the greater good, who shall be imprisoned for the greater good, or for his own good.
Many people have attempted to construct utilitarian arguments for limiting the authority of the state, most notably John Stuart Mill, but their arguments are always feeble, implausible, strained, and forced. It is even difficult to make a convincing utilitarian argument that rape is unlawful. Feminist utilitarians who attempt to construct utilitarian arguments against rape have been forced to make unreasonable assumptions about males and male sexuality. The “rights” deduced by these convoluted, elaborate, and unconvincing rationalizations are not rights at all, but are akin to what some utilitarians call “positive rights”.
Utilitarian critics of socialism find themselves arguing that socialism leads to slower economic growth, when it is clear that in their hearts what they want to argue is that socialism leads to slavery and lawless violence by the state, but they cannot express the thought within a utilitarian framework, because slavery and lawless state violence are meaningless concepts within utilitarianism.
Utilitarianism contains false implicit assumptions about the nature of man and the nature of society, and these false assumptions lead utilitarians to the absurd conclusion that a good government should create and enforce a form of society that in practice requires extreme coercion and intrusive supervision by a vast and lawless bureaucracy, leading to events and consequences very different to those intended.
What utilitarians mean by society is the exact opposite of “civil society”. Utilitarians continually use phrases like: “Society wants …”, “Society creates this rule in order to …” Utilitarians imagine, consciously or subconsciously that society exists as reified entity, a supreme being capable of itself having desires, ends, and means, capable of consciously planning specific measures to achieve specific desired goals.
This single entity is above the selfish individualism of ordinary mortals, and so rightfully possesses the limitless right to use force and coercion. They imagine that this being would welcome the enforcement of the rules that it commands. If this divine being existed, then utilitarianism would make sense, but there is no such entity.
Actual individual people need no rules to force them to pursue their own ends, and when rules are enforced on them, violating their rights for the sake someone else’s ends, they invariably surprise the utilitarians by vigorously resisting such rules, thus a state that bases its legitimacy and cohesion on utilitarian principles rather than on natural rights and the rule of law, requires a very high level of violence and coercion, violence that tends to constantly increase and become more severe.
The greater good is unknowable because “Society” is not a conscious entity capable of experiencing that good. Attempts to create a simulation of this deity, using elections and like methods, have been seriously unsuccessful. The state tends to behave remarkably as if it was simply a group of mere mortals, men with their own urgent needs and desires, fallible, weak, and prone to evil, pursuing their own personal goods, no different from any other organization.
Plainly therefore the state is just another group of people, and must rightfully be subject to the same law as any other person or group of people. It has no superior right to use force to achieve its goals, and if you grant it such a right, it will in the end result in the loss of your property and in slavery.
“Society” does not exist, rights do exist, not as arbitrary fiats of the state as the utilitarians claim, but inherently as a result of the nature of man. No conflict exists between civil order and individual rights. Both concepts are based on the same fundamental principles.
The real issue is not “what is the nature of good” as utilitarians pretend. The real issue is: Are rights a discovery by individuals that enable them to get along peaceably with other individuals, or are they a creation of a supreme being such as a reified society or reified state, that imposes peace on a vicious multitude with no inherent knowledge of good and evil, thus forcing on them the peace that slaves of a common master possess.
Today instead of frankly arguing that human rights are nonsense, as Bentham did, modern utilitarians use elaborate euphemisms, such as “positive rights” and “positive freedom”. No two people seem to mean the same thing when they make distinction between positive and negative rights and liberties, and their meanings seem to change rapidly from one paragraph to the next. The effect of this supposed distinction is always to destroy the meaning of “liberty” and “right”, and usually to legitimize as slavery as liberty. This supposed concept is mere fog.
Often a “positive right” is in practice the precise opposite of a right. A “negative right” is the right to be left alone, for example “An Englishman’s home is his castle”, “freedom of speech”. A “positive right” is usually a government guarantee that it will supervise, direct, and control you for your own good, for example the “right to employment”, of which Marxists are so fond. (Or used to be fond back in the days when Marxists existed outside American universities.) You will notice that the “right to employment” enjoyed by the workers on Cuban sugar plantations is in practice very similar to the “right to employment” that they enjoyed when they were slaves on those plantations. If they run away from the employment that the benevolent state has so kindly assigned to them, they will be hunted down, and, if captured, returned, beaten, and set to work again. In the same way the “right to employment” enjoyed by the workers on Russian collective farms was very similar to the “right to employment” that they enjoyed on these farms when they were serfs. Of course these modern slaves also have the “right” to a guaranteed fair wage, and so forth. Unfortunately they are not guaranteed that there will be anything in the shops for them to buy with their guaranteed fair wages. Indeed in rural areas they are not guaranteed there will be any shops at all. They are not permitted to go to the shops that the elite goes to, and they are not permitted to travel any significant distance from their place of employment, rendering their “salaries” utterly meaningless. “Positive rights” ape the forms of a free society, without the substance.
Since the fall of communism we have heard less talk about positive rights and positive freedoms. A right is only a right if, as with the rights to life, liberty, and property, you can rightfully use necessary and sufficient force to defend yourself against those who interfere with your exercise of that right. A right is no right at all if it is granted to you by the benevolence of your masters.
Authoritarian utilitarians started by trying to transform the meaning of “good”, and they have continued to try, with some success, to change the meaning of words so as to make it impossible to express thoughts that question the legitimacy and authority of the state. They have partially succeeded with “law”, They are having some success with the word “right”. Thus in America civil rights now means almost the opposite of natural right. For example being for “gay rights” now means that you are opposed to freedom of association. Being in favor of freedom of association is now understood to mean that you are against the right of privacy. It is difficult to express the idea that the state should neither force people to accept homosexuality, nor use force to suppress homosexuality. It is now difficult to express the idea that sexuality is not the proper business of the state, that force and violence is the proper business of the state, not sin or social exclusion. This perversion of the word “rights” makes everything the business of the state, directly contrary to the normal meaning of “right”. Some people today find it very difficult to comprehend the meaning of the ninth amendment, because the language has been so perverted as to make such subversive ideas inexpressible.
The utilitarians have constructed an artificial language in which it is impossible to express such concepts “the rule of law”, “natural rights”, or any idea or fact that would reject the limitless, absolute, lawless and capricious power of the state, and they seek to impose that language on the world.
Utilitarians usually argue in the same way that Marxists and behaviorists argue. They translate any statement you make into utilitarian speak, and then state their translation: “What you are really saying is…”. Since utilitarian speak is incapable of expressing any statement that would contradict the limitless and absolute power of the state, your statements are turned into nonsense, and they then contemptuously point out that what you are saying is nonsense.
How could one express in utilitarian speak the idea that the condemnation orders issued by the government against home owners in Dade county September 1992 were unlawful, that the home owners had the right and the duty to resist attempts to evict them with all force necessary, that their effective and successful resistance was lawful regardless of what pieces of paper the government manufactured? If I attempted to say this in utilitarian speak I would end up saying that the government had not done its paper work correctly, or that government reallocation of land would be suboptimal!
When a utilitarian attempts to speak about such matters he wants to claim that the government broke its own “rule based procedures for property allocation” (rule based utilitarianism), in order to conceal from himself his own intuitive knowledge that the government acted lawlessly. His rationalization is plainly false: The governments actions were a result of consistently applying the governments utilitarian rules on substandard housing. The hurricane had made everyone’s housing substandard. The government obeyed their own unlawful rules, violating the rights of their subjects. The violent wrath of their subjects was so great, that the government back tracked and chose to respect the property rights of their subjects, in violation of their own “rule based procedures for property allocation.”
Those of us who seek to protect and restore freedom must avoid using the words our enemies seek to impose on us. The only way to escape from this trap is to use the language of natural law, the language with which a free society was envisioned and created, the words for which so many people killed and died. If we submit to using words that prevent us from expressing the thought of limits to government power and authority, then there will be no limits to government power and authority.
Words carry with them systems of ideas. The only system of ideas capable of repudiating limitless and absolute state power is natural law. It is impossible to speak about limits to the power and authority of the state except in the language with which such ideas were originally expressed. No other language is available.
If someone rejects the language of natural law, refuses to use such words, pretends not to comprehend them, and rejects them as meaningless, then he is not interested in using words as a medium of communication. He is merely using them as a method of control. It is pointless to attempt to communicate with such a person.
It most doubtful that other peoples good is knowable in principle. It certainly is not knowable in practice. In practice, whenever any organization makes a serious attempt to ascertain the greater good it is submerged in a flood of paperwork, and to defend itself against this flood of paper it strangles everything it touches in red tape. It unavoidably finds itself imposing, by increasingly lawless violence, a procrustean and arbitrary concept of the good. If I take a slight detour on my way to work I go through rent controlled East Palo Alto, where I can watch my tax dollars at play, and observe this destructive process in operation.
The most dramatic and devastating demonstration of the difficulty of knowing the greater good, and the most famous and best known, was of course the attempt of the Cambodian government to increase the rice harvest by central direction of irrigation. This led to irrigation ditches being dug in nice neat straight lines without regard to small scale topography, with the result that they failed to transport water, it led to wetland rice being planted on land that remained dry, dry land rice being planted on land that became submerged, and so on and so forth. The peasants, foreseeing death by starvation if they continued to pursue the greater good, selfishly sought to pursue their own individual good, contrary to the decrees of their masters. Their masters imagined themselves to be responsible for feeding the peasants, so they were reluctantly forced to use ever more savage terror and torture to force the starving peasants to pursue the greater good. For the sake of the greater good, the peasants were forced to watch their starving children murdered, for the sake of the greater good they were forced to maim and break those they loved with crude agricultural implements, for the sake of the greater good they were brutally and savagely tortured, for the sake of the greater good they died horrible and degrading deaths in vast numbers, all for the greatest good of the greatest number.
Similar, though less extreme, events have occurred throughout the vast majority of the third world. Cambodia was merely the most monstrous of these of these events, but there have been many others, smaller in scale but equal in horror and depravity. In countries where people live close to hunger, most of the third world, state intervention to improve people lives has invariably resulted in mass starvation, these catastrophes being most photogenic in Africa. This mass starvation has often resulted in resistance the these benefits and improvements, which has resulted in extraordinarily brutal terror and torture, to extort continued submission to government aid. Especially entertaining is the suffering of the unfortunate recipients of government to government aid. One notable example is the World Bank resettlement program in Ethiopia, where hundreds of thousands of people who failed to appreciate the generous aid their Marxist government provided them were resettled in extermination camps built by the World Bank, and shipped to those camps in cattle trucks supplied by the World Bank (Bandow, Bovard, Keyes). Another amusing example of your taxes at work providing the greatest good for the greatest number was the World Bank’s Akosombo dam project (Bovard, Lappe 35 37). Most attempts to determine the greatest good for the greatest number have had similar outcomes, it is just that in affluent societies the consequences are less flagrant, less brutally obvious. In a poor society an attempt to provide the greatest good for the greatest number usually results in starvation, death, torture, and maiming. In an affluent society it merely produces poverty, fatherless children, homelessness, street crime, and discreet police violence.
Stalin tried simple utilitarianism until 1921, meta rule based utilitarianism from 1921 to 1928 and rule based utilitarianism from 1928 onwards. The problem was not errors specific to Marxism, as non Marxist socialists argue. Nor was it errors specific to socialism, as non socialist utilitarians argue. The problem was the basic assumption that the state could pursue good ends by force and coercion. In the social fabric, means are ends.
In order to argue that Stalin’s analysis of utility was incorrect, utilitarians find themselves rationalizing that the Soviet Union failed because of economic errors. But this is plainly false. The Soviet Union did not lose cohesion because of economic errors. Loss of cohesion came first, economic problems came later. It suffered economic stagnation as a result of loss of social cohesion.
Mises criticism of the difficulty of economic calculation under socialism is true but irrelevant. No doubt the central plan was full of defects, but the Soviet economy did fine despite the central plan. The economy only began to falter when government organizations started raiding each other. Armed raids by one government agency to seize stuff under the control of another government agency became commonplace, rendering the plan irrelevant.
Mises theory of human action is correct, but the important thing is not to apply it merely to allocation of resources, as Mises did, but to questions of good and evil, lawful and unlawful, as Hayek did. Knowledge of the rights of man is more important than knowledge of what area should be planted with cabbages.
Whether a government consciously intends to destroy free enterprise or not, free enterprise cannot survive the destruction of the rule of law by the state, as Hayek pointed out. The rule of law is not merely a matter of the government applying its own rules in a consistent manner to all its subjects, as Stalin did in the great terror. The rule of law is not rule based utilitarianism, it is fundamentally incompatible with any form of utilitarianism. The concept of the rule of law is inexpressible in utilitarian speak, and is meaningless within the utilitarian philosophy.
Even if it were possible in principle to determine the good of others, and impose that good on them by force, history shows us that it is not practical. When one considers utilitarianism in real life, it necessary to laugh, so as to avoid weeping.
Whereas the absolutists produce mere hills of corpses, and then hygienically process the hills into useful products like soap and lampshades, the utilitarians produce them in mountains, but the utilitarians shake the stench more easily, blandly professing their good intentions and casually waving away the tens of millions of murdered women and children.
Whenever the ugly ideas of the absolutists are put into practice the absolutists change their name and rhetoric, from absolutist to romantic to relativist to post modernist, Whenever the pleasant and attractive ideas of the utilitarians are put into practice, the utilitarians shrug their shoulders and say, “but that is not what we intended, it was all a mistake, Stalin’s analysis of utility was faulty. If our ideas were put into action properly all would be well,” claiming that professed good intentions outweigh any number of foul deeds. By their fruit you will know them. Since the Cambodian irrigation project and the World Bank African assistance program the utilitarians have been unable to shake the stink quite so easily, and some utilitarian factions are now trying out new names. The phrase “the greater good” is at last starting to sound like a polite euphemism for lawless state violence. People are becoming embarrassed to use it, whereas a decade or so ago there was no such embarrassment.
In the west, for the last four hundred years, society been shaped by ideas, with a lag of roughly one human lifetime between the idea and the social order. Today statism continues to grow at an ever accelerating rate, but the rationalizations that justified statism are no longer believed. The professors can fail students who disagree with them, but they can no longer convince. One can now endorse facts that tend to support natural law in a university without facing physical danger, which was not the case ten years ago. E.O. Wilson was physically attacked because his work could imply that some social orders were natural and some unnatural. Tooby and Cosmides were not attacked. The professors still summon the mob to attack the unbelievers, but the mob no longer comes.
Tooby and Cosmides do not put their politics in their science, for good politics does not make good science, but they do put their science in their politics, for good science does make good politics. They have campaigned for most of the things that Wilson was falsely accused of campaigning for.
The state commands and spends ever more wealth, intrudes into our lives in ways that are ever more intimate and detailed, exercises ever greater power, backed by ever more severe punishments, often for deeds that it only declared illegal a few years ago, while at the same time the states capacity to coerce, to collect taxes, and to generate legitimacy continues to decline at an ever accelerating rate. Ever fewer people listen to political speeches, or feel identification with the winning party. People are less inclined to imagine that voting can make any difference, less inclined to believe that legislation or courts possess moral authority. Both trends are driven by simple and powerful forces that are easy to understand. Numerous books, both serious (public choice theory) and humorous, and even a television series (“Yes Minister”) have explained these forces and why they are unstoppable. These two trends will inevitably collide in the not very distant future, are already beginning to collide. The states every increasing use of lawless coercion will collide, is already colliding, with its ever decreasing capacity to coerce. Dade County, the citizens militia in the L.A. riots, the tax revolt in Italy, all foreshadow the coming collision. The citizens of California noticed that the only Koreans who were murdered in the L.A. riots were unarmed. There were no casualties amongst those Koreans who defended their property with gunfire. Gun sales have risen accordingly.
This collision will recreate, over several decades, a situation where there is plurality of force. Free societies have only arisen where there is plurality of force. Of course plurality of force does not guarantee a free society. It merely makes it possible. Social collapse is also possible. During the coming crisis we must keep our eyes fixed on the simple ancient truths of natural rights and natural law. We must discriminate between those who use force lawfully and those who use force unlawfully, and must act accordingly, we must discriminate between those who deal honorably and those who deal dishonorably, and must act accordingly. If we do that then we will have a functioning civil society.
The Greeks, in their war with the Persians, demonstrated that the true unity that comes from common adherence to the rule of law is more powerful than the appearance of unity that comes from common submission to centralized authority.
Aristotle (350BC) Politics, Book 1 Chapter 2
Bandow, Doug. (1989). “What is still wrong with the world bank?” Orbis (Winter): 73 – 89
Barkow, JH, Cosmides L, Tooby J. (1992) “The adapted mind, Evolutionary psychology and the generation of Culture”, Oxford University Press.
Benson, B.L, (1990)“The enterprise of law, justice without the state” Pacific Research Institute, ISBN 0-936488-29-8
Bovard, James. (1988). “The World Bank vs. the World’s Poor.” The Freeman (May): 184 – 187
Ellickson, Robert C., (1991). “Order without Law, How Neighbors Settle Disputes” Harvard University Press.
Keyes, Alan. (1986). “Ethiopia: The U.N.’s Role.” Statement by the Assistant Secretary for International Organization Affairs before the Subcommittee on African Affairs of the Senate Foreign Relations Committee, Washington D. C., US. Department of State, Current Policy No. 803 (March 16): 2
Kopel, David B., (1992) “The Samurai, the Mountie, and the Cowboy” 278 -373
Lappe, David et al. (1981). Aid as an Obstacle San Francisco Institute for Food and Development Policy.
Locke, John, (1689) A letter concerning toleration
Locke, John, (1690) Two Treatises of Government
Reeve, H.K. & Nonacs, P., (1993) Nature, 363, 503
The Science of Justice.
The science of mine and thine – the science of justice – is the science of all human rights; of all a man’s rights of person and property; of all his rights to life, liberty, and the pursuit of happiness.
It is the science which alone can tell any man what he can, and cannot, do; what he can, and cannot, have; what he can, and cannot, say, without infringing the rights of any other person.
It is the science of peace; and the only science of peace; since it is the science which alone can tell us on what conditions mankind can live in peace, or ought to live in peace, with each other.
These conditions are simply these: viz., first, that each man shall do, towards every other, all that justice requires him to do; as, for example, that he shall pay his debts, that he shall return borrowed or stolen property to its owner, and that he shall make reparation for any injury he may have done to the person or property of another.
The second condition is, that each man shall abstain from doing to another, anything which justice forbids him to do; as, for example, that he shall abstain from committing theft, robbery, arson, murder, or any other crime against the person or property of another.
So long as these conditions are fulfilled, men are at peace, and ought to remain at peace, with each other. But when either of these conditions is violated, men are at war. And they must necessarily remain at war until justice is re-established.
Through all time, so far as history informs us, wherever mankind have attempted to live in peace with each other, both the natural instincts, and the collective wisdom of the human race, have acknowledged and prescribed, as an indispensable condition, obedience to this one only universal obligation: viz., that each should live honestly towards every other.
The ancient maxim makes the sum of a man’s legal duty to his fellow men to be simply this: “to live honestly, to hurt no one, to give to every one his due.”
This entire maxim is really expressed in the single words, to live honestly; since to live honestly is to hurt no one, and give to every one his due.
Man, no doubt, owes many other moral duties to his fellow men; such as to feed the hungry, clothe the naked, shelter the homeless, care for the sick, protect the defenceless, assist the weak, and enlighten the ignorant. But these are simply moral duties, of which each man must be his own judge, in each particular case, as to whether, and how, and how far, he can, or will, perform them. But of his legal duty – that is, of his duty to live honestly towards his fellow men – his fellow men not only may judge, but, for their own protection, must judge. And, if need be, they may rightfully compel him to perform it. They may do this, acting singly, or in concert. They may do it on the instant, as the necessity arises, or deliberately and systematically, if they prefer to do so, and the exigency will admit of it.
Although it is the right of anybody and everybody – of any one man, or set of men, no less than another – to repel injustice, and compel justice, for themselves, and for all who may be wronged, yet to avoid the errors that are liable to result from haste and passion, and that everybody, who desires it, may rest secure in the assurance of protection, without a resort to force, it is evidently desirable that men should associate, so far as they freely and voluntarily can do so, for the maintenance of justice among themselves, and for mutual protection against other wrong-doers. It is also in the highest degree desirable that they should agree upon some plan or system of judicial proceedings, which, in the trial of causes, should secure caution, deliberation, thorough investigation, and, as far as possible, freedom from every influence but the simple desire to do justice.
Yet such associations can be rightful and desirable only in so far as they are purely voluntary. No man can rightfully be coerced into joining one, or supporting one, against his will. His own interest, his own judgement, and his own conscience alone must determine whether he will join this association, or that; or whether he will join any. If he chooses to depend, for the protection of his own rights, solely upon himself, and upon such voluntary assistance as other persons may freely offer to him when the necessity for it arises, he has a perfect right to do so. And this course would be a reasonably safe one for him to follow, so long as he himself should manifest the ordinary readiness of mankind, in like cases, to go to the assistance and defence of injured persons; and should also himself “live honestly, hurt no one, and give to every one his due.” For such a man is reasonably sure of always giving friends and defenders enough in case of need, whether he shall have joined any association, or not.
Certainly no man can rightfully be required to join, or support, an association whose protection he does not desire. Nor can any man be reasonably or rightfully expected to join, or support, any association whose plans, or method of proceeding, he does not approve, as likely to accomplish its professed purpose of maintaining justice, and at the same time itself avoid doing injustice. To join, or support, one that would, in his opinion, be inefficient, would be absurd. To join or support one that, in his opinion, would itself do injustice, would be criminal. He must, therefore, be left at the same liberty to join, or not to join, an association for this purpose, as for any other, according as his own interest, discretion, or conscience shall dictate.
An association for mutual protection against injustice is like an association for mutual protection against fire or shipwreck. And there is no more right or reason in compelling any man to join or support one of these associations, against his will, his judgement, or his conscience, than there is in compelling him to join or support any other, whose benefits (if it offer any) he does not want, or whose purposes or methods he does not approve.
No objection can be made to these voluntary associations upon the ground that they would lack that knowledge of justice, as a science, which would be necessary to enable them to maintain justice, and themselves avoid doing injustice. Honesty, justice, natural law, is usually a very plain and simple matter, easily understood by common minds. Those who desire to know what it is, in any particular case, seldom have to go far to find it. It is true, it must be learned, like any other science. But it is also true that it is very easily learned. Although as illimitable in its applications as the infinite relations and dealings of men with each other, it is, nevertheless, made up of a few simple elementary principles, of the truth and justice of which every ordinary mind has an almost intuitive perception. And almost all men have the same perceptions of what constitutes justice, or of what justice requires, when they understand alike the facts from which their inferences are to be drawn.
Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? or is it unjust? Is this thing mine? or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.(1)
Children learn the fundamental principles of natural law at a very early age. Thus they very early understand that one child must not, without just cause, strike or otherwise hurt, another; that one child must not assume any arbitrary control or domination over another; that one child must not, either by force, deceit, or stealth, obtain possession of anything that belongs to another; that if one child commits any of these wrongs against another, it is not only the right of the injured child to resist, and, if need be, punish the wrongdoer, and compel him to make reparation, but that it is also the right, and the moral duty, of all other children, and all other persons, to assist the injured party in defending his rights, and redressing his wrongs. These are fundamental principles of natural law, which govern the most important transactions of man with man. Yet children learn them earlier than they learn that three and three are six, or five and five ten. Their childish plays, even, could not be carried on without a constant regard to them; and it is equally impossible for persons of any age to live together in peace on any other conditions.
It would be no extravagance to say that, in most cases, if not in all, mankind at large, young and old, learn this natural law long before they have learned the meanings of the words by which we describe it. In truth, it would be impossible to make them understand the real meanings of the words, if they did not understand the nature of the thing itself. To make them understand the meanings of the words justice and injustice before knowing the nature of the things themselves, would be as impossible as it would be to make them understand the meanings of the words heat and cold, wet and dry, light and darkness, white and black, one and two, before knowing the nature of the things themselves. Men necessarily must know sentiments and ideas, no less than material things, before they can know the meanings of the words by which we describe them.
The Science of Justice (Continued)
If justice be not a natural principle, it is no principle at all. If it be not a natural principle, there is no such thing as justice. If it be not a natural principle, all that men have ever said or written about it, from time immemorial, has been said and written about that which had no existence. If it be not a natural principle, all the appeals for justice that have ever been heard, and all the struggles for justice that have ever been witnessed, have been appeals and struggles for a mere fantasy, a vagary of the imagination, and not for a reality.
If justice be not a natural principle, then there is no such thing as injustice; and all the crimes of which the world has been the scene, have been no crimes at all; but only simple events, like the falling of the rain, or the setting of the sun; events of which the victims had no more reason to complain than they had to complain of the running of the streams, or the growth of vegetation.
If justice be not a natural principle, governments (so-called) have no more right or reason to take cognizance of it, or to pretend or profess to take cognizance of it, than they have to take cognizance, or to pretend or profess to take cognizance, of any other nonentity; and all their professions of establishing justice, or of maintaining justice, or of rewarding justice, are simply the mere gibberish of fools, or the frauds of imposters.
But if justice be a natural principle, then it is necessarily an immutable one; and can no more be changed – by any power inferior to that which established it – than can the law of gravitation, the laws of light, the principles of mathematics, or any other natural law or principle whatever; and all attempts or assumptions, on the part of any man or body of men – whether calling themselves governments, or by any other name – to set up their own commands, wills, pleasure, or discretion, in the place of justice, as a rule of conduct for any human being, are as much an absurdity, an usurpation, and a tyranny, as would be their attempts to set up their own commands, wills, pleasure, or discretion in the place of any and all the physical, mental, and moral laws of the universe.
If there be any such principle as justice, it is, of necessity, a natural principle; and, as such, it is a matter of science, to be learned and applied like any other science. And to talk of either adding to, or taking from, it, by legislation, is just as false, absurd, and ridiculous as it would be to talk of adding to, or taking from, mathematics, chemistry, or any other science, by legislation.
If there be in nature such a principle as justice, nothing can be added to, or taken from, its supreme authority by all the legislation of which the entire human race united are capable. And all the attempts of the human race, or of any portion of it, to add to, or take from, the supreme authority of justice, in any case whatever, is of no more obligation upon any single human being than is the idle wind.
If there be such a principle as justice, or natural law, it is the principle, or law, that tells us what rights were given to every human being at his birth; what rights are, therefore, inherent in him as a human being, necessarily remain with him during life; and, however capable of being trampled upon, are incapable of being blotted out, extinguished, annihilated, or separated or eliminated from his nature as a human being, or deprived of their inherent authority or obligation.
On the other hand, if there be no such principle as justice, or natural law, then every human being came into the world utterly destitute of rights; and coming into the world destitute of rights, he must necessarily forever remain so. For if no one brings any rights with him into the world, clearly no one can ever have any rights of his own, or give any to another. And the consequence would be that mankind could never have any rights; and for them to talk of any such things as their rights, would be to talk of things that never had, never will have, and never can have any existence.
If there be such a natural principle as justice, it is necessarily the highest, and consequently the only and universal, law for all those matters to which it is naturally applicable. And, consequently, all human legislation is simply and always an assumption of authority and dominion, where no right of authority or dominion exists. It is, therefore, simply and always an intrusion, an absurdity, an usurpation, and a crime.
On the other hand, if there be no such natural principle as justice, there can be no such thing as dishonesty; and no possible act of either force or fraud, committed by one man against the person or property of another, can be said to be unjust or dishonest; or be complained of, or prohibited, or punished as such. In short, if there be no such principle as justice, there can be no such acts as crimes; and all the professions of governments, so called, that they exist, either in whole or in part, for the punishment or prevention of crimes, are professions that they exist for the punishment or prevention of what never existed, nor ever can exist. Such professions are therefore confessions that, so far as crimes are concerned, governments have no occasion to exist; that there is nothing for them to do, and that there is nothing that they can do. They are confessions that the governments exist for the punishment and prevention of acts that are, in their nature, simple impossibilities.
If there be in nature such a principle as justice, such a principle as honesty, such principles as we describe by the words mine and thine, such principles as men’s natural rights of person and property, then we have an immutable and universal law; a law that we can learn, as we learn any other science; a law that tells us what is just and what is unjust, what is honest and what is dishonest, what things are mine and what things are thine, what are my rights of person and property and what are your rights of person and property, and where is the boundary between each and all of my rights of person and property and each and all of your rights of person and property. And this law is the paramount law, and the same law, over all the world, at all times, and for all peoples; and will be the same paramount and only law, at all times, and for all peoples, so long as man shall live upon the earth.
But if, on the other hand, there be in nature no such principle as justice, no such principle as honesty, no such principle as men’s natural rights of person or property, then all such words as justice and injustice, honesty and dishonesty, all such words as mine and thine, all words that signify that one thing is one man’s property and that another thing is another man’s property, all words that are used to describe men’s natural rights of person or property, all such words as are used to describe injuries and crimes, should be struck out of all human languages as having no meanings; and it should be declared, at once and forever, that the greatest force and the greatest frauds, for the time being, are the supreme and only laws for governing the relations of men with each other; and that, from henceforth, all persons and combinations of persons – those that call themselves governments, as well as all others – are to be left free to practice upon each other all the force, and all the fraud, of which they are capable.
If there be no such science as justice, there can be no science of government; and all the rapacity and violence, by which, in all ages and nations, a few confederated villains have obtained the mastery over the rest of mankind, reduced them to poverty and slavery, and established what they called governments to keep them in subjection, have been as legitimate examples of government as any that the world is ever to see.
If there be in nature such a principle as justice, it is necessarily the only political principle there ever was, or ever will be. All the other so-called political principles, which men are in the habit of inventing, are not principles at all. They are either the mere conceits of simpletons, who imagine they have discovered something better than truth, and justice, and universal law; or they are mere devices and pretences, to which selfish and knavish men resort as means to get fame, and power, and money.
Natural Law Contrasted With Legislation.
Natural law, natural justice, being a principle that is naturally applicable and adequate to the rightful settlement of every possible controversy that can arise among men; being too, the only standard by which any controversy whatever, between man and man, can be rightfully settled; being a principle whose protection every man demands for himself, whether he is willing to accord it to others, or not; being also an immutable principle, one that is always and everywhere the same, in all ages and nations; being self-evidently necessary in all times and places; being so entirely impartial and equitable towards all; so indispensable to the peace of mankind everywhere; so vital to the safety and welfare of every human being; being, too, so easily learned, so generally known, and so easily maintained by such voluntary associations as all honest men can readily and rightully form for that purpose – being such a principle as this, these questions arise, viz.: Why is it that it does not universally, or well nigh universally, prevail? Why is it that it has not, ages ago, been established throughout the world as the one only law that any man, or all men, could rightfully be compelled to obey? Why is it that any human being ever conceived that anything so self-evidently superfluous, false, absurd, and atrocious as all legislation necessarily must be, could be of any use to mankind, or have any place in human affairs?
The answer is, that through all historic times, wherever any people have advanced beyond the savage state, and have learned to increase their means of sub-sistence by the cultivation of soil, a greater or less number of them have associated and organized themselves as robbers, to plunder and enslave all others, who had either accumulated any property that could be seized, or had shown, by their labor, that they could be made to contribute to the support or pleasure of those who should enslave them.
These bands of robbers, small in number at fist, have increased their power by uniting with each other, inventing warlike weapons, disciplining themselves, and perfecting their organizations as military forces, and dividing their plunder (including their captives) among themselves, either in such proportions as have been previously agreed on, or in such as their leaders (always desirous to increase the number of their followers) should prescribe.
The success of these bands of robbers was an easy thing, for the reason that those whom they plundered and ensalved were comparatively defenceless; being scattered thinly over the country; engaged wholly in trying, by rude implements and heavy labor, to extort a subsistence from the soil; having no weapons of war, other than sticks and stones; having no military discipline or organization, and no means of concentrating their forces, or acting in concert, when suddenly attacked. Under these circumstances, the only alternative left them for saving even their lives, or the lives of their families, was to yield up not only the crops they had gathered, and the lands they had cultivated, but themselves and their families also as slaves.
Thenceforth their fate was, as slaves, to cultivate for others the lands they had before cultivated for themselves. Being driven constantly to their labor, wealth slowly increased; but all went into the hands of their tyrants.
These tyrants, living solely on plunder, and on the labor of their slaves, and applying all their energies to the seizure of still more plunder, and the enslavement of still other defenceless persons; increasing, too, their numbers, perfecting their organizations, and multiplying their weapons of war, they extend their conquests until, in order to hold what they have already got, it becomes necessary for them to act systematically, and cooperate with each other in holding their slaves in subjection.
But all this they can do only by establishing what they call a government, and making what they call laws.
All the great governments of the world – those now existing, as well as those that have passed away – have been of this character. They have been mere bands of robbers, who have associated for purposes of plunder, conquest, and the enslavement of their fellow men. And their laws, as they have called them, have been only such agreements as they have found it necessary to enter into, in order to maintain their organizations, and act together in plundering and enslaving others, and in securing to each his agreed share of the spoils.
All these laws have had no more real obligation than have the agreements which brigands, bandits, and pirates find it necessary to enter into with each other, for the more successful accomplishment of their crimes, and the more peaceable division of their spoils.
Thus substantially all the legislation of the world has had its origin in the desires of one class – of persons to plunder and enslave others, and hold them as property.
In process of time, the robber, or slaveholding, class – who had seized all the lands, and held all the means of creating wealth – began to discover that the easiest mode of managing their slaves, and making them profitable, was not for each slaveholder to hold his specified number of slaves, as he had done before, and as he would hold so many cattle, but to give them so much liberty as would throw upon themselves (the slaves) the responsibility of their own subsistence, and yet compel them to sell their labor to the land-hodling class – their former owners – for just what the latter might choose to give them.
Of course, these liberated slaves, as some have erroneously called them, having no lands, or other property, and no means of obtaining an independent subsistence, had no alternative – to save themselves from starvation – but to sell their labor to the landholders, in exchange only for the coarsest necessaries of life; not always for so much even as that.
These liberated slaves, as they were called, were now scarcely less slaves than they were before. Their means of subsistence were perhaps even more precarious than when each had his own owner, who had an interest to preserve his life. They were liable, at the caprice or interest of the landholders, to be thrown out of home, employment, and the opportunity of even earning a subsistence by their labor. They were, therefore, in large numbers, driven to the necessity of begging, stealing, or starving; and became, of course, dangerous to the property and quiet of their late masters.
The consequence was, that these late owners found it necessary, for their own safety and the safety of their property, to organize themselves more perfectly as a government and make laws for keeping these dangerous people in subjection; that is, laws fixing the prices at which they should be compelled to labor, and also prescribing fearful punishments, even death itself, for such thefts and tresspasses as they were driven to commit, as their only means of saving themselves from starvation.
These laws have continued in force for hundreds, and, in some countries, for thousands of years; and are in force to-day, in greater or less severity, in nearly all the countries on the globe.
The purpose and effect of these laws have been to maintain, in the hands of the robber, or slave holding class, a monopoly of all lands, and, as far as possible, of all other means of creating wealth; and thus to keep the great body of laborers in such a state of poverty and dependence, as would compel them to sell their labor to their tyrants for the lowest prices at which life could be sustained.
The result of all this is, that the little wealth there is in the world is all in the hands of a few – that is, in the hands of the law-making, slave-holding class; who are now as much slaveholders in spirit as they ever were, but who accomplish their purposes by means of the laws they make for keeping the laborers in subjection and dependence, instead of each one’s owning his individual slaves as so many chattels.
Thus the whole business of legislation, which has now grown to such gigantic proportions, had its origin in the conspiracies, which have always existed among the few, for the purpose of holding the many in subjection, and extorting from them their labor, and all the profits of their labor.
And the real motives and spirit which lie at the foundation of all legislation – notwithstanding all the pretences and disguises by which they attempt to hide themselves – are the same to-day as they always have been. They whole purpose of this legislation is simply to keep one class of men in subordination and servitude to another.
What, then, is legislation? It is an assumption by one man, or body of men, of absolute, irresponsible dominion over all other men whom they call subject to their power. It is the assumption by one man, or body of men, of a right to subject all other men to their will and their service. It is the assumption by one man, or body of men, of a right to abolish outright all the natural rights, all the natural liberty of all other men; to make all other men their slaves; to arbitrarily dictate to all other men what they may, and may not, do; what they may, and may not, have; what they may, and may not, be. It is, in short, the assumption of a right to banish the principle of human rights, the principle of justice itself, from off the earth, and set up their own personal will, pleasure, and interest in its place. All this, and nothing less, is involved in the very idea that there can be any such thing as human legislation that is obligatory upon those upon whom it is imposed.
1. Sir William Jones, an English judge in India, and one of the most learned judges that ever lived, learned in Asiatic as well as European law, says: “It is pleasing to remark the similarity, or, rather, the idenity, of those conclusions which pure, unbiased reason, to all ages and nations, seldom fails to draw, in such juridical inquiries as are not fettered and manacled by positive institutions.” – jones on bailments, 133.
He means here to say that, when no law has been made in violation of justice, judicial tribunals, “in all ages and nations,” have “seldom” failed to agree as to what justice is.
true original, extent, and end
by John Locke
Converted to HTML by James A. Donald email@example.com
The Contents of Book 2
- Chapter 1. Of Political Power
- Chapter 2. Of the State of Nature
- Chapter 3. Of the State of War
- Chapter 4. Of Slavery
- Chapter 5. Of Property
- Chapter 6. Of Paternal Power
- Chapter 7. Of Political or Civil Society
- Chapter 8. Of the Beginning of Political Societies
- Chapter 9. Of the Ends of Political Society and Government
- Chapter 10. Of the Forms of a Commonwealth
- Chapter 11. Of the Extent of the Legislative Power
- Chapter 12. The Legislative, Executive, and Federative Power of the Commonwealth
- Chapter 13. Of the Subordination of the Powers of the Commonwealth
- Chapter 14. Of Prerogative
- Chapter 15. Of Paternal, Political and Despotical Power,
- Chapter 16. Of Conquest
- Chapter 17. Of Usurpation
- Chapter 18. Of Tyranny
- Chapter 19. Of the Dissolution of Government
1. It having been shown in the foregoing discourse:*
Firstly. That Adam had not, either by natural right of fatherhood or by positive donation from God, any such authority over his children, nor dominion over the world, as is pretended.
Secondly. That if he had, his heirs yet had no right to it.
Thirdly. That if his heirs had, there being no law of Nature nor positive law of God that determines which is the right heir in all cases that may arise, the right of succession, and consequently of bearing rule, could not have been certainly determined.
Fourthly. That if even that had been determined, yet the knowledge of which is the eldest line of Adam′s posterity being so long since utterly lost, that in the races of mankind and families of the world, there remains not to one above another the least pretence to be the eldest house, and to have the right of inheritance.
All these promises having, as I think, been clearly made out, it is impossible that the rulers now on earth should make any benefit, or derive any the least shadow of authority from that which is held to be the fountain of all power, “Adam′s private dominion and paternal jurisdiction”; so that he that will not give just occasion to think that all government in the world is the product only of force and violence, and that men live together by no other rules but that of beasts, where the strongest carries it, and so lay a foundation for perpetual disorder and mischief, tumult, sedition, and rebellion (things that the followers of that hypothesis so loudly cry out against), must of necessity find out another rise of government, another original of political power, and another way of designing and knowing the persons that have it than what Sir Robert Filmer hath taught us.
2. 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.
3. 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 commonwealth from foreign injury, and all this only for the public good.
4. To understand political power aright, and derive it from its original, we must consider what estate all men are naturally in, and that is, a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man.
A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another, there being nothing more evident than that creatures of the same species and rank, promiscuously born to all the same advantages of Nature, and the use of the same faculties, should also be equal one amongst another, without subordination or subjection, unless the lord and master of them all should, by any manifest declaration of his will, set one above another, and confer on him, by an evident and clear appointment, an undoubted right to dominion and sovereignty.
5. This equality of men by Nature, the judicious Hooker looks upon as so evident in itself, and beyond all question, that he makes it the foundation of that obligation to mutual love amongst men on which he builds the duties they owe one another, and from whence he derives the great maxims of justice and charity. His words are:
“The like natural inducement hath brought men to know that it is no less their duty to love others than themselves, for seeing those things which are equal, must needs all have one measure; if I cannot but wish to receive good, even as much at every man′s hands, as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire, which is undoubtedly in other men weak, being of one and the same nature: to have anything offered them repugnant to this desire must needs, in all respects, grieve them as much as me; so that if I do harm, I must look to suffer, there being no reason that others should show greater measure of love to me than they have by me showed unto them; my desire, therefore, to be loved of my equals in Nature, as much as possible may be, imposeth upon me a natural duty of bearing to themward fully the like affection. From which relation of equality between ourselves and them that are as ourselves, what several rules and canons natural reason hath drawn for direction of life no man is ignorant.” (Eccl. Pol. i.)*
6. 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; 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 authorise us to destroy one another, as if we were made for one another′s uses, as the inferior ranks of creatures are for ours. Every one as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he as much as he can to preserve the rest of mankind, and 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.
7. And that all men may be restrained from invading others′ rights, and from doing hurt to one another, and the law of Nature be observed, which willeth the peace and preservation of all mankind, the execution of the law of Nature is in that state put into every man′s hands, whereby 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 nobody that in the state of Nature had a power to execute that law, and thereby preserve the innocent and restrain offenders; and if any one in the state of Nature may punish another for any evil he has done, every one may do so. For in that state of perfect equality, where naturally there is no superiority or jurisdiction of one over another, what any may do in prosecution of that law, every one must needs have a right to do.
8. And thus, in the state of Nature, one man comes by a power over another, but yet no absolute or arbitrary power to use a criminal, when he has got him in his hands, according to the passionate heats or boundless extravagancy of his own will, but only to retribute to him so far as calm reason and conscience 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 tie which is to secure them from injury and violence being slighted and broken by him, which being a trespass against the whole species, and the peace and safety of it, provided for by the law of Nature, every man upon this score, by the right he hath to preserve mankind in general, may restrain, or where it is necessary, destroy things noxious to them, and so may bring such evil on any one who hath transgressed that law, as may make him repent the doing of it, and thereby deter him, and, by his example, others from doing the like mischief. And in this case, and upon this ground, every man hath a right to punish the offender, and be executioner of the law of Nature.
9. I doubt not but this will seem a very strange doctrine to some men; but before they condemn it, I desire them to resolve me by what right any prince or state can put to death or punish an alien for any crime he commits in their country? It is certain their laws, by virtue of any sanction they receive from the promulgated will of the legislature, reach not a stranger. They speak not to him, nor, if they did, is he bound to hearken to them. The legislative authority by which they are in force over the subjects of that commonwealth hath no power over him. Those who have the supreme power of making laws in England, France, or Holland are, to an Indian, but like the rest of the world- men without authority. And therefore, if by the law of Nature every man hath not a power to punish offences against it, as he soberly judges the case to require, I see not how the magistrates of any community can punish an alien of another country, since, in reference to him, they can have no more power than what every man naturally may have over another.
10. Besides the crime which consists in violating the laws, and varying from the right rule of reason, whereby a man so far becomes degenerate, and declares himself to quit the principles of human nature and to be a noxious creature, there is commonly injury done, and some person or other, some other man, receives damage by his transgression; in which case, he who hath received any damage has (besides the right of punishment common to him, with other men) a particular right to seek reparation from him that hath done it. And any other person who finds it just may also join with him that is injured, and assist him in recovering from the offender so much as may make satisfaction for the harm he hath suffered.
11. From these two distinct rights (the one of punishing the crime, for restraint and preventing the like offence, which right of punishing is in everybody, the other of taking reparation, which belongs only to the injured party) comes it to pass that the magistrate, who by being magistrate hath the common right of punishing put into his hands, can often, where the public good demands not the execution of the law, remit the punishment of criminal offences by his own authority, but yet cannot remit the satisfaction due to any private man for the damage he has received. That he who hath suffered the damage has a right to demand in his own name, and he alone can remit. The damnified person has this power of appropriating to himself the goods or service of the offender by right of self-preservation, as every man has a power to punish the crime to prevent its being committed again, by the right he has of preserving all mankind, and doing all reasonable things he can in order to that end. And thus it is that every man in the state of Nature has a power to kill a murderer, both to deter others from doing the like injury (which no reparation can compensate) by the example of the punishment that attends it from 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 a tiger, one of those wild savage beasts with whom men can have no society nor security. And upon this is grounded that great law of nature, “Whoso sheddeth man′s blood, by man shall his blood be shed.” And Cain was so fully convinced that every one had a right to destroy such a criminal, that, after the murder of his brother, he cries out, “Every one that findeth me shall slay me,” so plain was it writ in the hearts of all mankind.
12. By the same reason may a man in the state of Nature punish the lesser breaches of that law, it will, perhaps, be demanded, with death? I answer: Each transgression may be punished to that degree, and with so much severity, as will suffice to make it an ill bargain to the offender, give him cause to repent, and terrify others from doing the like. Every offence that can be committed in the state of Nature may, in the state of Nature, be also punished equally, and as far forth, as it may, in a commonwealth. For though it would be beside my present purpose to enter here into the particulars of the law of Nature, or its measures of punishment, yet it is certain there is such a law, and that too as intelligible and plain to a rational creature and a studier of that law as the positive laws of commonwealths, nay, possibly plainer; as much as reason is easier to be understood than the fancies and intricate contrivances of men, following contrary and hidden interests put into words; for truly so are a great part of the municipal laws of countries, which are only so far right as they are founded on the law of Nature, by which they are to be regulated and interpreted.
13. To this strange doctrine- viz., That in the state of Nature every one has the executive power of the law of Nature- I doubt not but it will be objected that it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends; and, on the other side, ill-nature, passion, and revenge will carry them too far in punishing others, and hence nothing but confusion and disorder will follow, and that therefore God hath certainly appointed government to restrain the partiality and violence of men. I easily grant that civil government is the proper remedy for the inconveniences of the state of Nature, which must certainly be great where men may be judges in their own case, since it is easy to be imagined that he who was so unjust as to do his brother an injury will scarce be so just as to condemn himself for it. But I shall desire those who make this objection to remember that absolute monarchs are but men; and if government is to be the remedy of those evils which necessarily follow from men being judges in their own cases, and the state of Nature is therefore not to be endured, I desire to know what kind of government that is, and how much better it is than the state of Nature, where one man commanding a multitude has the liberty to be judge in his own case, and may do to all his subjects whatever he pleases without the least question or control of those who execute his pleasure? and in whatsoever he doth, whether led by reason, mistake, or passion, must be submitted to? which men in the state of Nature are not bound to do one to another. And if he that judges, judges amiss in his own or any other case, he is answerable for it to the rest of mankind.
14. 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 never will be, without numbers of men in that state. I have named all governors of “independent” communities, whether they are, or are not, in league with others; for it is not every compact that puts an end to the state of Nature between men, but only this one of agreeing together mutually to enter into one community, and make one body politic; other promises and compacts men may make one with another, and yet still be in the state of Nature. The promises and bargains for truck, etc., between the two men in Soldania, in or between a Swiss and an Indian, in the woods of America, are binding to them, though they are perfectly in a state of Nature in reference to one another for truth, and keeping of faith belongs to men as men, and not as members of society.
15. To those that say there were never any men in the state of Nature, I will not oppose the authority of the judicious Hooker (Eccl. Pol. i. 10), where he says, “the laws which have been hitherto mentioned”- i.e., the laws of Nature- “do bind men absolutely, even as they are men, although they have never any settled fellowship, never any solemn agreement amongst themselves what to do or not to do; but for as much as we are not by ourselves sufficient to furnish ourselves with competent store of things needful for such a life as our Nature doth desire, a life fit for the dignity of man, therefore to supply those defects and imperfections which are in us, as living single and solely by ourselves, we are naturally induced to seek communion and fellowship with others; this was the cause of men uniting themselves as first in politic societies.” But I, moreover, affirm that all men are naturally in that state, and remain so till, by their own consents, they make themselves members of some politic society, and I doubt not, in the sequel of this discourse, to make it very clear.
16. The state of war is a state of enmity and destruction; and therefore declaring by word or action, not a passionate and hasty, but sedate, settled design upon another man′s life puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other′s power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just I should have a right to destroy that which threatens me with destruction; for by the fundamental law of Nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred, and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion, because they are not under the ties of the common law of reason, have no other rule but that of force and violence, and so may be treated as a beast of prey, those dangerous and noxious creatures that will be sure to destroy him whenever he falls into their power.
17. And hence it is that he who attempts to get another man into his absolute power does thereby put himself into a state of war with him; it being to be understood as a declaration of a design upon his life. For I have reason to conclude that he who would get me into his power without my consent would use me as he pleased when he had got me there, and destroy me too when he had a fancy to it; for nobody can desire to have me in his absolute power unless it be to compel me by force to that which is against the right of my freedom- i.e. make me a slave. To be free from such force is the only security of my preservation, and reason bids me look on him as an enemy to my preservation who would take away that freedom which is the fence to it; so that he who makes an attempt to enslave me thereby puts himself into a state of war with me. He that in the state of Nature would take away the freedom that belongs to any one in that state must necessarily be supposed to have a design to take away everything else, that freedom being the foundation of all the rest; as he that in the state of society would take away the freedom belonging to those of that society or commonwealth must be supposed to design to take away from them everything else, and so be looked on as in a state of war.
18. This makes it lawful for a man to kill a thief who has not in the least hurt him, nor declared any design upon his life, any farther than by the use of force, so to get him in his power as to take away his money, or what he pleases, from him; because using force, where he has no right to get me into his power, let his pretence be what it will, I have no reason to suppose that he who would take away my liberty would not, when he had me in his power, take away everything else. And, therefore, it is lawful for me to treat him as one who has put himself into a state of war with me- i.e., kill him if I can; for to that hazard does he justly expose himself whoever introduces a state of war, and is aggressor in it.
19. And here we have the plain difference between the state of Nature and the state of war, which however some men have confounded, are as far distant as a state of peace, goodwill, mutual assistance, and preservation; and a state of enmity, malice, violence and mutual destruction are one from another. Men living together according to reason without a common superior on earth, with authority to judge between them, is properly the state of Nature. But force, or a declared design of force upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war; and it is the want of such an appeal gives a man the right of war even against an aggressor, though he be in society and a fellow-subject. Thus, a thief whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill when he sets on me to rob me but of my horse or coat, because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which if lost is capable of no reparation, permits me my own defence and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority puts all men in a state of Nature; force without right upon a man′s person makes a state of war both where there is, and is not, a common judge.
20. But when the actual force is over, the state of war ceases between those that are in society and are equally on both sides subject to the judge; and, therefore, in such controversies, where the question is put, “Who shall be judge?” it cannot be meant who shall decide the controversy; every one knows what Jephtha here tells us, that “the Lord the Judge” shall judge. Where there is no judge on earth the appeal lies to God in Heaven. That question then cannot mean who shall judge, whether another hath put himself in a state of war with me, and whether I may, as Jephtha did, appeal to Heaven in it? Of that I myself can only judge in my own conscience, as I will answer it at the great day to the Supreme Judge of all men.
21. The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us: “A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws”; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.
22. This freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man′s preservation, that he cannot part with it but by what forfeits his preservation and life together. For a man, not having the power of his own life, cannot by compact or his own consent enslave himself to any one, nor put himself under the absolute, arbitrary power of another to take away his life when he pleases. Nobody can give more power than he has himself, and he that cannot take away his own life cannot give another power over it. Indeed, having by his fault forfeited his own life by some act that deserves death, he to whom he has forfeited it may, when he has him in his power, delay to take it, and make use of him to his own service; and he does him no injury by it. For, whenever he finds the hardship of his slavery outweigh the value of his life, it is in his power, by resisting the will of his master, to draw on himself the death he desires.
23. This is the perfect condition of slavery, which is nothing else but the state of war continued between a lawful conqueror and a captive, for if once compact enter between them, and make an agreement for a limited power on the one side, and obedience on the other, the state of war and slavery ceases as long as the compact endures; for, as has been said, no man can by agreement pass over to another that which he hath not in himself- a power over his own life.
I confess, we find among the Jews, as well as other nations, that men did sell themselves; but it is plain this was only to drudgery, not to slavery; for it is evident the person sold was not under an absolute, arbitrary, despotical power, for the master could not have power to kill him at any time, whom at a certain time he was obliged to let go free out of his service; and the master of such a servant was so far from having an arbitrary power over his life that he could not at pleasure so much as maim him, but the loss of an eye or tooth set him free (Exod. 21.).
24. Whether we consider natural reason, which tells us that men, being once born, have a right to their preservation, and consequently to meat and drink and such other things as Nature affords for their subsistence, or “revelation,” which gives us an account of those grants God made of the world to Adam, and to Noah and his sons, it is very clear that God, as King David says (Psalm 115. 16), “has given the earth to the children of men,” given it to mankind in common. But, this being supposed, it seems to some a very great difficulty how any one should ever come to have a property in anything, I will not content myself to answer, that, if it be difficult to make out “property” upon a supposition that God gave the world to Adam and his posterity in common, it is impossible that any man but one universal monarch should have any “property” upon a supposition that God gave the world to Adam and his heirs in succession, exclusive of all the rest of his posterity; but I shall endeavour to show 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.
25. God, who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience. The earth and all that is therein is given to men for the support and comfort of their being. And though all the fruits it naturally produces, and beasts it feeds, belong to mankind in common, as they are produced by the spontaneous hand of Nature, and nobody has originally a private dominion exclusive of the rest of mankind in any of them, as they are thus in their natural state, yet being given for the use of men, there must of necessity be a means to appropriate them some way or other before they can be of any use, or at all beneficial, to any particular men. The fruit or venison which nourishes the wild Indian, who knows no enclosure, and is still a tenant in common, must be his, and so his- i.e., a part of him, that another can no longer have any right to it before it can do him any good for the support of his life.
26. Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody 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 it, 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 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.
27. 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. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? 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 anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them.
28. 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.
29. 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 civilised 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 amber-gris 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.
30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to them, then any one may engross 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.” 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. And thus considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so established.
31. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow- commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth- i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.
32. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.
33. God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational (and labour was to be his title to it); not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement as was already taken up needed not complain, ought not to meddle with what was already improved by another′s labour; if he did it is plain he desired the benefit of another′s pains, which he had no right to, and not the ground which God had given him, in common with others, to labour on, and whereof there was as good left as that already possessed, and more than he knew what to do with, or his industry could reach to.
34. It is true, in land that is common in England or any other country, where there are plenty of people under government who have money and commerce, no one can enclose or appropriate any part without the consent of all his fellow-commoners; because this is left common by compact- i.e., by the law of the land, which is not to be violated. And, though it be common in respect of some men, it is not so to all mankind, but is the joint propriety of this country, or this parish. Besides, the remainder, after such enclosure, would not be as good to the rest of the commoners as the whole was, when they could all make use of the whole; whereas in the beginning and first peopling of the great common of the world it was quite otherwise. The law man was under was rather for appropriating. God commanded, and his wants forced him to labour. That was his property, which could not be taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate. And the condition of human life, which requires labour and materials to work on, necessarily introduce private possessions.
35. The measure of property Nature well set, by the extent of men′s labour and the conveniency of life. No man′s labour could subdue or appropriate all, nor could his enjoyment consume more than a small part; so that it was impossible for any man, this way, to entrench upon the right of another or acquire to himself a property to the prejudice of his neighbour, who would still have room for as good and as large a possession (after the other had taken out his) as before it was appropriated. Which measure did confine every man′s possession to a very moderate proportion, and such as he might appropriate to himself without injury to anybody in the first ages of the world, when men were more in danger to be lost, by wandering from their company, in the then vast wilderness of the earth than to be straitened for want of room to plant in.
36. The same measure may be allowed still, without prejudice to anybody, full as the world seems. For, supposing a man or family, in the state they were at first, peopling of the world by the children of Adam or Noah, let him plant in some inland vacant places of America. We shall find that the possessions he could make himself, upon the measures we have given, would not be very large, nor, even to this day, prejudice the rest of mankind or give them reason to complain or think themselves injured by this man′s encroachment, though the race of men have now spread themselves to all the corners of the world, and do infinitely exceed the small number was at the beginning. Nay, the extent of ground is of so little value without labour that I have heard it affirmed that in Spain itself a man may be permitted to plough, sow, and reap, without being disturbed, upon land he has no other title to, but only his making use of it. But, on the contrary, the inhabitants think themselves beholden to him who, by his industry on neglected, and consequently waste land, has increased the stock of corn, which they wanted. But be this as it will, which I lay no stress on, this I dare boldly affirm, that the same rule of propriety- viz., that every man should have as much as he could make use of, would hold still in the world, without straitening anybody, since there is land enough in the world to suffice double the inhabitants, had not the invention of money, and the tacit agreement of men to put a value on it, introduced (by consent) larger possessions and a right to them; which, how it has done, I shall by and by show more at large.
37. This is certain, that in the beginning, before the desire of having more than men needed had altered the intrinsic value of things, which depends only on their usefulness to the life of man, or had agreed that a little piece of yellow metal, which would keep without wasting or decay, should be worth a great piece of flesh or a whole heap of corn, though men had a right to appropriate by their labour, each one to himself, as much of the things of Nature as he could use, yet this could not be much, nor to the prejudice of others, where the same plenty was still left, to those who would use the same industry.
Before the appropriation of land, he who gathered as much of the wild fruit, killed, caught, or tamed as many of the beasts as he could- he that so employed his pains about any of the spontaneous products of Nature as any way to alter them from the state Nature put them in, by placing any of his labour on them, did thereby acquire a propriety in them; but if they perished in his possession without their due use- if the fruits rotted or the venison putrefied before he could spend it, he offended against the common law of Nature, and was liable to be punished: he invaded his neighbour′s share, for he had no right farther than his use called for any of them, and they might serve to afford him conveniencies of life.
38. The same measures governed the possession of land, too. Whatsoever he tilled and reaped, laid up and made use of before it spoiled, that was his peculiar right; whatsoever he enclosed, and could feed and make use of, the cattle and product was also his. But if either the grass of his enclosure rotted on the ground, or the fruit of his planting perished without gathering and laying up, this part of the earth, notwithstanding his enclosure, was still to be looked on as waste, and might be the possession of any other. Thus, at the beginning, Cain might take as much ground as he could till and make it his own land, and yet leave enough to Abel′s sheep to feed on: a few acres would serve for both their possessions. But as families increased and industry enlarged their stocks, their possessions enlarged with the need of them; but yet it was commonly without any fixed property in the ground they made use of till they incorporated, settled themselves together, and built cities, and then, by consent, they came in time to set out the bounds of their distinct territories and agree on limits between them and their neighbours, and by laws within themselves settled the properties of those of the same society. For we see that in that part of the world which was first inhabited, and therefore like to be best peopled, even as low down as Abraham′s time, they wandered with their flocks and their herds, which was their substance, freely up and down- and this Abraham did in a country where he was a stranger; whence it is plain that, at least, a great part of the land lay in common, that the inhabitants valued it not, nor claimed property in any more than they made use of; but when there was not room enough in the same place for their herds to feed together, they, by consent, as Abraham and Lot did (Gen. xiii. 5), separated and enlarged their pasture where it best liked them. And for the same reason, Esau went from his father and his brother, and planted in Mount Seir (Gen. 36. 6).
39. And thus, without supposing any private dominion and property in Adam over all the world, exclusive of all other men, which can no way be proved, nor any one′s property be made out from it, but supposing the world, given as it was to the children of men in common, we see how labour could make men distinct titles to several parcels of it for their private uses, wherein there could be no doubt of right, no room for quarrel.
40. Nor is it so strange as, perhaps, before consideration, it may appear, that the property of labour should be able to overbalance the community of land, for it is labour indeed that puts the difference of value on everything; and let any one consider what the difference is between an acre of land planted with tobacco or sugar, sown with wheat or barley, and an acre of the same land lying in common without any husbandry upon it, and he will find that the improvement of labour makes the far greater part of the value. I think it will be but a very modest computation to say, that of the products of the earth useful to the life of man, nine-tenths are the effects of labour. Nay, if we will rightly estimate things as they come to our use, and cast up the several expenses about them- what in them is purely owing to Nature and what to labour- we shall find that in most of them ninety-nine hundredths are wholly to be put on the account of labour.
41. There cannot be a clearer demonstration of anything than several nations of the Americans are of this, who are rich in land and poor in all the comforts of life; whom Nature, having furnished as liberally as any other people with the materials of plenty- i.e., a fruitful soil, apt to produce in abundance what might serve for food, raiment, and delight; yet, for want of improving it by labour, have not one hundredth part of the conveniencies we enjoy, and a king of a large and fruitful territory there feeds, lodges, and is clad worse than a day labourer in England.
42. To make this a little clearer, let us but trace some of the ordinary provisions of life, through their several progresses, before they come to our use, and see how much they receive of their value from human industry. Bread, wine, and cloth are things of daily use and great plenty; yet notwithstanding acorns, water, and leaves, or skins must be our bread, drink and clothing, did not labour furnish us with these more useful commodities. For whatever bread is more worth than acorns, wine than water, and cloth or silk than leaves, skins or moss, that is wholly owing to labour and industry. The one of these being the food and raiment which unassisted Nature furnishes us with; the other provisions which our industry and pains prepare for us, which how much they exceed the other in value, when any one hath computed, he will then see how much labour makes the far greatest part of the value of things we enjoy in this world; and the ground which produces the materials is scarce to be reckoned in as any, or at most, but a very small part of it; so little, that even amongst us, land that is left wholly to nature, that hath no improvement of pasturage, tillage, or planting, is called, as indeed it is, waste; and we shall find the benefit of it amount to little more than nothing.
43. An acre of land that bears here twenty bushels of wheat, and another in America, which, with the same husbandry, would do the like, are, without doubt, of the same natural, intrinsic value. But yet the benefit mankind receives from one in a year is worth five pounds, and the other possibly not worth a penny; if all the profit an Indian received from it were to be valued and sold here, at least I may truly say, not one thousandth. It is labour, then, which puts the greatest part of value upon land, without which it would scarcely be worth anything; it is to that we owe the greatest part of all its useful products; for all that the straw, bran, bread, of that acre of wheat, is more worth than the product of an acre of as good land which lies waste is all the effect of labour. For it is not barely the ploughman′s pains, the reaper′s and thresher′s toil, and the baker′s sweat, is to be counted into the bread we eat; the labour of those who broke the oxen, who digged and wrought the iron and stones, who felled and framed the timber employed about the plough, mill, oven, or any other utensils, which are a vast number, requisite to this corn, from its sowing to its being made bread, must all be charged on the account of labour, and received as an effect of that; Nature and the earth furnished only the almost worthless materials as in themselves. It would be a strange catalogue of things that industry provided and made use of about every loaf of bread before it came to our use if we could trace them; iron, wood, leather, bark, timber, stone, bricks, coals, lime, cloth, dyeing- drugs, pitch, tar, masts, ropes, and all the materials made use of in the ship that brought any of the commodities made use of by any of the workmen, to any part of the work, all which it would be almost impossible, at least too long, to reckon up.
44. From all which it is evident, that though the things of Nature are given in common, man (by being master of himself, and proprietor of his own person, and the actions or labour of it) had still in himself the great foundation of property; and that which made up the great part of what he applied to the support or comfort of his being, when invention and arts had improved the conveniences of life, was perfectly his own, and did not belong in common to others.
45. Thus labour, in the beginning, gave a right of property, wherever any one was pleased to employ it, upon what was common, which remained a long while, the far greater part, and is yet more than mankind makes use of Men at first, for the most part, contented themselves with what unassisted Nature offered to their necessities; and though afterwards, in some parts of the world, where the increase of people and stock, with the use of money, had made land scarce, and so of some value, the several communities settled the bounds of their distinct territories, and, by laws, within themselves, regulated the properties of the private men of their society, and so, by compact and agreement, settled the property which labour and industry began. And the leagues that have been made between several states and kingdoms, either expressly or tacitly disowning all claim and right to the land in the other′s possession, have, by common consent, given up their pretences to their natural common right, which originally they had to those countries; and so have, by positive agreement, settled a property amongst themselves, in distinct parts of the world; yet there are still great tracts of ground to be found, which the inhabitants thereof, not having joined with the rest of mankind in the consent of the use of their common money, lie waste, and are more than the people who dwell on it, do, or can make use of, and so still lie in common; though this can scarce happen amongst that part of mankind that have consented to the use of money.
46. The greatest part of things really useful to the life of man, and such as the necessity of subsisting made the first commoners of the world look after- as it doth the Americans now- are generally things of short duration, such as- if they are not consumed by use- will decay and perish of themselves. Gold, silver, and diamonds are things that fancy or agreement hath put the value on, more than real use and the necessary support of life. Now of those good things which Nature hath provided in common, every one hath a right (as hath been said) to as much as he could use; and had a property in all he could effect with his labour; all that his industry could extend to, to alter from the state Nature had put it in, was his. He that gathered a hundred bushels of acorns or apples had thereby a property in them; they were his goods as soon as gathered. He was only to look that he used them before they spoiled, else he took more than his share, and robbed others. And, indeed, it was a foolish thing, as well as dishonest, to hoard up more than he could make use of If he gave away a part to anybody else, so that it perished not uselessly in his possession, these he also made use of And if he also bartered away plums that would have rotted in a week, for nuts that would last good for his eating a whole year, he did no injury; he wasted not the common stock; destroyed no part of the portion of goods that belonged to others, so long as nothing perished uselessly in his hands. Again, if he would give his nuts for a piece of metal, pleased with its colour, or exchange his sheep for shells, or wool for a sparkling pebble or a diamond, and keep those by him all his life, he invaded not the right of others; he might heap up as much of these durable things as he pleased; the exceeding of the bounds of his just property not lying in the largeness of his possession, but the perishing of anything uselessly in it.
47. And thus came in the use of money; some lasting thing that men might keep without spoiling, and that, by mutual consent, men would take in exchange for the truly useful but perishable supports of life.
48. And as different degrees of industry were apt to give men possessions in different proportions, so this invention of money gave them the opportunity to continue and enlarge them. For supposing an island, separate from all possible commerce with the rest of the world, wherein there were but a hundred families, but there were sheep, horses, and cows, with other useful animals, wholesome fruits, and land enough for corn for a hundred thousand times as many, but nothing in the island, either because of its commonness or perishableness, fit to supply the place of money. What reason could any one have there to enlarge his possessions beyond the use of his family, and a plentiful supply to its consumption, either in what their own industry produced, or they could barter for like perishable, useful commodities with others? Where there is not something both lasting and scarce, and so valuable to be hoarded up, there men will not be apt to enlarge their possessions of land, were it never so rich, never so free for them to take. For I ask, what would a man value ten thousand or an hundred thousand acres of excellent land, ready cultivated and well stocked, too, with cattle, in the middle of the inland parts of America, where he had no hopes of commerce with other parts of the world, to draw money to him by the sale of the product? It would not be worth the enclosing, and we should see him give up again to the wild common of Nature whatever was more than would supply the conveniences of life, to be had there for him and his family.
49. Thus, in the beginning, all the world was America, and more so than that is now; for no such thing as money was anywhere 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.
50. 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 the consent of men have agreed to a disproportionate and unequal possession of the earth- I mean out of the bounds of society and compact; for in governments the laws regulate it; they having, by consent, found out and agreed in a way how a man may, rightfully and without injury, possess more than he himself can make use of by receiving gold and silver, which may continue long in a man′s possession without decaying for the overplus, and agreeing those metals should have a value.
51. 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.
52. IT may perhaps be censured an impertinent criticism in a discourse of this nature to find fault with words and names that have obtained in the world. And yet possibly it may not be amiss to offer new ones when the old are apt to lead men into mistakes, as this of paternal power probably has done, which seems so to place the power of parents over their children wholly in the father, as if the mother had no share in it; whereas if we consult reason or revelation, we shall find she has an equal title, which may give one reason to ask whether this might not be more properly called parental power? For whatever obligation Nature and the right of generation lays on children, it must certainly bind them equal to both the concurrent causes of it. And accordingly we see the positive law of God everywhere joins them together without distinction, when it commands the obedience of children: “Honour thy father and thy mother” (Exod. 20. 12); “Whosoever curseth his father or his mother” (Lev. 20. 9); “Ye shall fear every man his mother and his father” (Lev. 19. 3); “Children, obey your parents” (Eph. 6. 1), etc., is the style of the Old and New Testament.
53. Had but this one thing been well considered without looking any deeper into the matter, it might perhaps have kept men from running into those gross mistakes they have made about this power of parents, which however it might without any great harshness bear the name of absolute dominion and regal authority, when under the title of “paternal” power, it seemed appropriated to the father; would yet have sounded but oddly, and in the very name shown the absurdity, if this supposed absolute power over children had been called parental, and thereby discovered that it belonged to the mother too. For it will but very ill serve the turn of those men who contend so much for the absolute power and authority of the fatherhood, as they call it, that the mother should have any share in it. And it would have but ill supported the monarchy they contend for, when by the very name it appeared that that fundamental authority from whence they would derive their government of a single person only was not placed in one, but two persons jointly. But to let this of names pass.
54. Though I have said above (2) “That all men by nature are equal,” I cannot be supposed to understand all sorts of “equality.” Age or virtue may give men a just precedency. Excellency of parts and merit may place others above the common level. Birth may subject some, and alliance or benefits others, to pay an observance to those to whom Nature, gratitude, or other respects, may have made it due; and yet all this consists with the equality which all men are in respect of jurisdiction or dominion one over another, which was the equality I there spoke of as proper to the business in hand, being that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man.
55. Children, I confess, are not born in this full state of equality, though they are born to it. Their parents have a sort of rule and jurisdiction over them when they come into the world, and for some time after, but it is but a temporary one. The bonds of this subjection are like the swaddling clothes they are wrapt up in and supported by in the weakness of their infancy. Age and reason as they grow up loosen them, till at length they drop quite off, and leave a man at his own free disposal.
56. Adam was created a perfect man, his body and mind in full possession of their strength and reason, and so was capable from the first instance of his being to provide for his own support and preservation, and govern his actions according to the dictates of the law of reason God had implanted in him. From him the world is peopled with his descendants, who are all born infants, weak and helpless, without knowledge or understanding. But to supply the defects of this imperfect state till the improvement of growth and age had removed them, Adam and Eve, and after them all parents were, by the law of Nature, under an obligation to preserve, nourish and educate the children they had begotten, not as their own workmanship, but the workmanship of their own Maker, the Almighty, to whom they were to be accountable for them.
57. The law that was to govern Adam was the same that was to govern all his posterity, the law of reason. But his offspring having another way of entrance into the world, different from him, by a natural birth, that produced them ignorant, and without the use of reason, they were not presently under that law. For nobody can be under a law that is not promulgated to him; and this law being promulgated or made known by reason only, he that is not come to the use of his reason cannot be said to be under this law; and Adam′s children being not presently as soon as born under this law of reason, were not presently free. For law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law. Could they be happier without it, the law, as a useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, “a liberty for every man to do what he lists.” For who could be free, when every other man′s humour might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own.
58. The power, then, that parents have over their children arises from that duty which is incumbent on them, to take care of their offspring during the imperfect state of childhood. To inform the mind, and govern the actions of their yet ignorant nonage, till reason shall take its place and ease them of that trouble, is what the children want, and the parents are bound to. For God having given man an understanding to direct his actions, has allowed him a freedom of will and liberty of acting, as properly belonging thereunto within the bounds of that law he is under. But whilst he is in an estate wherein he has no understanding of his own to direct his will, he is not to have any will of his own to follow. He that understands for him must will for him too; he must prescribe to his will, and regulate his actions, but when he comes to the estate that made his father a free man, the son is a free man too.
59. This holds in all the laws a man is under, whether natural or civil. Is a man under the law of Nature? What made him free of that law? what gave him a free disposing of his property, according to his own will, within the compass of that law? I answer, an estate wherein he might be supposed capable to know that law, that so he might keep his actions within the bounds of it. When he has acquired that state, he is presumed to know how far that law is to be his guide, and how far he may make use of his freedom, and so comes to have it; till then, somebody else must guide him, who is presumed to know how far the law allows a liberty. If such a state of reason, such an age of discretion made him free, the same shall make his son free too. Is a man under the law of England? what made him free of that law- that is, to have the liberty to dispose of his actions and possessions, according to his own will, within the permission of that law? a capacity of knowing that law. Which is supposed, by that law, at the age of twenty-one, and in some cases sooner. If this made the father free, it shall make the son free too. Till then, we see the law allows the son to have no will, but he is to be guided by the will of his father or guardian, who is to understand for him. And if the father die and fail to substitute a deputy in this trust, if he hath not provided a tutor to govern his son during his minority, during his want of understanding, the law takes care to do it: some other must govern him and be a will to him till he hath attained to a state of freedom, and his understanding be fit to take the government of his will. But after that the father and son are equally free, as much as tutor and pupil, after nonage, equally subjects of the same law together, without any dominion left in the father over the life, liberty, or estate of his son, whether they be only in the state and under the law of Nature, or under the positive laws of an established government.
60. But if through defects that may happen out of the ordinary course of Nature, any one comes not to such a degree of reason wherein he might be supposed capable of knowing the law, and so living within the rules of it, he is never capable of being a free man, he is never let loose to the disposure of his own will; because he knows no bounds to it, has not understanding, its proper guide, but is continued under the tuition and government of others all the time his own understanding is incapable of that charge. And so lunatics and idiots are never set free from the government of their parents: “Children who are not as yet come unto those years whereat they may have, and innocents, which are excluded by a natural defect from ever having.” Thirdly: “Madmen, which, for the present, cannot possibly have the use of right reason to guide themselves, have, for their guide, the reason that guideth other men which are tutors over them, to seek and procure their good for them,” says Hooker (Eccl. Pol., lib. i., s. 7). All which seems no more than that duty which God and Nature has laid on man, as well as other creatures, to preserve their offspring till they can be able to shift for themselves, and will scarce amount to an instance or proof of parents′ regal authority.
61. Thus we are born free as we are born rational; not that we have actually the exercise of either: age that brings one, brings with it the other too. And thus we see how natural freedom and subjection to parents may consist together, and are both founded on the same principle. A child is free by his father′s title, by his father′s understanding, which is to govern him till he hath it of his own. The freedom of a man at years of discretion, and the subjection of a child to his parents, whilst yet short of it, are so consistent and so distinguishable that the most blinded contenders for monarchy, “by right of fatherhood,” cannot miss of it; the most obstinate cannot but allow of it. For were their doctrine all true, were the right heir of Adam now known, and, by that title, settled a monarch in his throne, invested with all the absolute unlimited power Sir Robert Filmer talks of, if he should die as soon as his heir were born, must not the child, notwithstanding he were never so free, never so much sovereign, be in subjection to his mother and nurse, to tutors and governors, till age and education brought him reason and ability to govern himself and others? The necessities of his life, the health of his body, and the information of his mind would require him to be directed by the will of others and not his own; and yet will any one think that this restraint and subjection were inconsistent with, or spoiled him of, that liberty or sovereignty he had a right to, or gave away his empire to those who had the government of his nonage? This government over him only prepared him the better and sooner for it. If anybody should ask me when my son is of age to be free, I shall answer, just when his monarch is of age to govern. “But at what time,” says the judicious Hooker (Eccl. Pol., lib. i., s. 6), “a man may be said to have attained so far forth the use of reason as sufficeth to make him capable of those laws whereby he is then bound to guide his actions; this is a great deal more easy for sense to discern than for any one, by skill and learning, to determine.”
62. Commonwealths themselves take notice of, and allow that there is a time when men are to begin to act like free men, and therefore, till that time, require not oaths of fealty or allegiance, or other public owning of, or submission to, the government of their countries.
63. The freedom then of man, and liberty of acting according to his own will, is grounded on his having reason, which is able to instruct him in that law he is to govern himself by, and make him know how far he is left to the freedom of his own will. To turn him loose to an unrestrained liberty, before he has reason to guide him, is not the allowing him the privilege of his nature to be free, but to thrust him out amongst brutes, and abandon him to a state as wretched and as much beneath that of a man as theirs. This is that which puts the authority into the parents′ hands to govern the minority of their children. God hath made it their business to employ this care on their offspring, and hath placed in them suitable inclinations of tenderness and concern to temper this power, to apply it as His wisdom designed it, to the children′s good as long as they should need to be under it.
64. But what reason can hence advance this care of the parents due to their offspring into an absolute, arbitrary dominion of the father, whose power reaches no farther than by such a discipline as he finds most effectual to give such strength and health to their bodies, such vigour and rectitude to their minds, as may best fit his children to be most useful to themselves and others, and, if it be necessary to his condition, to make them work when they are able for their own subsistence; but in this power the mother, too, has her share with the father.
65. Nay, this power so little belongs to the father by any peculiar right of Nature, but only as he is guardian of his children, that when he quits his care of them he loses his power over them, which goes along with their nourishment and education, to which it is inseparably annexed, and belongs as much to the foster-father of an exposed child as to the natural father of another. So little power does the bare act of begetting give a man over his issue, if all his care ends there, and this be all the title he hath to the name and authority of a father. And what will become of this paternal power in that part of the world where one woman hath more than one husband at a time? or in those parts of America where, when the husband and wife part, which happens frequently, the children are all left to the mother, follow her, and are wholly under her care and provision? And if the father die whilst the children are young, do they not naturally everywhere owe the same obedience to their mother, during their minority, as to their father, were he alive? And will any one say that the mother hath a legislative power over her children that she can make standing rules which shall be of perpetual obligation, by which they ought to regulate all the concerns of their property, and bound their liberty all the course of their lives, and enforce the observation of them with capital punishments? For this is the proper power of the magistrate, of which the father hath not so much as the shadow. His command over his children is but temporary, and reaches not their life or property. It is but a help to the weakness and imperfection of their nonage, a discipline necessary to their education. And though a father may dispose of his own possessions as he pleases when his children are out of danger of perishing for want, yet his power extends not to the lives or goods which either their own industry, or another′s bounty, has made theirs, nor to their liberty neither when they are once arrived to the enfranchisement of the years of discretion. The father′s empire then ceases, and he can from thenceforward no more dispose of the liberty of his son than that of any other man. And it must be far from an absolute or perpetual jurisdiction from which a man may withdraw himself, having licence from Divine authority to “leave father and mother and cleave to his wife.”
66. But though there be a time when a child comes to be as free from subjection to the will and command of his father as he himself is free from subjection to the will of anybody else, and they are both under no other restraint but that which is common to them both, whether it be the law of Nature or municipal law of their country, yet this freedom exempts not a son from that honour which he ought, by the law of God and Nature, to pay his parents, God having made the parents instruments in His great design of continuing the race of mankind and the occasions of life to their children. As He hath laid on them an obligation to nourish, preserve, and bring up their offspring, so He has laid on the children a perpetual obligation of honouring their parents, which, containing in it an inward esteem and reverence to be shown by all outward expressions, ties up the child from anything that may ever injure or affront, disturb or endanger the happiness or life of those from whom he received his, and engages him in all actions of defence, relief, assistance, and comfort of those by whose means he entered into being and has been made capable of any enjoyments of life. From this obligation no state, no freedom, can absolve children. But this is very far from giving parents a power of command over their children, or an authority to make laws and dispose as they please of their lives or liberties. It is one thing to owe honour, respect, gratitude, and assistance; another to require an absolute obedience and submission. The honour due to parents a monarch on his throne owes his mother, and yet this lessens not his authority nor subjects him to her government.
67. The subjection of a minor places in the father a temporary government which terminates with the minority of the child; and the honour due from a child places in the parents a perpetual right to respect, reverence, support, and compliance, to more or less, as the father′s care, cost, and kindness in his education has been more or less, and this ends not with minority, but holds in all parts and conditions of a man′s life. The want of distinguishing these two powers which the father hath, in the right of tuition, during minority, and the right of honour all his life, may perhaps have caused a great part of the mistakes about this matter. For, to speak properly of them, the first of these is rather the privilege of children and duty of parents than any prerogative of paternal power. The nourishment and education of their children is a charge so incumbent on parents for their children′s good, that nothing can absolve them from taking care of it. And though the power of commanding and chastising them go along with it, yet God hath woven into the principles of human nature such a tenderness for their offspring, that there is little fear that parents should use their power with too much rigour; the excess is seldom on the severe side, the strong bias of nature drawing the other way. And therefore God Almighty, when He would express His gentle dealing with the Israelites, He tells them that though He chastened them, “He chastened them as a man chastens his son” (Deut. 8. 5)- i.e., with tenderness and affection, and kept them under no severer discipline than what was absolutely best for them, and had been less kindness, to have slackened. This is that power to which children are commanded obedience, that the pains and care of their parents may not be increased or ill-rewarded.
68. On the other side, honour and support all that which gratitude requires to return; for the benefits received by and from them is the indispensable duty of the child and the proper privilege of the parents. This is intended for the parents′ advantage, as the other is for the child′s; though education, the parents′ duty, seems to have most power, because the ignorance and infirmities of childhood stand in need of restraint and correction, which is a visible exercise of rule and a kind of dominion. And that duty which is comprehended in the word “honour” requires less obedience, though the obligation be stronger on grown than younger children. For who can think the command, “Children, obey your parents,” requires in a man that has children of his own the same submission to his father as it does in his yet young children to him, and that by this precept he were bound to obey all his father′s commands, if, out of a conceit of authority, he should have the indiscretion to treat him still as a boy?
69. The first part, then, of paternal power, or rather duty, which is education, belongs so to the father that it terminates at a certain season. When the business of education is over it ceases of itself, and is also alienable before. For a man may put the tuition of his son in other hands; and he that has made his son an apprentice to another has discharged him, during that time, of a great part of his obedience, both to himself and to his mother. But all the duty of honour, the other part, remains nevertheless entire to them; nothing can cancel that. It is so inseparable from them both, that the father′s authority cannot dispossess the mother of this right, nor can any man discharge his son from honouring her that bore him. But both these are very far from a power to make laws, and enforcing them with penalties that may reach estate, liberty, limbs, and life. The power of commanding ends with nonage, and though after that honour and respect, support and defence, and whatsoever gratitude can oblige a man to, for the highest benefits he is naturally capable of be always due from a son to his parents, yet all this puts no sceptre into the father′s hand, no sovereign power of commanding. He has no dominion over his son′s property or actions, nor any right that his will should prescribe to his son′s in all things; however, it may become his son in many things, not very inconvenient to him and his family, to pay a deference to it.
70. A man may owe honour and respect to an ancient or wise man, defence to his child or friend, relief and support to the distressed, and gratitude to a benefactor, to such a degree that all he has, all he can do, cannot sufficiently pay it. But all these give no authority, no right of making laws to any one over him from whom they are owing. And it is plain all this is due, not to the bare title of father, not only because as has been said, it is owing to the mother too, but because these obligations to parents, and the degrees of what is required of children, may be varied by the different care and kindness trouble and expense, is often employed upon one child more than another.
71. This shows the reason how it comes to pass that parents in societies, where they themselves are subjects, retain a power over their children and have as much right to their subjection as those who are in the state of Nature, which could not possibly be if all political power were only paternal, and that, in truth, they were one and the same thing; for then, all paternal power being in the prince, the subject could naturally have none of it. But these two powers, political and paternal, are so perfectly distinct and separate, and built upon so different foundations, and given to so different ends, that every subject that is a father has as much a paternal power over his children as the prince has over his. And every prince that has parents owes them as much filial duty and obedience as the meanest of his subjects do to theirs, and can therefore contain not any part or degree of that kind of dominion which a prince or magistrate has over his subject.
72. Though the obligation on the parents to bring up their children, and the obligation on children to honour their parents, contain all the power, on the one hand, and submission on the other, which are proper to this relation, yet there is another power ordinarily in the father, whereby he has a tie on the obedience of his children, which, though it be common to him with other men, yet the occasions of showing it, almost constantly happening to fathers in their private families and in instances of it elsewhere being rare, and less taken notice of, it passes in the world for a part of “paternal jurisdiction.” And this is the power men generally have to bestow their estates on those who please them best. The possession of the father being the expectation and inheritance of the children ordinarily, in certain proportions, according to the law and custom of each country, yet it is commonly in the father′s power to bestow it with a more sparing or liberal hand, according as the behaviour of this or that child hath comported with his will and humour.
73. This is no small tie to the obedience of children; and there being always annexed to the enjoyment of land a submission to the government of the country of which that land is a part, it has been commonly supposed that a father could oblige his posterity to that government of which he himself was a subject, that his compact held them; whereas, it being only a necessary condition annexed to the land which is under that government, reaches only those who will take it on that condition, and so is no natural tie or engagement, but a voluntary submission; for every man′s children being, by Nature, as free as himself or any of his ancestors ever were, may, whilst they are in that freedom, choose what society they will join themselves to, what commonwealth they will put themselves under. But if they will enjoy the inheritance of their ancestors, they must take it on the same terms their ancestors had it, and submit to all the conditions annexed to such a possession. By this power, indeed, fathers oblige their children to obedience to themselves even when they are past minority, and most commonly, too, subject them to this or that political power. But neither of these by any peculiar right of fatherhood, but by the reward they have in their hands to enforce and recompense such a compliance, and is no more power than what a Frenchman has over an Englishman, who, by the hopes of an estate he will leave him, will certainly have a strong tie on his obedience; and if when it is left him, he will enjoy it, he must certainly take it upon the conditions annexed to the possession of land in that country where it lies, whether it be France or England.
74. To conclude, then, though the father′s power of commanding extends no farther than the minority of his children, and to a degree only fit for the discipline and government of that age; and though that honour and respect, and all that which the Latins called piety, which they indispensably owe to their parents all their lifetime, and in all estates, with all that support and defence, is due to them, gives the father no power of governing- i.e., making laws and exacting penalties on his children; though by this he has no dominion over the property or actions of his son, yet it is obvious to conceive how easy it was, in the first ages of the world, and in places still where the thinness of people gives families leave to separate into unpossessed quarters, and they have room to remove and plant themselves in yet vacant habitations, for the father of the family to become the prince of it;* he had been a ruler from the beginning of the infancy of his children; and when they were grown up, since without some government it would be hard for them to live together, it was likeliest it should, by the express or tacit consent of the children, be in the father, where it seemed, without any change, barely to continue. And when, indeed, nothing more was required to it than the permitting the father to exercise alone in his family that executive power of the law of Nature which every free man naturally hath, and by that permission resigning up to him a monarchical power whilst they remained in it. But that this was not by any paternal right, but only by the consent of his children, is evident from hence, that nobody doubts but if a stranger, whom chance or business had brought to his family, had there killed any of his children, or committed any other act, he might condemn and put him to death, or otherwise have punished him as well as any of his children. which was impossible he should do by virtue of any paternal authority over one who was not his child, but by virtue of that executive power of the law of Nature which, as a man, he had a right to; and he alone could punish him in his family where the respect of his children had laid by the exercise of such a power, to give way to the dignity and authority they were willing should remain in him above the rest of his family.
75. Thus it was easy and almost natural for children, by a tacit and almost natural consent, to make way for the father′s authority and government. They had been accustomed in their childhood to follow his direction, and to refer their little differences to him; and when they were men, who was fitter to rule them? Their little properties and less covetousness seldom afforded greater controversies; and when any should arise, where could they have a fitter umpire than he, by whose care they had every one been sustained and brought up. and who had a tenderness for them all? It is no wonder that they made no distinction betwixt minority and full age, nor looked after one-and-twenty, or any other age, that might make them the free disposers of themselves and fortunes, when they could have no desire to be out of their pupilage. The government they had been under during it continued still to be more their protection than restraint; and they could nowhere find a greater security to their peace, liberties, and fortunes than in the rule of a father.
76. Thus the natural fathers of families, by an insensible change, became the politic monarchs of them too; and as they chanced to live long, and leave able and worthy heirs for several successions or otherwise, so they laid the foundations of hereditary or elective kingdoms under several constitutions and manors, according as chance, contrivance, or occasions happened to mould them. But if princes have their titles in the father′s right, and it be a sufficient proof of the natural right of fathers to political authority, because they commonly were those in whose hands we find, de facto, the exercise of government, I say, if this argument be good, it will as strongly prove that all princes, nay, princes only, ought to be priests, since it is as certain that in the beginning “the father of the family was priest, as that he was ruler in his own household.”
77. GOD, having made man such a creature that, in His own judgment, it was not good for him to be alone, put him under strong obligations of necessity, convenience, and inclination, to drive him into society, as well as fitted him with understanding and language to continue and enjoy it. The first society was between man and wife, which gave beginning to that between parents and children, to which, in time, that between master and servant came to be added. And though all these might, and commonly did, meet together, and make up but one family, wherein the master or mistress of it had some sort of rule proper to a family, each of these, or all together, came short of “political society,” as we shall see if we consider the different ends, ties, and bounds of each of these.
78. Conjugal society is made by a voluntary compact between man and woman, and though it consist chiefly in such a communion and right in one another′s bodies as is necessary to its chief end, procreation, yet it draws with it mutual support and assistance, and a communion of interests too, as necessary not only to unite their care and affection, but also necessary to their common offspring, who have a right to be nourished and maintained by them till they are able to provide for themselves.
79. For the end of conjunction between male and female being not barely procreation, but the continuation of the species, this conjunction betwixt male and female ought to last, even after procreation, so long as is necessary to the nourishment and support of the young ones, who are to be sustained by those that got them till they are able to shift and provide for themselves. This rule, which the infinite wise Maker hath set to the works of His hands, we find the inferior creatures steadily obey. In those vivaporous animals which feed on grass the conjunction between male and female lasts no longer than the very act of copulation, because the teat of the dam being sufficient to nourish the young till it be able to feed on grass. the male only begets, but concerns not himself for the female or young, to whose sustenance he can contribute nothing. But in beasts of prey the conjunction lasts longer because the dam, not being able well to subsist herself and nourish her numerous offspring by her own prey alone (a more laborious as well as more dangerous way of living than by feeding on grass), the assistance of the male is necessary to the maintenance of their common family, which cannot subsist till they are able to prey for themselves, but by the joint care of male and female. The same is observed in all birds (except some domestic ones, where plenty of food excuses the cock from feeding and taking care of the young brood), whose young, needing food in the nest, the cock and hen continue mates till the young are able to use their wings and provide for themselves.
80. And herein, I think, lies the chief, if not the only reason, why the male and female in mankind are tied to a longer conjunction than other creatures- viz., because the female is capable of conceiving, and, de facto, is commonly with child again, and brings forth too a new birth, long before the former is out of a dependency for support on his parents′ help and able to shift for himself and has all the assistance due to him from his parents, whereby the father, who is bound to take care for those he hath begot, is under an obligation to continue in conjugal society with the same woman longer than other creatures, whose young, being able to subsist of themselves before the time of procreation returns again, the conjugal bond dissolves of itself, and they are at liberty till Hymen, at his usual anniversary season, summons them again to choose new mates. Wherein one cannot but admire the wisdom of the great Creator, who, having given to man an ability to lay up for the future as well as supply the present necessity, hath made it necessary that society of man and wife should be more lasting than of male and female amongst other creatures, that so their industry might be encouraged, and their interest better united, to make provision and lay up goods for their common issue, which uncertain mixture, or easy and frequent solutions of conjugal society, would mightily disturb.
81. But though these are ties upon mankind which make the conjugal bonds more firm and lasting in a man than the other species of animals, yet it would give one reason to inquire why this compact, where procreation and education are secured and inheritance taken care for, may not be made determinable, either by consent, or at a certain time, or upon certain conditions, as well as any other voluntary compacts, there being no necessity, in the nature of the thing, nor to the ends of it, that it should always be for life- I mean, to such as are under no restraint of any positive law which ordains all such contracts to be perpetual.
82. But the husband and wife, though they have but one common concern, yet having different understandings, will unavoidably sometimes have different wills too. It therefore being necessary that the last determination (i.e., the rule) should be placed somewhere, it naturally falls to the man′s share as the abler and the stronger. But this, reaching but to the things of their common interest and property, leaves the wife in the full and true possession of what by contract is her peculiar right, and at least gives the husband no more power over her than she has over his life; the power of the husband being so far from that of an absolute monarch that the wife has, in many cases, a liberty to separate from him where natural right or their contract allows it, whether that contract be made by themselves in the state of Nature or by the customs or laws of the country they live in, and the children, upon such separation, fall to the father or mother′s lot as such contract does determine.
83. For all the ends of marriage being to be obtained under politic government, as well as in the state of Nature, the civil magistrate doth not abridge the right or power of either, naturally necessary to those ends- viz., procreation and mutual support and assistance whilst they are together, but only decides any controversy that may arise between man and wife about them. If it were otherwise, and that absolute sovereignty and power of life and death naturally belonged to the husband, and were necessary to the society between man and wife, there could be no matrimony in any of these countries where the husband is allowed no such absolute authority. But the ends of matrimony requiring no such power in the husband, it was not at all necessary to it. The condition of conjugal society put it not in him; but whatsoever might consist with procreation and support of the children till they could shift for themselves- mutual assistance, comfort, and maintenance- might be varied and regulated by that contract which first united them in that society, nothing being necessary to any society that is not necessary to the ends for which it is made.
84. The society betwixt parents and children, and the distinct rights and powers belonging respectively to them, I have treated of so largely in the foregoing chapter that I shall not here need to say anything of it; and I think it is plain that it is far different from a politic society.
85. Master and servant are names as old as history, but given to those of far different condition; for a free man makes himself a servant to another by selling him for a certain time the service he undertakes to do in exchange for wages he is to receive; and though this commonly puts him into the family of his master, and under the ordinary discipline thereof, yet it gives the master but a temporary power over him, and no greater than what is contained in the contract between them. But there is another sort of servant which by a peculiar name we call slaves, who being captives taken in a just war are, by the right of Nature, subjected to the absolute dominion and arbitrary power of their masters. These men having, as I say, forfeited their lives and, with it, their liberties, and lost their estates, and being in the state of slavery, not capable of any property, cannot in that state be considered as any part of civil society, the chief end whereof is the preservation of property.
86. Let us therefore consider a master of a family with all these subordinate relations of wife, children, servants and slaves, united under the domestic rule of a family, with what resemblance soever it may have in its order, offices, and number too, with a little commonwealth, yet is very far from it both in its constitution, power, and end; or if it must be thought a monarchy, and the paterfamilias the absolute monarch in it, absolute monarchy will have but a very shattered and short power, when it is plain by what has been said before, that the master of the family has a very distinct and differently limited power both as to time and extent over those several persons that are in it; for excepting the slave (and the family is as much a family, and his power as paterfamilias as great, whether there be any slaves in his family or no) he has no legislative power of life and death over any of them, and none too but what a mistress of a family may have as well as he. And he certainly can have no absolute power over the whole family who has but a very limited one over every individual in it. But how a family, or any other society of men, differ from that which is properly political society, we shall best see by considering wherein political society itself consists.
87. Man being born, as has been proved, with a title to perfect freedom and an uncontrolled enjoyment of all the rights and privileges of the law of Nature, equally with any other man, or number of men in the world, hath by nature a power not only to preserve his property- that is, his life, liberty, and estate, against the injuries and attempts of other men, but to judge of and punish the breaches of that law in others, as he is persuaded the offence deserves, even with death itself, in crimes where the heinousness of the fact, in his opinion, requires it. But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto punish the offences of all those of that society, there, and there only, is political society where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, and by understanding indifferent rules and men authorised by the community for their execution, decides all the differences that may happen between any members of that society concerning any matter of right, and punishes those offences which any member hath committed against the society with such penalties as the law has established; whereby it is easy to discern who are, and are not, in political society together. Those who are united into one body, and have a common established law and judicature to appeal to, with authority to decide controversies between them and punish offenders, are in civil society one with another; but those who have no such common appeal, I mean on earth, are still in the state of Nature, each being where there is no other, judge for himself and executioner; which is, as I have before showed it, the perfect state of Nature.
88. And thus the commonwealth comes by a power to set down what punishment shall belong to the several transgressions they think worthy of it, committed amongst the members of that society (which is the power of making laws), as well as it has the power to punish any injury done unto any of its members by any one that is not of it (which is the power of war and peace); and all this for the preservation of the property of all the members of that society, as far as is possible. But though every man entered into society has quitted his power to punish offences against the law of Nature in prosecution of his own private judgment, yet with the judgment of offences which he has given up to the legislative, in all cases where he can appeal to the magistrate, he has given up a right to the commonwealth to employ his force for the execution of the judgments of the commonwealth whenever he shall be called to it, which, indeed, are his own judgements, they being made by himself or his representative. And herein we have the original of the legislative and executive power of civil society, which is to judge by standing laws how far offences are to be punished when committed within the commonwealth; and also by occasional judgments founded on the present circumstances of the fact, how far injuries from without are to be vindicated, and in both these to employ all the force of all the members when there shall be need.
89. Wherever, therefore, any number of men so unite into one society as to quit every one his executive power of the law of Nature, and to resign it to the public, there and there only is a political or civil society. And this is done wherever any number of men, in the state of Nature, enter into society to make one people one body politic under one supreme government: or else when any one joins himself to, and incorporates with any government already made. For hereby he authorises the society, or which is all one, the legislative thereof, to make laws for him as the public good of the society shall require, to the execution whereof his own assistance (as to his own decrees) is due. And this puts men out of a state of Nature into that of a commonwealth, by setting up a judge on earth with authority to determine all the controversies and redress the injuries that may happen to any member of the commonwealth, which judge is the legislative or magistrates appointed by it. And wherever there are any number of men, however associated, that have no such decisive power to appeal to, there they are still in the state of Nature.
90. And hence it is evident that absolute monarchy, which by some men is counted for the only government in the world, is indeed inconsistent with civil society, and so can be not form of civil government at all. For the end of civil society being to avoid and remedy those inconveniences of the state of Nature which necessarily follow from every man′s being judge in his own case, by setting up a known authority to which every one of that society may appeal upon any injury received, or controversy that may arise, and which every one of the society ought to obey.* Wherever any persons are who have not such an authority to appeal to, and decide any difference between them there, those persons are still in the state of Nature. And so is every absolute prince in respect of those who are under his dominion.
91. For he being supposed to have all, both legislative and executive, power in himself alone, there is no judge to be found, no appeal lies open to any one, who may fairly and indifferently, and with authority decide, and from whence relief and redress may be expected of any injury or inconveniency that may be suffered from him, or by his order. So that such a man, however entitled, Czar, or Grand Signior, or how you please, is as much in the state of Nature, with all under his dominion, as he is with the rest of mankind. For wherever any two men are, who have no standing rule and common judge to appeal to on earth, for the determination of controversies of right betwixt them, there they are still in the state of Nature, and under all the inconveniencies of it, with only this woeful difference to the subject, or rather slave of an absolute prince.* That whereas, in the ordinary state of Nature, he has a liberty to judge of his right, according to the best of his power to maintain it; but whenever his property is invaded by the will and order of his monarch, he has not only no appeal, as those in society ought to have, but, as if he were degraded from the common state of rational creatures, is denied a liberty to judge of, or defend his right, and so is exposed to all the misery and inconveniencies that a man can fear from one, who being in the unrestrained state of Nature, is yet corrupted with flattery and armed with power.
92. For he that thinks absolute power purifies men′s blood, and corrects the baseness of human nature, need read but the history of this, or any other age, to be convinced to the contrary. He that would have been insolent and injurious in the woods of America would not probably be much better on a throne, where perhaps learning and religion shall be found out to justify all that he shall do to his subjects, and the sword presently silence all those that dare question it. For what the protection of absolute monarchy is, what kind of fathers of their countries it makes princes to be, and to what a degree of happiness and security it carries civil society, where this sort of government is grown to perfection, he that will look into the late relation of Ceylon may easily see.
93. In absolute monarchies, indeed, as well as other governments of the world, the subjects have an appeal to the law, and judges to decide any controversies, and restrain any violence that may happen betwixt the subjects themselves, one amongst another. This every one thinks necessary, and believes; he deserves to be thought a declared enemy to society and mankind who should go about to take it away. But whether this be from a true love of mankind and society, and such a charity as we owe all one to another, there is reason to doubt. For this is no more than what every man, who loves his own power, profit, or greatness, may, and naturally must do, keep those animals from hurting or destroying one another who labour and drudge only for his pleasure and advantage; and so are taken care of, not out of any love the master has for them, but love of himself, and the profit they bring him. For if it be asked what security, what fence is there in such a state against the violence and oppression of this absolute ruler, the very question can scarce be borne. They are ready to tell you that it deserves death only to ask after safety. Betwixt subject and subject, they will grant, there must be measures, laws, and judges for their mutual peace and security. But as for the ruler, he ought to be absolute, and is above all such circumstances; because he has a power to do more hurt and wrong, it is right when he does it. To ask how you may be guarded from or injury on that side, where the strongest hand is to do it, is presently the voice of faction and rebellion. As if when men, quitting the state of Nature, entered into society, they agreed that all of them but one should be under the restraint of laws; but that he should still retain all the liberty of the state of Nature, increased with power, and made licentious by impunity. This is to think that men are so foolish that they take care to avoid what mischiefs may be done them by polecats or foxes, but are content, nay, think it safety, to be devoured by lions.
94. But, whatever flatterers may talk to amuse people′s understandings, it never hinders men from feeling; and when they perceive that any man, in what station soever, is out of the bounds of the civil society they are of, and that they have no appeal, on earth, against any harm they may receive from him, they are apt to think themselves in the state of Nature, in respect of him whom they find to be so; and to take care, as soon as they can, to have that safety and security, in civil society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first, as shall be showed more at large hereafter, in the following part of this discourse, some one good and excellent man having got a pre-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution but the assurance they had of his uprightness and wisdom; yet when time giving authority, and, as some men would persuade us, sacredness to customs, which the negligent and unforeseeing innocence of the first ages began, had brought in successors of another stamp, the people finding their properties not secure under the government as then it was* (whereas government has no other end but the preservation of property), could never be safe, nor at rest, nor think themselves in civil society, till the legislative was so placed in collective bodies of men, call them senate, parliament, or what you please, by which means every single person became subject equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority, avoid the force of the law, when once made, nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependants. No man in civil society can be exempted from the laws of it. For if any man may do what he thinks fit and there be no appeal on earth for redress or security against any harm he shall do, I ask whether he be not perfectly still in the state of Nature, and so can be no part or member of that civil society, unless any one will say the state of Nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.*
95. MEN being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent, which is done by agreeing with other men, to join and unite into a community for their comfortable, safe, and peaceable living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left, as they were, in the liberty of the state of Nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.
96. For, when any number of men have, by the consent of every individual, made a community, they have thereby made that community one body, with a power to act as one body, which is only by the will and determination of the majority. For that which acts any community, being only the consent of the individuals of it, and it being one body, must move one way, it is necessary the body should move that way whither the greater force carries it, which is the consent of the majority, or else it is impossible it should act or continue one body, one community, which the consent of every individual that united into it agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see that in assemblies empowered to act by positive laws where no number is set by that positive law which empowers them, the act of the majority passes for the act of the whole, and of course determines as having, by the law of Nature and reason, the power of the whole.
97. And thus every man, by consenting with others to make one body politic under one government, puts himself under an obligation to every one of that society to submit to the determination of the majority, and to be concluded by it; or else this original compact, whereby he with others incorporates into one society, would signify nothing, and be no compact if he be left free and under no other ties than he was in before in the state of Nature. For what appearance would there be of any compact? What new engagement if he were no farther tied by any decrees of the society than he himself thought fit and did actually consent to? This would be still as great a liberty as he himself had before his compact, or any one else in the state of Nature, who may submit himself and consent to any acts of it if he thinks fit.
98. For if the consent of the majority shall not in reason be received as the act of the whole, and conclude every individual, nothing but the consent of every individual can make anything to be the act of the whole, which, considering the infirmities of health and avocations of business, which in a number though much less than that of a commonwealth, will necessarily keep many away from the public assembly; and the variety of opinions and contrariety of interests which unavoidably happen in all collections of men, it is next impossible ever to be had. And, therefore, if coming into society be upon such terms, it will be only like Cato′s coming into the theatre, tantum ut exiret. Such a constitution as this would make the mighty leviathan of a shorter duration than the feeblest creatures, and not let it outlast the day it was born in, which cannot be supposed till we can think that rational creatures should desire and constitute societies only to be dissolved. For where the majority cannot conclude the rest, there they cannot act as one body, and consequently will be immediately dissolved again.
99. Whosoever, therefore, out of a state of Nature unite into a community, must be understood to give up all the power necessary to the ends for which they unite into society to the majority of the community, unless they expressly agreed in any number greater than the majority. And this is done by barely agreeing to unite into one political society, which is all the compact that is, or needs be, between the individuals that enter into or make up a commonwealth. And thus, that which begins and actually constitutes any political society is nothing but the consent of any number of freemen capable of majority, to unite and incorporate into such a society. And this is that, and that only, which did or could give beginning to any lawful government in the world.
100. To this I find two objections made: 1. That there are no instances to be found in story of a company of men, independent and equal one amongst another, that met together, and in this way began and set up a government. 2. It is impossible of right that men should do so, because all men, being born under government, they are to submit to that, and are not at liberty to begin a new one.
101. To the first there is this to answer: That it is not at all to be wondered that history gives us but a very little account of men that lived together in the state of Nature. The inconveniencies of that condition, and the love and want of society, no sooner brought any number of them together, but they presently united and in corporated if they designed to continue together. And if we may not suppose men ever to have been in the state of Nature, because we hear not much of them in such a state, we may as well suppose the armies of Salmanasser or Xerxes were never children, because we hear little of them till they were men and embodied in armies. Government is everywhere antecedent to records, and letters seldom come in amongst a people till a long continuation of civil society has, by other more necessary arts, provided for their safety, ease, and plenty. And then they begin to look after the history of their founders, and search into their original when they have outlived the memory of it. For it is with commonwealths as with particular persons, they are commonly ignorant of their own births and infancies; and if they know anything of it, they are beholding for it to the accidental records that others have kept of it. And those that we have of the beginning of any polities in the world, excepting that of the Jews, where God Himself immediately interposed, and which favours not at all paternal dominion, are all either plain instances of such a beginning as I have mentioned, or at least have manifest footsteps of it.
102. He must show a strange inclination to deny evident matter of fact, when it agrees not with his hypothesis, who will not allow that the beginning of Rome and Venice were by the uniting together of several men, free and independent one of another, amongst whom there was no natural superiority or subjection. And if Josephus Acosta′s word may be taken, he tells us that in many parts of America there was no government at all. “There are great and apparent conjectures,” says he, “that these men [speaking of those of Peru] for a long time had neither kings nor commonwealths, but lived in troops, as they do this day in Florida- the Cheriquanas, those of Brazil, and many other nations, which have no certain kings, but, as occasion is offered in peace or war, they choose their captains as they please” (lib. i. cap. 25). If it be said, that every man there was born subject to his father, or the head of his family. that the subjection due from a child to a father took away not his freedom of uniting into what political society he thought fit, has been already proved; but be that as it will, these men, it is evident, were actually free; and whatever superiority some politicians now would place in any of them, they themselves claimed it not; but, by consent, were all equal, till, by the same consent, they set rulers over themselves. So that their politic societies all began from a voluntary union, and the mutual agreement of men freely acting in the choice of their governors and forms of government.
103. And I hope those who went away from Sparta, with Palantus, mentioned by Justin, will be allowed to have been freemen independent one of another, and to have set up a government over themselves by their own consent. Thus I have given several examples out of history of people, free and in the state of Nature, that, being met together, incorporated and began a commonwealth. And if the want of such instances be an argument to prove that government were not nor could not be so begun, I suppose the contenders for paternal empire were better let it alone than urge it against natural liberty; for if they can give so many instances out of history of governments begun upon paternal right, I think (though at least an argument from what has been to what should of right be of no great force) one might, without any great danger, yield them the cause. But if I might advise them in the case, they would do well not to search too much into the original of governments as they have begun de facto, lest they should find at the foundation of most of them something very little favourable to the design they promote, and such a power as they contend for.
104. But, to conclude: reason being plain on our side that men are naturally free; and the examples of history showing that the governments of the world, that were begun in peace, had their beginning laid on that foundation, and were made by the consent of the people; there can be little room for doubt, either where the right is, or what has been the opinion or practice of mankind about the first erecting of governments.
105. I will not deny that if we look back, as far as history will direct us, towards the original of commonwealths, we shall generally find them under the government and administration of one man. And I am also apt to believe that where a family was numerous enough to subsist by itself, and continued entire together, without mixing with others, as it often happens, where there is much land and few people, the government commonly began in the father. For the father having, by the law of Nature, the same power, with every man else, to punish, as he thought fit, any offences against that law, might thereby punish his transgressing children, even when they were men, and out of their pupilage; and they were very likely to submit to his punishment, and all join with him against the offender in their turns, giving him thereby power to execute his sentence against any transgression, and so, in effect, make him the law-maker and governor over all that remained in conjunction with his family. He was fittest to be trusted; paternal affection secured their property and interest under his care, and the custom of obeying him in their childhood made it easier to submit to him rather than any other. If, therefore, they must have one to rule them, as government is hardly to be avoided amongst men that live together, who so likely to be the man as he that was their common father, unless negligence, cruelty, or any other defect of mind or body, made him unfit for it? But when either the father died. and left his next heir- for want of age, wisdom, courage, or any other qualities- less fit for rule, or where several families met and consented to continue together, there, it is not to be doubted, but they used their natural freedom to set up him whom they judged the ablest and most likely to rule well over them. Conformable hereunto we find the people of America, who- living out of the reach of the conquering swords and spreading domination of the two great empires of Peru and Mexico- enjoyed their own natural freedom, though, caeteris paribus, they commonly prefer the heir of their deceased king; yet, if they find him any way weak or incapable, they pass him by, and set up the stoutest and bravest man for their ruler.
106. Thus, though looking back as far as records give us any account of peopling the world, and the history of nations, we commonly find the government to be in one hand, yet it destroys not that which I affirm- viz., that the beginning of politic society depends upon the consent of the individuals to join into and make one society, who, when they are thus incorporated, might set up what form of government they thought fit. But this having given occasion to men to mistake and think that, by Nature, government was monarchical, and belonged to the father, it may not be amiss here to consider why people, in the beginning, generally pitched upon this form, which, though perhaps the father′s pre-eminency might, in the first institution of some commonwealths, give a rise to and place in the beginning the power in one hand, yet it is plain that the reason that continued the form of government in a single person was not any regard or respect to paternal authority, since all petty monarchies- that is, almost all monarchies, near their original, have been commonly, at least upon occasion, elective.
107. First, then, in the beginning of things, the father′s government of the childhood of those sprung from him having accustomed them to the rule of one man, and taught them that where it was exercised with care and skill, with affection and love to those under it, it was sufficient to procure and preserve men (all the political happiness they sought for in society), it was no wonder that they should pitch upon and naturally run into that form of government which, from their infancy, they had been all accustomed to, and which, by experience, they had found both easy and safe. To which if we add, that monarchy being simple and most obvious to men, whom neither experience had instructed in forms of government, nor the ambition or insolence of empire had taught to beware of the encroachments of prerogative or the inconveniencies of absolute power, which monarchy, in succession, was apt to lay claim to and bring upon them; it was not at all strange that they should not much trouble themselves to think of methods of restraining any exorbitances of those to whom they had given the authority over them, and of balancing the power of government by placing several parts of it in different hands. They had neither felt the oppression of tyrannical dominion, nor did the fashion of the age, nor their possessions or way of living, which afforded little matter for covetousness or ambition, give them any reason to apprehend or provide against it; and, therefore, it is no wonder they put themselves into such a frame of government as was not only, as I said, most obvious and simple, but also best suited to their present state and condition, which stood more in need of defence against foreign invasions and injuries than of multiplicity of laws where there was but very little property, and wanted not variety of rulers and abundance of officers to direct and look after their execution where there were but few trespassers and few offenders. Since, then, those who liked one another so well as to join into society cannot but be supposed to have some acquaintance and friendship together, and some trust one in another, they could not but have greater apprehensions of others than of one another; and, therefore, their first care and thought cannot but be supposed to be, how to secure themselves against foreign force. It was natural for them to put themselves under a frame of government which might best serve to that end, and choose the wisest and bravest man to conduct them in their wars and lead them out against their enemies, and in this chiefly be their ruler.
108. Thus we see that the kings of the Indians, in America, which is still a pattern of the first ages in Asia and Europe, whilst the inhabitants were too few for the country, and want of people and money gave men no temptation to enlarge their possessions of land or contest for wider extent of ground, are little more than generals of their armies; and though they command absolutely in war, yet at home, and in time of peace, they exercise very little dominion, and have but a very moderate sovereignty, the resolutions of peace and war being ordinarily either in the people or in a council, though the war itself, which admits not of pluralities of governors, naturally evolves the command into the king′s sole authority.
109. And thus, in Israel itself, the chief business of their judges and first kings seems to have been to be captains in war and leaders of their armies, which (besides what is signified by “going out and in before the people,” which was, to march forth to war and home again at the heads of their forces) appears plainly in the story of Jephtha. The Ammonites making war upon Israel, the Gileadites, in fear, send to Jephtha, a bastard of their family, whom they had cast off, and article with him, if he will assist them against the Ammonites, to make him their ruler, which they do in these words: “And the people made him head and captain over them” (Judges 11. 11), which was, as it seems, all one as to be judge. “And he judged Israel” (Judges 12. 7)- that is, was their captain-general- “six years.” So when Jotham upbraids the Shechemites with the obligation they had to Gideon, who had been their judge and ruler, he tells them: “He fought for you, and adventured his life for, and delivered you out of the hands of Midian” (Judges 9. 17). Nothing mentioned of him but what he did as a general, and, indeed, that is all is found in his history, or in any of the rest of the judges. And Abimelech particularly is called king, though at most he was but their general. And when, being weary of the ill- conduct of Samuel′s sons, the children of Israel desired a king, “like all the nations, to judge them, and to go out before them, and to fight their battles” (1 Sam. 8. 20), God, granting their desire, says to Samuel, “I will send thee a man, and thou shalt anoint him to be captain over my people Israel, that he may save my people out of the hands of the Philistines” (ch. 9. 16). As if the only business of a king had been to lead out their armies and fight in their defence; and, accordingly, at his inauguration, pouring a vial of oil upon him, declares to Saul that “the Lord had anointed him to be captain over his inheritance” (ch. 10. 1). And therefore those who, after Saul being solemnly chosen and saluted king by the tribes at Mispah, were unwilling to have him their king, make no other objection but this, “How shall this man save us?” (ch. 10. 27), as if they should have said: “This man is unfit to be our king, not having skill and conduct enough in war to be able to defend us.” And when God resolved to transfer the government to David, it is in these words: “But now thy kingdom shall not continue: the Lord hath sought Him a man after His own heart, and the Lord hath commanded him to be captain over His people” (ch. 13. 14.). As if the whole kingly authority were nothing else but to be their general; and therefore the tribes who had stuck to Saul′s family, and opposed David′s reign, when they came to Hebron with terms of submission to him, they tell him, amongst other arguments, they had to submit to him as to their king, that he was, in effect, their king in Saul′s time, and therefore they had no reason but to receive him as their king now. “Also,” say they, “in time past, when Saul was king over us, thou wast he that leddest out and broughtest in Israel, and the Lord said unto thee, Thou shalt feed my people Israel, and thou shalt be a captain over Israel.”
110. Thus, whether a family, by degrees, grew up into a commonwealth, and the fatherly authority being continued on to the elder son, every one in his turn growing up under it tacitly submitted to it, and the easiness and equality of it not offending any one, every one acquiesced till time seemed to have confirmed it and settled a right of succession by prescription; or whether several families, or the descendants of several families, whom chance, neighbourhood, or business brought together, united into society; the need of a general whose conduct might defend them against their enemies in war, and the great confidence the innocence and sincerity of that poor but virtuous age, such as are almost all those which begin governments that ever come to last in the world, gave men one of another, made the first beginners of commonwealths generally put the rule into one man′s hand, without any other express limitation or restraint but what the nature of the thing and the end of government required. It was given them for the public good and safety, and to those ends, in the infancies of commonwealths, they commonly used it; and unless they had done so, young societies could not have subsisted. Without such nursing fathers, without this care of the governors, all governments would have sunk under the weakness and infirmities of their infancy, the prince and the people had soon perished together.
111. But the golden age (though before vain ambition, and amor sceleratus habendi, evil concupiscence had corrupted men′s minds into a mistake of true power and honour) had more virtue, and consequently better governors, as well as less vicious subjects; and there was then no stretching prerogative on the one side to oppress the people, nor, consequently, on the other, any dispute about privilege, to lessen or restrain the power of the magistrate; and so no contest betwixt rulers and people about governors or government.* Yet, when ambition and luxury, in future ages, would retain and increase the power, without doing the business for which it was given, and aided by flattery, taught princes to have distinct and separate interests from their people, men found it necessary to examine more carefully the original and rights of government, and to find out ways to restrain the exorbitances and prevent the abuses of that power, which they having entrusted in another′s hands, only for their own good, they found was made use of to hurt them.
112. Thus we may see how probable it is that people that were naturally free, and, by their own consent, either submitted to the government of their father, or united together, out of different families, to make a government, should generally put the rule into one man′s hands, and choose to be under the conduct of a single person, without so much, as by express conditions, limiting or regulating his power, which they thought safe enough in his honesty and prudence; though they never dreamed of monarchy being jure Divino, which we never heard of among mankind till it was revealed to us by the divinity of this last age, nor ever allowed paternal power to have a right to dominion or to be the foundation of all government. And thus much may suffice to show that, as far as we have any light from history, we have reason to conclude that all peaceful beginnings of government have been laid in the consent of the people. I say “peaceful,” because I shall have occasion, in another place, to speak of conquest, which some esteem a way of beginning of governments.
The other objection, I find, urged against the beginning of polities, in the way I have mentioned, is this, viz.:
113. “That all men being born under government, some or other, it is impossible any of them should ever be free and at liberty to unite together and begin a new one, or ever be able to erect a lawful government.” If this argument be good, I ask, How came so many lawful monarchies into the world? For if anybody, upon this supposition, can show me any one man, in any age of the world, free to begin a lawful monarchy, I will be bound to show him ten other free men at liberty, at the same time, to unite and begin a new government under a regal or any other form. It being demonstration that if any one born under the dominion of another may be so free as to have a right to command others in a new and distinct empire, every one that is born under the dominion of another may be so free too, and may become a ruler or subject of a distinct separate government. And so, by this their own principle, either all men, however born, are free, or else there is but one lawful prince, one lawful government in the world; and then they have nothing to do but barely to show us which that is, which, when they have done, I doubt not but all mankind will easily agree to pay obedience to him.
114. Though it be a sufficient answer to their objection to show that it involves them in the same difficulties that it doth those they use it against, yet I shall endeavour to discover the weakness of this argument a little farther.
“All men,” say they, “are born under government, and therefore they cannot be at liberty to begin a new one. Every one is born a subject to his father or his prince, and is therefore under the perpetual tie of subjection and allegiance.” It is plain mankind never owned nor considered any such natural subjection that they were born in, to one or to the other, that tied them, without their own consents, to a subjection to them and their heirs.
115. For there are no examples so frequent in history, both sacred and profane, as those of men withdrawing themselves and their obedience from the jurisdiction they were born under, and the family or community they were bred up in, and setting up new governments in other places, from whence sprang all that number of petty commonwealths in the beginning of ages, and which always multiplied as long as there was room enough, till the stronger or more fortunate swallowed the weaker; and those great ones, again breaking to pieces, dissolved into lesser dominions; all which are so many testimonies against paternal sovereignty, and plainly prove that it was not the natural right of the father descending to his heirs that made governments in the beginning; since it was impossible, upon that ground, there should have been so many little kingdoms but only one universal monarchy if men had not been at liberty to separate themselves from their families and their government, be it what it will that was set up in it, and go and make distinct commonwealths and other governments as they thought fit.
116. This has been the practice of the world from its first beginning to this day; nor is it now any more hindrance to the freedom of mankind, that they are born under constituted and ancient polities that have established laws and set forms of government, than if they were born in the woods amongst the unconfined inhabitants that run loose in them. For those who would persuade us that by being born under any government we are naturally subjects to it, and have no more any title or pretence to the freedom of the state of Nature, have no other reason (bating that of paternal power, which we have already answered) to produce for it, but only because our fathers or progenitors passed away their natural liberty, and thereby bound up themselves and their posterity to a perpetual subjection to the government which they themselves submitted to. It is true that whatever engagements or promises any one made for himself, he is under the obligation of them, but cannot by any compact whatsoever bind his children or posterity. For his son, when a man, being altogether as free as the father, any act of the father can no more give away the liberty of the son than it can of anybody else. He may, indeed, annex such conditions to the land he enjoyed, as a subject of any commonwealth, as may oblige his son to be of that community, if he will enjoy those possessions which were his father′s, because that estate being his father′s property, he may dispose or settle it as he pleases.
117. And this has generally given the occasion to the mistake in this matter; because commonwealths not permitting any part of their dominions to be dismembered, nor to be enjoyed by any but those of their community, the son cannot ordinarily enjoy the possessions of his father but under the same terms his father did, by becoming a member of the society, whereby he puts himself presently under the government he finds there established, as much as any other subject of that commonweal. And thus the consent of free men, born under government, which only makes them members of it, being given separately in their turns, as each comes to be of age, and not in a multitude together, people take no notice of it, and thinking it not done at all, or not necessary, conclude they are naturally subjects as they are men.
118. But it is plain governments themselves understand it otherwise; they claim no power over the son because of that they had over the father; nor look on children as being their subjects, by their fathers being so. If a subject of England have a child by an Englishwoman in France, whose subject is he? Not the King of England′s; for he must have leave to be admitted to the privileges of it. Nor the King of France′s, for how then has his father a liberty to bring him away, and breed him as he pleases; and whoever was judged as a traitor or deserter, if he left, or warred against a country, for being barely born in it of parents that were aliens there? It is plain, then, by the practice of governments themselves, as well as by the law of right reason, that a child is born a subject of no country nor government. He is under his father′s tuition and authority till he come to age of discretion, and then he is a free man, at liberty what government he will put himself under, what body politic he will unite himself to. For if an Englishman′s son born in France be at liberty, and may do so, it is evident there is no tie upon him by his father being a subject of that kingdom, nor is he bound up by any compact of his ancestors; and why then hath not his son, by the same reason, the same liberty, though he be born anywhere else? Since the power that a father hath naturally over his children is the same wherever they be born, and the ties of natural obligations are not bounded by the positive limits of kingdoms and commonwealths.
119. Every man being, as has been showed, naturally free, and nothing being able to put him into subjection to any earthly power, but only his own consent, it is to be considered what shall be understood to be a sufficient declaration of a man′s consent to make him subject to the laws of any government. There is a common distinction of an express and a tacit consent, which will concern our present case. Nobody doubts but an express consent of any man, entering into any society, makes him a perfect member of that society, a subject of that government. The difficulty is, what ought to be looked upon as a tacit consent, and how far it binds- i.e., how far any one shall be looked on to have consented, and thereby submitted to any government, where he has made no expressions of it at all. And to this I say, that every man that hath any possession or enjoyment of any part of the dominions of any government doth hereby give his tacit consent, and is as far forth obliged to obedience to the laws of that government, during such enjoyment, as any one under it, whether this his possession be of land to him and his heirs for ever, or a lodging only for a week; or whether it be barely travelling freely on the highway; and, in effect, it reaches as far as the very being of any one within the territories of that government.
120. To understand this the better, it is fit to consider that every man when he at first incorporates himself into any commonwealth, he, by his uniting himself thereunto, annexes also, and submits to the community those possessions which he has, or shall acquire, that do not already belong to any other government. For it would be a direct contradiction for any one to enter into society with others for the securing and regulating of property, and yet to suppose his land, whose property is to be regulated by the laws of the society, should be exempt from the jurisdiction of that government to which he himself, and the property of the land, is a subject. By the same act, therefore, whereby any one unites his person, which was before free, to any commonwealth, by the same he unites his possessions, which were before free, to it also; and they become, both of them, person and possession, subject to the government and dominion of that commonwealth as long as it hath a being. Whoever therefore, from thenceforth, by inheritance, purchases permission, or otherwise enjoys any part of the land so annexed to, and under the government of that commonweal, must take it with the condition it is under- that is, of submitting to the government of the commonwealth, under whose jurisdiction it is, as far forth as any subject of it.
121. But since the government has a direct jurisdiction only over the land and reaches the possessor of it (before he has actually incorporated himself in the society) only as he dwells upon and enjoys that, the obligation any one is under by virtue of such enjoyment to submit to the government begins and ends with the enjoyment; so that whenever the owner, who has given nothing but such a tacit consent to the government will, by donation, sale or otherwise, quit the said possession, he is at liberty to go and incorporate himself into any other commonwealth, or agree with others to begin a new one in vacuis locis, in any part of the world they can find free and unpossessed; whereas he that has once, by actual agreement and any express declaration, given his consent to be of any commonweal, is perpetually and indispensably obliged to be, and remain unalterably a subject to it, and can never be again in the liberty of the state of Nature, unless by any calamity the government he was under comes to be dissolved.
122. But submitting to the laws of any country, living quietly and enjoying privileges and protection under them, makes not a man a member of that society; it is only a local protection and homage due to and from all those who, not being in a state of war, come within the territories belonging to any government, to all parts whereof the force of its law extends. But this no more makes a man a member of that society, a perpetual subject of that commonwealth, than it would make a man a subject to another in whose family he found it convenient to abide for some time, though, whilst he continued in it, he were obliged to comply with the laws and submit to the government he found there. And thus we see that foreigners, by living all their lives under another government, and enjoying the privileges and protection of it, though they are bound, even in conscience, to submit to its administration as far forth as any denizen, yet do not thereby come to be subjects or members of that commonwealth. Nothing can make any man so but his actually entering into it by positive engagement and express promise and compact. This is that which, I think, concerning the beginning of political societies, and that consent which makes any one a member of any commonwealth.
123. IF man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name- property.
124. The great and chief end, therefore, of men 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.
Firstly, 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 biased 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.
125. 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, make them too remiss in other men′s.
126. 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.
127. Thus mankind, notwithstanding all the privileges of the state of Nature, being but in an ill condition while they remain in it are quickly driven into society. Hence it comes to pass, that we seldom find any number of men live any time together in this state. The inconveniencies that they are therein exposed to by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others, make them take sanctuary under the established laws of government, and therein seek the preservation of their property. It is this that makes them so willingly give up every one his single power of punishing to be exercised by such alone as shall be appointed to it amongst them, and by such rules as the community, or those authorised by them to that purpose, shall agree on. And in this we have the original right and rise of both the legislative and executive power as well as of the governments and societies themselves.
128. 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 viciousness of degenerate men, there would be no need of any other, no necessity that men should separate from this great and natural community, and associate into lesser combinations. 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 political society, and incorporates into any commonwealth separate from the rest of mankind.
129. The first power- viz., of doing whatsoever he thought fit 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.
130. 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.
131. 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 commonwealth, 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.
132. THE majority having, as has been showed, upon men′s first uniting into society, the whole power of the community naturally in them, may employ all that power in making laws for the community from time to time, and executing those laws by officers of their own appointing, and then the form of the government is a perfect democracy; or else may put the power of making laws into the hands of a few select men, and their heirs or successors, and then it is an oligarchy; or else into the hands of one man, and then it is a monarchy; if to him and his heirs, it is a hereditary monarchy; if to him only for life, but upon his death the power only of nominating a successor, to return to them, an elective monarchy. And so accordingly of these make compounded and mixed forms of government, as they think good. And if the legislative power be at first given by the majority to one or more persons only for their lives, or any limited time, and then the supreme power to revert to them again, when it is so reverted the community may dispose of it again anew into what hands they please, and so constitute a new form of government; for the form of government depending upon the placing the supreme power, which is the legislative, it being impossible to conceive that an inferior power should prescribe to a superior, or any but the supreme make laws, according as the power of making laws is placed, such is the form of the commonwealth.
133. By “commonwealth” I must be understood all along to mean not a democracy, or any form of government, but any independent community which the Latins signified by the word civitas, to which the word which best answers in our language is “commonwealth,” and most properly expresses such a society of men which “community” does not (for there may be subordinate communities in a government), and “city” much less. And therefore, to avoid ambiguity, I crave leave to use the word “commonwealth” in that sense, in which sense I find the word used by King James himself, which I think to be its genuine signification, which, if anybody dislike, I consent with him to change it for a better.
134. THE great end of men′s entering into society being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society, the first and fundamental positive law of all commonwealths is the establishing of the legislative power, as the first and fundamental natural law which is to govern even the legislative. Itself is the preservation of the society and (as far as will consist with the public good) of every person in it. This legislative is not only the supreme power of the commonwealth, but sacred and unalterable in the hands where the community have once placed it. Nor can any edict of anybody else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law which has not its sanction from that legislative which the public has chosen and appointed; for without this the law could not have that which is absolutely necessary to its being a law, the consent of the society, over whom nobody can have a power to make laws*but by their own consent and by authority received from them; and therefore all the obedience, which by the most solemn ties any one can be obliged to pay, ultimately terminates in this supreme power, and is directed by those laws which it enacts. Nor can any oaths to any foreign power whatsoever, or any domestic subordinate power, discharge any member of the society from his obedience to the legislative, acting pursuant to their trust, nor oblige him to any obedience contrary to the laws so enacted or farther than they do allow, it being ridiculous to imagine one can be tied ultimately to obey any power in the society which is not the supreme.
135. Though the legislative, whether placed in one or more, whether it be always in being or only by intervals, though it be the supreme power in every commonwealth, 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 it up to the community. For nobody can transfer to another more power than he has in himself, and nobody 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 commonwealth, 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 enforce 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.
136. Secondly, the legislative or supreme authority cannot assume to itself 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 authorised judges. For the law of Nature being unwritten, and so nowhere 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 aught, 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 punish delinquents. To avoid these inconveniencies 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 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.
137. Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of Nature for, and tie themselves up under, were it not to preserve their lives, liberties, and fortunes, and by stated rules of right and property to secure their peace and quiet. It cannot be supposed that they should intend, had they a power so to do, to give 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 that is exposed to the arbitrary power of one man who has the command of a hundred thousand than he that is exposed to the arbitrary power of a hundred thousand single men, nobody being secure, that his will who has such a command is better than that of other men, though his force be a hundred thousand times stronger. And, therefore, whatever form the commonwealth 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 due bounds, and not be tempted by the power they have in their hands to employ it to purposes, and by such measures as they would not have known, and own not willingly.
138. Thirdly, the supreme power cannot take from any man any part of his property without his own consent. For the preservation of property being the end of government, and that for which men 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 theirs, that nobody hath a right to take them, or any part of them, 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, though there be good and equitable laws to set the bounds of it between him and his fellow-subjects, if he who commands those subjects have power to take from any private man what part he pleases of his property, and use and dispose of it as he thinks good.
139. But government, into whosesoever hands it is put, being as I have before shown, entrusted with this condition, and for this end, that men might have and secure their properties, the prince or senate, however it may have power to make laws for the regulating of property between the subjects one amongst another, yet can never have a power to take to themselves the whole, or any part of the subjects′ property, without their own consent; for this would be in effect to leave them no property at all. And to let us see that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason and confined to those ends which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline. For the preservation of the army, and in it of the whole commonwealth, requires an absolute obedience to the command of every 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 sergeant 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 not obeying the most desperate orders, cannot 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 anything, and hang for the least disobedience. Because such a blind obedience is necessary to that end for which the commander has his power- viz., the preservation of the rest, but the disposing of his goods has nothing to do with it.
140. 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?
141. Fourthly. The legislative cannot transfer the power of making laws to any other hands, for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, “We will submit, and be governed by laws made by such men, and in such forms,” nobody else can say other men shall make laws for them; nor can they be bound by any laws but such as are enacted by those whom they have chosen and authorised to make laws for them.
142. These are the bounds which the trust that is put in them by the society and the law of God and Nature have set to the legislative power of every commonwealth, 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 countryman 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: Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.
of the Commonwealth
143. THE legislative power is that which has a right to direct how the force of the commonwealth shall be employed for preserving the community and the members of it. Because those laws which are constantly to be executed, and whose force is always to continue, may be made in a little time, therefore there is no need that the legislative should be always in being, not having always business to do. And because it may be too great temptation to human frailty, apt to grasp at power, for the same persons who have the power of making laws to have also in their hands the power to execute them, whereby they may exempt themselves from obedience to the laws they make, and suit the law, both in its making and execution, to their own private advantage, and thereby come to have a distinct interest from the rest of the community, contrary to the end of society and government. Therefore in well-ordered commonwealths, where the good of the whole is so considered as it ought, the legislative power is put into the hands of divers persons who, duly assembled, have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the laws they have made; which is a new and near tie upon them to take care that they make them for the public good.
144. But because the laws that are at once, and in a short time made, have a constant and lasting force, and need a perpetual execution, or an attendance thereunto, therefore it is necessary there should be a power always in being which should see to the execution of the laws that are made, and remain in force. And thus the legislative and executive power come often to be separated.
145. There is another power in every commonwealth which one may call natural, because it is that which answers to the power every man naturally had before he entered into society. For though in a commonwealth the members of it are distinct persons, still, in reference to one another, and, as such, are governed by the laws of the society, yet, in reference to the rest of mankind, they make one body, which is, as every member of it before was, still in the state of Nature with the rest of mankind, so that the controversies that happen between any man of the society with those that are out of it are managed by the public, and an injury done to a member of their body engages the whole in the reparation of it. So that under this consideration the whole community is one body in the state of Nature in respect of all other states or persons out of its community.
146. This, therefore, contains the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth, and may be called federative if any one pleases. So the thing be understood, I am indifferent as to the name.
147. These two powers, executive and federative, though they be really distinct in themselves, yet one comprehending the execution of the municipal laws of the society within itself upon all that are parts of it, the other the management of the security and interest of the public without with all those that it may receive benefit or damage from, yet they are always almost united. And though this federative power in the well or ill management of it be of great moment to the commonwealth, yet it is much less capable to be directed by antecedent, standing, positive laws than the executive, and so must necessarily be left to the prudence and wisdom of those whose hands it is in, to be managed for the public good. For the laws that concern subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to foreigners depending much upon their actions, and the variation of designs and interests, must be left in great part to the prudence of those who have this power committed to them, to be managed by the best of their skill for the advantage of the commonwealth.
148. Though, as I said, the executive and federative power of every community be really distinct in themselves, yet they are hardly to be separated and placed at the same time in the hands of distinct persons. For both of them requiring the force of the society for their exercise, it is almost impracticable to place the force of the commonwealth in distinct and not subordinate hands, or that the executive and federative power should be placed in persons that might act separately, whereby the force of the public would be under different commands, which would be apt some time or other to cause disorder and ruin.
149. THOUGH in a constituted commonwealth standing upon its own basis and acting according to its own nature- that is, acting for the preservation of the community, there can be but one supreme power, which is the legislative, to which all the rest are and must be subordinate, yet the legislative being only a fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them. For all power given with trust for the attaining an end being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolve into the hands of those that gave it, who may place it anew where they shall think best for their safety and security. And thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody, even of their legislators, whenever they shall be so foolish or so wicked as to lay and carry on designs against the liberties and properties of the subject. For no man or society of men having a power to deliver up their preservation, or consequently the means of it, to the absolute will and arbitrary dominion of another, whenever any one shall go about to bring them into such a slavish condition, they will always have a right to preserve what they have not a power to part with, and to rid themselves of those who invade this fundamental, sacred, and unalterable law of self-preservation for which they entered into society. And thus the community may be said in this respect to be always the supreme power, but not as considered under any form of government, because this power of the people can never take place till the government be dissolved.
150. In all cases whilst the government subsists, the legislative is the supreme power. For what can give laws to another must needs be superior to him, and since the legislative is no otherwise legislative of the society but by the right it has to make laws for all the parts, and every member of the society prescribing rules to their actions, they are transgressed, the legislative must needs be the supreme, and all other powers in any members or parts of the society derived from and subordinate to it.
151. In some commonwealths where the legislative is not always in being, and the executive is vested in a single person who has also a share in the legislative, there that single person, in a very tolerable sense, may also be called supreme; not that he has in himself all the supreme power, which is that of law-making, but because he has in him the supreme execution from whom all inferior magistrates derive all their several subordinate powers, or, at least, the greatest part of them; having also no legislative superior to him, there being no law to be made without his consent, which cannot be expected should ever subject him to the other part of the legislative, he is properly enough in this sense supreme. But yet it is to be observed that though oaths of allegiance and fealty are taken to him, it is not to him as supreme legislator, but as supreme executor of the law made by a joint power of him with others, allegiance being nothing but an obedience according to law, which, when he violates, he has no right to obedience, nor can claim it otherwise than as the public person vested with the power of the law, and so is to be considered as the image, phantom, or representative of the commonwealth, acted by the will of the society declared in its laws, and thus he has no will, no power, but that of the law. But when he quits this representation, this public will, and acts by his own private will, he degrades himself, and is but a single private person without power and without will; the members owing no obedience but to the public will of the society.
152. The executive power placed anywhere but in a person that has also a share in the legislative is visibly subordinate and accountable to it, and may be at pleasure changed and displaced; so that it is not the supreme executive power that is exempt from subordination, but the supreme executive power vested in one, who having a share in the legislative, has no distinct superior legislative to be subordinate and accountable to, farther than he himself shall join and consent, so that he is no more subordinate than he himself shall think fit, which one may certainly conclude will be but very little. Of other ministerial and subordinate powers in a commonwealth we need not speak, they being so multiplied with infinite variety in the different customs and constitutions of distinct commonwealths, that it is impossible to give a particular account of them all. Only thus much which is necessary to our present purpose we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the commonwealth.
153. It is not necessary- no, nor so much as convenient- that the legislative should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made. When the legislative hath put the execution of the laws they make into other hands, they have a power still to resume it out of those hands when they find cause, and to punish for any mal-administration against the laws. The same holds also in regard of the federative power, that and the executive being both ministerial and subordinate to the legislative, which, as has been shown, in a constituted commonwealth is the supreme, the legislative also in this case being supposed to consist of several persons; for if it be a single person it cannot but be always in being, and so will, as supreme, naturally have the supreme executive power, together with the legislative, may assemble and exercise their legislative at the times that either their original constitution or their own adjournment appoints, or when they please, if neither of these hath appointed any time, or there be no other way prescribed to convoke them. For the supreme power being placed in them by the people, it is always in them, and they may exercise it when they please, unless by their original constitution they are limited to certain seasons, or by an act of their supreme power they have adjourned to a certain time, and when that time comes they have a right to assemble and act again.
154. If the legislative, or any part of it, be of representatives, chosen for that time by the people, which afterwards return into the ordinary state of subjects, and have no share in the legislative but upon a new choice, this power of choosing must also be exercised by the people, either at certain appointed seasons, or else when they are summoned to it; and, in this latter case, the power of convoking the legislative is ordinarily placed in the executive, and has one of these two limitations in respect of time:- that either the original constitution requires their assembling and acting at certain intervals; and then the executive power does nothing but ministerially issue directions for their electing and assembling according to due forms; or else it is left to his prudence to call them by new elections when the occasions or exigencies of the public require the amendment of old or making of new laws, or the redress or prevention of any inconveniencies that lie on or threaten the people.
155. It may be demanded here, what if the executive power, being possessed of the force of the commonwealth, shall make use of that force to hinder the meeting and acting of the legislative, when the original constitution or the public exigencies require it? I say, using force upon the people, without authority, and contrary to the trust put in him that does so, is a state of war with the people, who have a right to reinstate their legislative in the exercise of their power. For having erected a legislative with an intent they should exercise the power of making laws, either at certain set times, or when there is need of it, when they are hindered by any force from what is so necessary to the society, and wherein the safety and preservation of the people consists, the people have a right to remove it by force. In all states and conditions the true remedy of force without authority is to oppose force to it. The use of force without authority always puts him that uses it into a state of war as the aggressor, and renders him liable to be treated accordingly.
156. The power of assembling and dismissing the legislative, placed in the executive, gives not the executive a superiority over it, but is a fiduciary trust placed in him for the safety of the people in a case where the uncertainty and variableness of human affairs could not bear a steady fixed rule. For it not being possible that the first framers of the government should by any foresight be so much masters of future events as to be able to prefix so just periods of return and duration to the assemblies of the legislative, in all times to come, that might exactly answer all the exigencies of the commonwealth, the best remedy could be found for this defect was to trust this to the prudence of one who was always to be present, and whose business it was to watch over the public good. Constant, frequent meetings of the legislative, and long continuations of their assemblies, without necessary occasion, could not but be burdensome to the people, and must necessarily in time produce more dangerous inconveniencies, and yet the quick turn of affairs might be sometimes such as to need their present help; any delay of their convening might endanger the public; and sometimes, too, their business might be so great that the limited time of their sitting might be too short for their work, and rob the public of that benefit which could be had only from their mature deliberation. What, then, could be done in this case to prevent the community from being exposed some time or other to imminent hazard on one side or the other, by fixed intervals and periods set to the meeting and acting of the legislative, but to entrust it to the prudence of some who, being present and acquainted with the state of public affairs, might make use of this prerogative for the public good? And where else could this be so well placed as in his hands who was entrusted with the execution of the laws for the same end? Thus, supposing the regulation of times for the assembling and sitting of the legislative not settled by the original constitution, it naturally fell into the hands of the executive; not as an arbitrary power depending on his good pleasure, but with this trust always to have it exercised only for the public weal, as the occurrences of times and change of affairs might require. Whether settled periods of their convening, or a liberty left to the prince for convoking the legislative, or perhaps a mixture of both, hath the least inconvenience attending it, it is not my business here to inquire, but only to show that, though the executive power may have the prerogative of convoking and dissolving such conventions of the legislative, yet it is not thereby superior to it.
157. Things of this world are in so constant a flux that nothing remains long in the same state. Thus people, riches, trade, power, change their stations; flourishing mighty cities come to ruin, and prove in time neglected desolate corners, whilst other unfrequented places grow into populous countries filled with wealth and inhabitants. But things not always changing equally, and private interest often keeping up customs and privileges when the reasons of them are ceased, it often comes to pass that in governments where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established upon. To what gross absurdities the following of custom when reason has left it may lead, we may be satisfied when we see the bare name of a town, of which there remains not so much as the ruins, where scarce so much housing as a sheepcote, or more inhabitants than a shepherd is to be found, send as many representatives to the grand assembly of law-makers as a whole county numerous in people and powerful in riches. This strangers stand amazed at, and every one must confess needs a remedy; though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it. And, therefore, the people when the legislative is once constituted, having in such a government as we have been speaking of no power to act as long as the government stands, this inconvenience is thought incapable of a remedy.
158. Salus populi suprema lex is certainly so just and fundamental a rule, that he who sincerely follows it cannot dangerously err. If, therefore, the executive who has the power of convoking the legislative, observing rather the true proportion than fashion of representation, regulates not by old custom, but true reason, the number of members in all places, that have a right to be distinctly represented, which no part of the people, however incorporated, can pretend to, but in proportion to the assistance which it affords to the public, it cannot be judged to have set up a new legislative, but to have restored the old and true one, and to have rectified the disorders which succession of time had insensibly as well as inevitably introduced; for it being the interest as well as intention of the people to have a fair and equal representative, whoever brings it nearest to that is an undoubted friend to and establisher of the government, and cannot miss the consent and approbation of the community; prerogative being nothing but a power in the hands of the prince to provide for the public good in such cases which, depending upon unforeseen and uncertain occurrences, certain and unalterable laws could not safely direct. Whatsoever shall be done manifestly for the good of the people, and establishing the government upon its true foundations is, and always will be, just prerogative. The power of erecting new corporations, and therewith new representatives, carries with it a supposition that in time the measures of representation might vary, and those have a just right to be represented which before had none; and by the same reason, those cease to have a right, and be too inconsiderable for such a privilege, which before had it. It is not a change from the present state which, perhaps, corruption or decay has introduced, that makes an inroad upon the government, but the tendency of it to injure or oppress the people, and to set up one part or party with a distinction from and an unequal subjection of the rest. Whatsoever cannot but be acknowledged to be of advantage to the society and people in general, upon just and lasting measures, will always, when done, justify itself; and whenever the people shall choose their representatives upon just and undeniably equal measures, suitable to the original frame of the government, it cannot be doubted to be the will and act of the society, whoever permitted or proposed to them so to do.
159. WHERE the legislative and executive power are in distinct hands, as they are in all moderated monarchies and well-framed governments, there the good of the society requires that several things should be left to the discretion of him that has the executive power. For the legislators not being able to foresee and provide by laws for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of Nature a right to make use of it for the good of the society, in many cases where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it; nay, many things there are which the law can by no means provide for, and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require; nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of Nature and government- viz., that as much as may be all the members of the society are to be preserved. For since many accidents may happen wherein a strict and rigid observation of the laws may do harm, as not to pull down an innocent man′s house to stop the fire when the next to it is burning; and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; it is fit the ruler should have a power in many cases to mitigate the severity of the law, and pardon some offenders, since the end of government being the preservation of all as much as may be, even the guilty are to be spared where it can prove no prejudice to the innocent.
160. This power to act according to discretion for the public good, without the prescription of the law and sometimes even against it, is that which is called prerogative; for since in some governments the law-making power is not always in being and is usually too numerous, and so too slow for the dispatch requisite to execution, and because, also, it is impossible to foresee and so by laws to provide for all accidents and necessities that may concern the public, or make such laws as will do no harm, if they are executed with an inflexible rigour on all occasions and upon all persons that may come in their way, therefore there is a latitude left to the executive power to do many things of choice which the laws do not prescribe.
161. This power, whilst employed for the benefit of the community and suitably to the trust and ends of the government, is undoubted prerogative, and never is questioned. For the people are very seldom or never scrupulous or nice in the point or questioning of prerogative whilst it is in any tolerable degree employed for the use it was meant- that is, the good of the people, and not manifestly against it. But if there comes to be a question between the executive power and the people about a thing claimed as a prerogative, the tendency of the exercise of such prerogative, to the good or hurt of the people, will easily decide that question.
162. It is easy to conceive that in the infancy of governments, when commonwealths differed little from families in number of people, they differed from them too but little in number of laws; and the governors being as the fathers of them, watching over them for their good, the government was almost all prerogative. A few established laws served the turn, and the discretion and care of the ruler suppled the rest. But when mistake or flattery prevailed with weak princes, to make use of this power for private ends of their own and not for the public good, the people were fain, by express laws, to get prerogative determined in those points wherein they found disadvantage from it, and declared limitations of prerogative in those cases which they and their ancestors had left in the utmost latitude to the wisdom of those princes who made no other but a right use of it- that is, for the good of their people.
163. And therefore they have a very wrong notion of government who say that the people have encroached upon the prerogative when they have got any part of it to be defined by positive laws. For in so doing they have not pulled from the prince anything that of right belonged to him, but only declared that that power which they indefinitely left in his or his ancestors′ hands, to be exercised for their good, was not a thing they intended him, when he used it otherwise. For the end of government being the good of the community, whatsoever alterations are made in it tending to that end cannot be an encroachment upon anybody; since nobody in government can have a right tending to any other end; and those only are encroachments which prejudice or hinder the public good. Those who say otherwise speak as if the prince had a distinct and separate interest from the good of the community, and was not made for it; the root and source from which spring almost all those evils and disorders which happen in kingly governments. And indeed, if that be so, the people under his government are not a society of rational creatures, entered into a community for their mutual good, such as have set rulers over themselves, to guard and promote that good; but are to be looked on as a herd of inferior creatures under the dominion of a master, who keeps them and works them for his own pleasure or profit. If men were so void of reason and brutish as to enter into society upon such terms, prerogative might indeed be, what some men would have it, an arbitrary power to do things hurtful to the people.
164. But since a rational creature cannot be supposed, when free, to put himself into subjection to another for his own harm (though where he finds a good and a wise ruler he may not, perhaps, think it either necessary or useful to set precise bounds to his power in all things), prerogative can be nothing but the people′s permitting their rulers to do several things of their own free choice where the law was silent, and sometimes too against the direct letter of the law, for the public good and their acquiescing in it when so done. For as a good prince, who is mindful of the trust put into his hands and careful of the good of his people, cannot have too much prerogative- that is, power to do good, so a weak and ill prince, who would claim that power his predecessors exercised, without the direction of the law, as a prerogative belonging to him by right of his office, which he may exercise at his pleasure to make or promote an interest distinct from that of the public, gives the people an occasion to claim their right and limit that power, which, whilst it was exercised for their good, they were content should be tacitly allowed.
165. And therefore he that will look into the history of England will find that prerogative was always largest in the hands of our wisest and best princes, because the people observing the whole tendency of their actions to be the public good, or if any human frailty or mistake (for princes are but men, made as others) appeared in some small declinations from that end, yet it was visible the main of their conduct tended to nothing but the care of the public. The people, therefore, finding reason to be satisfied with these princes, whenever they acted without, or contrary to the letter of the law, acquiesced in what they did, and without the least complaint, let them enlarge their prerogative as they pleased, judging rightly that they did nothing herein to the prejudice of their laws, since they acted conformably to the foundation and end of all laws- the public good.
166. Such God-like princes, indeed, had some title to arbitrary power by that argument that would prove absolute monarchy the best government, as that which God Himself governs the universe by, because such kings partake of His wisdom and goodness. Upon this is founded that saying, “That the reigns of good princes have been always most dangerous to the liberties of their people.” For when their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent and make them the standard of their prerogative- as if what had been done only for the good of the people was a right in them to do for the harm of the people, if they so pleased- it has often occasioned contest, and sometimes public disorders, before the people could recover their original right and get that to be declared not to be prerogative which truly was never so; since it is impossible anybody in the society should ever have a right to do the people harm, though it be very possible and reasonable that the people should not go about to set any bounds to the prerogative of those kings or rulers who themselves transgressed not the bounds of the public good. For “prerogative is nothing but the power of doing public good without a rule.”
167. The power of calling parliaments in England, as to precise time, place, and duration, is certainly a prerogative of the king, but still with this trust, that it shall be made use of for the good of the nation as the exigencies of the times and variety of occasion shall require. For it being impossible to foresee which should always be the fittest place for them to assemble in, and what the best season, the choice of these was left with the executive power, as might be best subservient to the public good and best suit the ends of parliament.
168. The old question will be asked in this matter of prerogative, “But who shall be judge when this power is made a right use of?” I answer: Between an executive power in being, with such a prerogative, and a legislative that depends upon his will for their convening, there can be no judge on earth. As there can be none between the legislative and the people, should either the executive or the legislative, when they have got the power in their hands, design, or go about to enslave or destroy them, the people have no other remedy in this, as in all other cases where they have no judge on earth, but to appeal to Heaven; for the rulers in such attempts, exercising a power the people never put into their hands, who can never be supposed to consent that anybody should rule over them for their harm, do that which they have not a right to do. And where the body of the people, or any single man, are deprived of their right, or are under the exercise of a power without right, having no appeal on earth they have a liberty to appeal to Heaven whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have, by the constitution of that society, any superior power to determine and give effective sentence in the case, yet they have reserved that ultimate determination to themselves which belongs to all mankind, where there lies no appeal on earth, by a law antecedent and paramount to all positive laws of men, whether they have just cause to make their appeal to Heaven. And this judgement they cannot part with, it being out of a man′s power so to submit himself to another as to give him a liberty to destroy him; God and Nature never allowing a man so to abandon himself as to neglect his own preservation. And since he cannot take away his own life, neither can he give another power to take it. Nor let any one think this lays a perpetual foundation for disorder; for this operates not till the inconvenience is so great that the majority feel it, and are weary of it, and find a necessity to have it amended. And this the executive power, or wise princes, never need come in the danger of; and it is the thing of all others they have most need to avoid, as, of all others, the most perilous.
169. THOUGH I have had occasion to speak of these separately before, yet the great mistakes of late about government having, as I suppose, arisen from confounding these distinct powers one with another, it may not perhaps be amiss to consider them here together.
170. First, then, paternal or parental power is nothing but that which parents have over their children to govern them, for the children′s good, till they come to the use of reason, or a state of knowledge, wherein they may be supposed capable to understand that rule, whether it be the law of Nature or the municipal law of their country, they are to govern themselves by- capable, I say, to know it, as well as several others, who live as free men under that law. The affection and tenderness God hath planted in the breasts of parents towards their children makes it evident that this is not intended to be a severe arbitrary government, but only for the help, instruction, and preservation of their offspring. But happen as it will, there is, as I have proved, no reason why it should be thought to extend to life and death, at any time, over their children, more than over anybody else, or keep the child in subjection to the will of his parents when grown to a man and the perfect use of reason, any farther than as having received life and education from his parents obliges him to respect, honour, gratitude, assistance, and support, all his life, to both father and mother. And thus, it is true, the paternal is a natural government, but not at all extending itself to the ends and jurisdictions of that which is political. The power of the father doth not reach at all to the property of the child, which is only in his own disposing.
171. Secondly, political power is that power which every man having in the state of Nature has given up into the hands of the society, and therein to the governors whom the society hath set over itself, with this express or tacit trust, that it shall be employed for their good and the preservation of their property. Now this power, which every man has in the state of Nature, and which he parts with to the society in all such cases where the society can secure him, is to use such means for the preserving of his own property as he thinks good and Nature allows him; and to punish the breach of the law of Nature in others so as (according to the best of his reason) may most conduce to the preservation of himself and the rest of mankind; so that the end and measure of this power, when in every man′s hands, in the state of Nature, being the preservation of all of his society- that is, all mankind in general- it can have no other end or measure, when in the hands of the magistrate, but to preserve the members of that society in their lives, liberties, and possessions, and so cannot be an absolute, arbitrary power over their lives and fortunes, which are as much as possible to be preserved; but a power to make laws, and annex such penalties to them as may tend to the preservation of the whole, by cutting off those parts, and those only, which are so corrupt that they threaten the sound and healthy, without which no severity is lawful. And this power has its original only from compact and agreement and the mutual consent of those who make up the community.
172. Thirdly, despotical power is an absolute, arbitrary power one man has over another, to take away his life whenever he pleases; and this is a power which neither Nature gives, for it has made no such distinction between one man and another, nor compact can convey. For man, not having such an arbitrary power over his own life, cannot give another man such a power over it, but it is the effect only of forfeiture which the aggressor makes of his own life when he puts himself into the state of war with another. For having quitted reason, which God hath given to be the rule betwixt man and man, and the peaceable ways which that teaches, and made use of force to compass his unjust ends upon another where he has no right, he renders himself liable to be destroyed by his adversary whenever he can, as any other noxious and brutish creature that is destructive to his being. And thus captives, taken in a just and lawful war, and such only, are subject to a despotical power, which, as it arises not from compact, so neither is it capable of any, but is the state of war continued. For what compact can be made with a man that is not master of his own life? What condition can he perform? And if he be once allowed to be master of his own life, the despotical, arbitrary power of his master ceases. He that is master of himself and his own life has a right, too, to the means of preserving it; so that as soon as compact enters, slavery ceases, and he so far quits his absolute power and puts an end to the state of war who enters into conditions with his captive.
173. Nature gives the first of these- viz., paternal power to parents for the benefit of their children during their minority, to supply their want of ability and understanding how to manage their property. (By property I must be understood here, as in other places, to mean that property which men have in their persons as well as goods.) Voluntary agreement gives the second- viz., political power to governors, for the benefit of their subjects, to secure them in the possession and use of their properties. And forfeiture gives the third- despotical power to lords for their own benefit over those who are stripped of all property.
174. He that shall consider the distinct rise and extent, and the different ends of these several powers, will plainly see that paternal power comes as far short of that of the magistrate as despotical exceeds it; and that absolute dominion, however placed, is so far from being one kind of civil society that it is as inconsistent with it as slavery is with property. Paternal power is only where minority makes the child incapable to manage his property; political where men have property in their own disposal; and despotical over such as have no property at all.
175. THOUGH governments can originally have no other rise than that before mentioned, nor polities be founded on anything but the consent of the people, yet such have been the disorders ambition has filled the world with, that in the noise of war, which makes so great a part of the history of mankind, this consent is little taken notice of; and, therefore, many have mistaken the force of arms for the consent of the people, and reckon conquest as one of the originals of government. But conquest is as far from setting up any government as demolishing a house is from building a new one in the place. Indeed, it often makes way for a new frame of a commonwealth by destroying the former; but, without the consent of the people, can never erect a new one.
176. That the aggressor, who puts himself into the state of war with another, and unjustly invades another man′s right, can, by such an unjust war, never come to have a right over the conquered, will be easily agreed by all men, who will not think that robbers and pirates have a right of empire over whomsoever they have force enough to master, or that men are bound by promises which unlawful force extorts from them. Should a robber break into my house, and, with a dagger at my throat, make me seal deeds to convey my estate to him, would this give him any title? Just such a title by his sword has an unjust conqueror who forces me into submission. The injury and the crime is equal, whether committed by the wearer of a crown or some petty villain. The title of the offender and the number of his followers make no difference in the offence, unless it be to aggravate it. The only difference is, great robbers punish little ones to keep them in their obedience; but the great ones are rewarded with laurels and triumphs, because they are too big for the weak hands of justice in this world, and have the power in their own possession which should punish offenders. What is my remedy against a robber that so broke into my house? Appeal to the law for justice. But perhaps justice is denied, or I am crippled and cannot stir; robbed, and have not the means to do it. If God has taken away all means of seeking remedy, there is nothing left but patience. But my son, when able, may seek the relief of the law, which I am denied; he or his son may renew his appeal till he recover his right. But the conquered, or their children, have no court- no arbitrator on earth to appeal to. Then they may appeal, as Jephtha did, to Heaven, and repeat their appeal till they have recovered the native right of their ancestors, which was to have such a legislative over them as the majority should approve and freely acquiesce in. If it be objected this would cause endless trouble, I answer, no more than justice does, where she lies open to all that appeal to her. He that troubles his neighbour without a cause is punished for it by the justice of the court he appeals to. And he that appeals to Heaven must be sure he has right on his side, and a right, too, that is worth the trouble and cost of the appeal, as he will answer at a tribunal that cannot be deceived, and will be sure to retribute to every one according to the mischiefs he hath created to his fellow-subjects- that is, any part of mankind. From whence it is plain that he that conquers in an unjust war can thereby have no title to the subjection and obedience of the conquered.
177. But supposing victory favours the right side, let us consider a conqueror in a lawful war, and see what power he gets, and over whom.
First, it is plain he gets no power by his conquest over those that conquered with him. They that fought on his side cannot suffer by the conquest, but must, at least, be as much free men as they were before. And most commonly they serve upon terms, and on condition to share with their leader, and enjoy a part of the spoil and other advantages that attend the conquering sword, or, at least, have a part of the subdued country bestowed upon them. And the conquering people are not, I hope, to be slaves by conquest, and wear their laurels only to show they are sacrifices to their leader′s triumph. They that found absolute monarchy upon the title of the sword make their heroes, who are the founders of such monarchies, arrant “draw-can-sirs,” and forget they had any officers and soldiers that fought on their side in the battles they won, or assisted them in the subduing, or shared in possessing the countries they mastered. We are told by some that the English monarchy is founded in the Norman Conquest, and that our princes have thereby a title to absolute dominion, which, if it were true (as by the history it appears otherwise), and that William had a right to make war on this island, yet his dominion by conquest could reach no farther than to the Saxons and Britons that were then inhabitants of this country. The Normans that came with him and helped to conquer, and all descended from them, are free men and no subjects by conquest, let that give what dominion it will. And if I or anybody else shall claim freedom as derived from them, it will be very hard to prove the contrary; and it is plain, the law that has made no distinction between the one and the other intends not there should be any difference in their freedom or privileges.
178. But supposing, which seldom happens, that the conquerors and conquered never incorporate into one people under the same laws and freedom; let us see next what power a lawful conqueror has over the subdued, and that I say is purely despotical. He has an absolute power over the lives of those who, by an unjust war, have forfeited them, but not over the lives or fortunes of those who engaged not in the war, nor over the possessions even of those who were actually engaged in it.
179. Secondly, I say, then, the conqueror gets no power but only over those who have actually assisted, concurred, or consented to that unjust force that is used against him. For the people having given to their governors no power to do an unjust thing, such as is to make an unjust war (for they never had such a power in themselves), they ought not to be charged as guilty of the violence and injustice that is committed in an unjust war any farther than they actually abet it, no more than they are to be thought guilty of any violence or oppression their governors should use upon the people themselves or any part of their fellow-subjects, they having empowered them no more to the one than to the other. Conquerors, it is true, seldom trouble themselves to make the distinction, but they willingly permit the confusion of war to sweep all together; but yet this alters not the right; for the conqueror′s power over the lives of the conquered being only because they have used force to do or maintain an injustice, he can have that power only over those who have concurred in that force; all the rest are innocent, and he has no more title over the people of that country who have done him no injury, and so have made no forfeiture of their lives, than he has over any other who, without any injuries or provocations, have lived upon fair terms with him.
180. Thirdly, the power a conqueror gets over those he overcomes in a just war is perfectly despotical; he has an absolute power over the lives of those who, by putting themselves in a state of war, have forfeited them, but he has not thereby a right and title to their possessions. This I doubt not but at first sight will seem a strange doctrine, it being so quite contrary to the practice of the world; there being nothing more familiar in speaking of the dominion of countries than to say such an one conquered it, as if conquest, without any more ado, conveyed a right of possession. But when we consider that the practice of the strong and powerful, how universal soever it may be, is seldom the rule of right, however it be one part of the subjection of the conquered not to argue against the conditions cut out to them by the conquering swords.
181. Though in all war there be usually a complication of force and damage, and the aggressor seldom fails to harm the estate when he uses force against the persons of those he makes war upon, yet it is the use of force only that puts a man into the state of war. For whether by force he begins the injury, or else having quietly and by fraud done the injury, he refuses to make reparation, and by force maintains it, which is the same thing as at first to have done it by force; it is the unjust use of force that makes the war. For he that breaks open my house and violently turns me out of doors, or having peaceably got in, by force keeps me out, does, in effect, the same thing; supposing we are in such a state that we have no common judge on earth whom I may appeal to, and to whom we are both obliged to submit, for of such I am now speaking. It is the unjust use of force, then, that puts a man into the state of war with another, and thereby he that is guilty of it makes a forfeiture of his life. For quitting reason, which is the rule given between man and man, and using force, the way of beasts, he becomes liable to be destroyed by him he uses force against, as any savage ravenous beast that is dangerous to his being.
182. But because the miscarriages of the father are no faults of the children, who may be rational and peaceable, notwithstanding the brutishness and injustice of the father, the father, by his miscarriages and violence, can forfeit but his own life, and involves not his children in his guilt or destruction. His goods which Nature, that willeth the preservation of all mankind as much as is possible, hath made to belong to the children to keep them from perishing, do still continue to belong to his children. For supposing them not to have joined in the war either through infancy or choice, they have done nothing to forfeit them, nor has the conqueror any right to take them away by the bare right of having subdued him that by force attempted his destruction, though, perhaps, he may have some right to them to repair the damages he has sustained by the war, and the defence of his own right, which how far it reaches to the possessions of the conquered we shall see by-and-by; so that he that by conquest has a right over a man′s person, to destroy him if he pleases, has not thereby a right over his estate to possess and enjoy it. For it is the brutal force the aggressor has used that gives his adversary a right to take away his life and destroy him, if he pleases, as a noxious creature; but it is damage sustained that alone gives him title to another man′s goods; for though I may kill a thief that sets on me in the highway, yet I may not (which seems less) take away his money and let him go; this would be robbery on my side. His force, and the state of war he put himself in, made him forfeit his life, but gave me no title to his goods. The right, then, of conquest extends only to the lives of those who joined in the war, but not to their estates, but only in order to make reparation for the damages received and the charges of the war, and that, too, with reservation of the right of the innocent wife and children.
183. Let the conqueror have as much justice on his side as could be supposed, he has no right to seize more than the vanquished could forfeit; his life is at the victor′s mercy, and his service and goods he may appropriate to make himself reparation; but he cannot take the goods of his wife and children, they too had a title to the goods he enjoyed, and their shares in the estate he possessed. For example, I in the state of Nature (and all commonwealths are in the state of Nature one with another) have injured another man, and refusing to give satisfaction, it is come to a state of war wherein my defending by force what I had gotten unjustly makes me the aggressor. I am conquered; my life, it is true, as forfeit, is at mercy, but not my wife′s and children′s. They made not the war, nor assisted in it. I could not forfeit their lives, they were not mine to forfeit. My wife had a share in my estate, that neither could I forfeit. And my children also, being born of me, had a right to be maintained out of my labour or substance. Here then is the case: The conqueror has a title to reparation for damages received, and the children have a title to their father′s estate for their subsistence. For as to the wife′s share, whether her own labour or compact gave her a title to it, it is plain her husband could not forfeit what was hers. What must be done in the case? I answer: The fundamental law of Nature being that all, as much as may be, should be preserved, it follows that if there be not enough fully to satisfy both- viz., for the conqueror′s losses and children′s maintenance, he that hath and to spare must remit something of his full satisfaction, and give way to the pressing and preferable title of those who are in danger to perish without it.
184. But supposing the charge and damages of the war are to be made up to the conqueror to the utmost farthing, and that the children of the vanquished, spoiled of all their father′s goods, are to be left to starve and perish, yet the satisfying of what shall, on this score, be due to the conqueror will scarce give him a title to any country he shall conquer. For the damages of war can scarce amount to the value of any considerable tract of land in any part of the world, where all the land is possessed, and none lies waste. And if I have not taken away the conqueror′s land which, being vanquished, it is impossible I should, scarce any other spoil I have done him can amount to the value of mine, supposing it of an extent any way coming near what I had overrun of his, and equally cultivated too. The destruction of a year′s product or two (for it seldom reaches four or five) is the utmost spoil that usually can be done. For as to money, and such riches and treasure taken away, these are none of Nature′s goods, they have but a phantastical imaginary value; Nature has put no such upon them. They are of no more account by her standard than the Wampompeke of the Americans to an European prince, or the silver money of Europe would have been formerly to an American. And five years′ product is not worth the perpetual inheritance of land, where all is possessed and none remains waste, to be taken up by him that is disseised, which will be easily granted, if one do but take away the imaginary value of money, the disproportion being more than between five and five thousand; though, at the same time, half a year′s product is more worth than the inheritance where, there being more land than the inhabitants possess and make use of, any one has liberty to make use of the waste. But their conquerors take little care to possess themselves of the lands of the vanquished. No damage therefore that men in the state of Nature (as all princes and governments are in reference to one another) suffer from one another can give a conqueror power to dispossess the posterity of the vanquished, and turn them out of that inheritance which ought to be the possession of them and their descendants to all generations. The conqueror indeed will be apt to think himself master; and it is the very condition of the subdued not to be able to dispute their right. But, if that be all, it gives no other title than what bare force gives to the stronger over the weaker; and, by this reason, he that is strongest will have a right to whatever he pleases to seize on.
185. Over those, then, that joined with him in the war, and over those of the subdued country that opposed him not, and the posterity even of those that did, the conqueror, even in a just war, hath, by his conquest, no right of dominion. They are free from any subjection to him, and if their former government be dissolved, they are at liberty to begin and erect another to themselves.
186. The conqueror, it is true, usually by the force he has over them, compels them, with a sword at their breasts, to stoop to his conditions, and submit to such a government as he pleases to afford them; but the inquiry is, what right he has to do so? If it be said they submit by their own consent, then this allows their own consent to be necessary to give the conqueror a title to rule over them. It remains only to be considered whether promises, extorted by force, without right, can be thought consent, and how far they bind. To which I shall say, they bind not at all; because whatsoever another gets from me by force, I still retain the right of, and he is obliged presently to restore. He that forces my horse from me ought presently to restore him, and I have still a right to retake him. By the same reason, he that forced a promise from me ought presently to restore it- i.e., quit me of the obligation of it; or I may resume it myself- i.e., choose whether I will perform it. For the law of Nature laying an obligation on me, only by the rules she prescribes, cannot oblige me by the violation of her rules; such is the extorting anything from me by force. Nor does it at all alter the case, to say I gave my promise, no more than it excuses the force, and passes the right, when I put my hand in my pocket and deliver my purse myself to a thief who demands it with a pistol at my breast.
187. From all which it follows that the government of a conqueror, imposed by force on the subdued, against whom he had no right of war, or who joined not in the war against him, where he had right, has no obligation upon them.
188. But let us suppose that all the men of that community being all members of the same body politic, may be taken to have joined in that unjust war, wherein they are subdued, and so their lives are at the mercy of the conqueror.
189. I say this concerns not their children who are in their minority. For since a father hath not, in himself, a power over the life or liberty of his child, no act of his can possibly forfeit it; so that the children, whatever may have happened to the fathers, are free men, and the absolute power of the conqueror reaches no farther than the persons of the men that were subdued by him, and dies with them; and should he govern them as slaves, subjected to his absolute, arbitrary power, he has no such right of dominion over their children. He can have no power over them but by their own consent, whatever he may drive them to say or do, and he has no lawful authority, whilst force, and not choice, compels them to submission.
190. Every man is born with a double right. First, a right of freedom to his person, which no other man has a power over, but the free disposal of it lies in himself. Secondly, a right before any other man, to inherit, with his brethren, his father′s goods.
191. By the first of these, a man is naturally free from subjection to any government, though he be born in a place under its jurisdiction. But if he disclaim the lawful government of the country he was born in, he must also quit the right that belonged to him, by the laws of it, and the possessions there descending to him from his ancestors, if it were a government made by their consent.
192. By the second, the inhabitants of any country, who are descended and derive a title to their estates from those who are subdued, and had a government forced upon them, against their free consents, retain a right to the possession of their ancestors, though they consent not freely to the government, whose hard conditions were, by force, imposed on the possessors of that country. For the first conqueror never having had a title to the land of that country, the people, who are the descendants of, or claim under those who were forced to submit to the yoke of a government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny the sword hath brought in upon them, till their rulers put them under such a frame of government as they willingly and of choice consent to (which they can never be supposed to do, till either they are put in a full state of liberty to choose their government and governors, or at least till they have such standing laws to which they have, by themselves or their representatives, given their free consent, and also till they are allowed their due property, which is so to be proprietors of what they have that nobody can take away any part of it without their own consent, without which, men under any government are not in the state of free men, but are direct slaves under the force of war). And who doubts but the Grecian Christians, descendants of the ancient possessors of that country, may justly cast off the Turkish yoke they have so long groaned under, whenever they have a power to do it?
193. But granting that the conqueror, in a just war, has a right to the estates, as well as power over the persons of the conquered, which, it is plain, he hath not, nothing of absolute power will follow from hence in the continuance of the government. Because the descendants of these being all free men, if he grants them estates and possessions to inhabit his country, without which it would be worth nothing, whatsoever he grants them they have so far as it is granted property in; the nature whereof is, that, without a man′s own consent, it cannot be taken from him.
194. Their persons are free by a native right, and their properties, be they more or less, are their own, and at their own dispose, and not at his; or else it is no property. Supposing the conqueror gives to one man a thousand acres, to him and his heirs for ever; to another he lets a thousand acres, for his life, under the rent of L50 or L500 per annum. Has not the one of these a right to his thousand acres for ever, and the other during his life, paying the said rent? And hath not the tenant for life a property in all that he gets over and above his rent, by his labour and industry, during the said term, supposing it be double the rent? Can any one say, the king, or conqueror, after his grant, may, by his power of conqueror, take away all, or part of the land, from the heirs of one, or from the other during his life, he paying the rent? Or, can he take away from either the goods or money they have got upon the said land at his pleasure? If he can, then all free and voluntary contracts cease, and are void in the world; there needs nothing but power enough to dissolve them at any time, and all the grants and promises of men in power are but mockery and collusion. For can there be anything more ridiculous than to say, I give you and yours this for ever, and that in the surest and most solemn way of conveyance can be devised, and yet it is to be understood that I have right, if I please, to take it away from you again to-morrow?
195. I will not dispute now whether princes are exempt from the laws of their country, but this I am sure, they owe subjection to the laws of God and Nature. Nobody, no power can exempt them from the obligations of that eternal law. Those are so great and so strong in the case of promises, that Omnipotency itself can be tied by them. Grants, promises, and oaths are bonds that hold the Almighty, whatever some flatterers say to princes of the world, who, all together, with all their people joined to them, are, in comparison of the great God, but as a drop of the bucket, or a dust on the balance- inconsiderable, nothing!
196. The short of the case in conquest, is this: The conqueror, if he have a just cause, has a despotical right over the persons of all that actually aided and concurred in the war against him, and a right to make up his damage and cost out of their labour and estates, so he injure not the right of any other. Over the rest of the people, if there were any that consented not to the war, and over the children of the captives themselves or the possessions of either he has no power, and so can have, by virtue of conquest, no lawful title himself to dominion over them, or derive it to his posterity; but is an aggressor, and puts himself in a state of war against them, and has no better a right of principality, he, nor any of his successors, than Hingar, or Hubba, the Danes, had here in England, or Spartacus, had be conquered Italy, which is to have their yoke cast off as soon as God shall give those under their subjection courage and opportunity to do it. Thus, notwithstanding whatever title the kings of Assyria had over Judah, by the sword, God assisted Hezekiah to throw off the dominion of that conquering empire. “And the Lord was with Hezekiah, and he prospered; wherefore he went forth, and he rebelled against the king of Assyria, and served him not” (II Kings 18. 7). Whence it is plain that shaking off a power which force, and not right, hath set over any one, though it hath the name of rebellion, yet is no offence before God, but that which He allows and countenances, though even promises and covenants, when obtained by force, have intervened. For it is very probable, to any one that reads the story of Ahaz and Hezekiah attentively, that the Assyrians subdued Ahaz, and deposed him, and made Hezekiah king in his father′s lifetime, and that Hezekiah, by agreement, had done him homage, and paid him tribute till this time.
197. As conquest may be called a foreign usurpation, so usurpation is a kind of domestic conquest, with this difference- that an usurper can never have right on his side, it being no usurpation but where one is got into the possession of what another has right to. This, so far as it is usurpation, is a change only of persons, but not of the forms and rules of the government; for if the usurper extend his power beyond what, of right, belonged to the lawful princes or governors of the commonwealth, it is tyranny added to usurpation.
198. In all lawful governments the designation of the persons who are to bear rule being as natural and necessary a part as the form of the government itself, and that which had its establishment originally from the people- the anarchy being much alike, to have no form of government at all, or to agree that it shall be monarchical, yet appoint no way to design the person that shall have the power and be the monarch- all commonwealths, therefore, with the form of government established, have rules also of appointing and conveying the right to those who are to have any share in the public authority; and whoever gets into the exercise of any part of the power by other ways than what the laws of the community have prescribed hath no right to be obeyed, though the form of the commonwealth be still preserved, since he is not the person the laws have appointed, and, consequently, not the person the people have consented to. Nor can such an usurper, or any deriving from him, ever have a title till the people are both at liberty to consent, and have actually consented, to allow and confirm in him the power he hath till then usurped.
199. As usurpation is the exercise of power which another hath a right to, so tyranny is the exercise of power beyond right, which nobody can have a right to; and this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private, separate advantage. When the governor, however entitled, makes not the law, but his will, the rule, and his commands and actions are not directed to the preservation of the properties of his people, but the satisfaction of his own ambition, revenge, covetousness, or any other irregular passion.
200. If one can doubt this to be truth or reason because it comes from the obscure hand of a subject, I hope the authority of a king will make it pass with him. King James, in his speech to the Parliament, 16O3, tells them thus: “I will ever prefer the weal of the public and of the whole commonwealth, in making of good laws and constitutions, to any particular and private ends of mine, thinking ever the wealth and weal of the commonwealth to be my greatest weal and worldly felicity- a point wherein a lawful king doth directly differ from a tyrant; for I do acknowledge that the special and greatest point of difference that is between a rightful king and an usurping tyrant is this- that whereas the proud and ambitious tyrant doth think his kingdom and people are only ordained for satisfaction of his desires and unreasonable appetites, the righteous and just king doth, by the contrary, acknowledge himself to be ordained for the procuring of the wealth and property of his people.” And again, in his speech to the Parliament, 1609, he hath these words: “The king binds himself, by a double oath, to the observation of the fundamental laws of his kingdom- tacitly, as by being a king, and so bound to protect, as well the people as the laws of his kingdom; and expressly by his oath at his coronation; so as every just king, in a settled kingdom, is bound to observe that paction made to his people, by his laws, in framing his government agreeable thereunto, according to that paction which God made with Noah after the deluge: ′Hereafter, seed-time, and harvest, and cold, and heat, and summer, and winter, and day, and night, shall not cease while the earth remaineth.′ And therefore a king, governing in a settled kingdom, leaves to be a king, and degenerates into a tyrant, as soon as he leaves off to rule according to his laws.” And a little after: “Therefore, all kings that are not tyrants, or perjured, will be glad to bound themselves within the limits of their laws, and they that persuade them the contrary are vipers, pests, both against them and the commonwealth.” Thus, that learned king, who well understood the notions of things, makes the difference betwixt a king and a tyrant to consist only in this: that one makes the laws the bounds of his power and the good of the public the end of his government; the other makes all give way to his own will and appetite.
201. It is a mistake to think this fault is proper only to monarchies. Other forms of government are liable to it as well as that; for wherever the power that is put in any hands for the government of the people and the preservation of their properties is applied to other ends, and made use of to impoverish, harass, or subdue them to the arbitrary and irregular commands of those that have it, there it presently becomes tyranny, whether those that thus use it are one or many. Thus we read of the thirty tyrants at Athens, as well as one at Syracuse; and the intolerable dominion of the Decemviri at Rome was nothing better.
202. Wherever law ends, tyranny begins, if the law be transgressed to another′s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command to compass that upon the subject which the law allows not, ceases in that to be a magistrate, and acting without authority may be opposed, as any other man who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street may be opposed as a thief and a robber if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant and such a legal authority as will empower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed. Is it reasonable that the eldest brother, because he has the greatest part of his father′s estate, should thereby have a right to take away any of his younger brothers′ portions? Or that a rich man, who possessed a whole country, should from thence have a right to seize, when he pleased, the cottage and garden of his poor neighbour? The being rightfully possessed of great power and riches, exceedingly beyond the greatest part of the sons of Adam, is so far from being an excuse, much less a reason for rapine and oppression, which the endamaging another without authority is, that it is a great aggravation of it. For exceeding the bounds of authority is no more a right in a great than a petty officer, no more justifiable in a king than a constable. But so much the worse in him as that he has more trust put in him, is supposed, from the advantage of education and counsellors, to have better knowledge and less reason to do it, having already a greater share than the rest of his brethren.
203. May the commands, then, of a prince be opposed? May he be resisted, as often as any one shall find himself aggrieved, and but imagine he has not right done him? This will unhinge and overturn all polities, and instead of government and order, leave nothing but anarchy and confusion.
204. To this I answer: That force is to be opposed to nothing but to unjust and unlawful force. Whoever makes any opposition in any other case draws on himself a just condemnation, both from God and man; and so no such danger or confusion will follow, as is often suggested. For-
205. First. As in some countries the person of the prince by the law is sacred, and so whatever he commands or does, his person is still free from all question or violence, not liable to force, or any judicial censure or condemnation. But yet opposition may be made to the illegal acts of any inferior officer or other commissioned by him, unless he will, by actually putting himself into a state of war with his people, dissolve the government, and leave them to that defence, which belongs to every one in the state of Nature. For of such things, who can tell what the end will be? And a neighbour kingdom has showed the world an odd example. In all other cases the sacredness of the person exempts him from all inconveniencies, whereby he is secure, whilst the government stands, from all violence and harm whatsoever, than which there cannot be a wiser constitution. For the harm he can do in his own person not being likely to happen often, nor to extend itself far, nor being able by his single strength to subvert the laws nor oppress the body of the people, should any prince have so much weakness and ill-nature as to be willing to do it. The inconveniency of some particular mischiefs that may happen sometimes when a heady prince comes to the throne are well recompensed by the peace of the public and security of the government in the person of the chief magistrate, thus set out of the reach of danger; it being safer for the body that some few private men should be sometimes in danger to suffer than that the head of the republic should be easily and upon slight occasions exposed.
206. Secondly. But this privilege, belonging only to the king′s person, hinders not but they may be questioned, opposed, and resisted, who use unjust force, though they pretend a commission from him which the law authorises not; as is plain in the case of him that has the king′s writ to arrest a man which is a full commission from the king, and yet he that has it cannot break open a man′s house to do it, nor execute this command of the king upon certain days nor in certain places, though this commission have no such exception in it; but they are the limitations of the law, which, if any one transgress, the king′s commission excuses him not. For the king′s authority being given him only by the law, he cannot empower any one to act against the law, or justify him by his commission in so doing. The commission or command of any magistrate where he has no authority, being as void and insignificant as that of any private man, the difference between the one and the other being that the magistrate has some authority so far and to such ends, and the private man has none at all; for it is not the commission but the authority that gives the right of acting, and against the laws there can be no authority. But notwithstanding such resistance, the king′s person and authority are still both secured, and so no danger to governor or government.
207. Thirdly. Supposing a government wherein the person of the chief magistrate is not thus sacred, yet this doctrine of the lawfulness of resisting all unlawful exercises of his power will not, upon every slight occasion, endanger him or embroil the government; for where the injured party may be relieved and his damages repaired by appeal to the law, there can be no pretence for force, which is only to be used where a man is intercepted from appealing to the law. For nothing is to be accounted hostile force but where it leaves not the remedy of such an appeal. and it is such force alone that puts him that uses it into a state of war, and makes it lawful to resist him. A man with a sword in his hand demands my purse on the highway, when perhaps I have not 12d. in my pocket. This man I may lawfully kill. To another I deliver L100 to hold only whilst I alight, which he refuses to restore me when I am got up again, but draws his sword to defend the possession of it by force. I endeavour to retake it. The mischief this man does me is a hundred, or possibly a thousand times more than the other perhaps intended me (whom I killed before he really did me any); and yet I might lawfully kill the one and cannot so much as hurt the other lawfully. The reason whereof is plain; because the one using force which threatened my life, I could not have time to appeal to the law to secure it, and when it was gone it was too late to appeal. The law could not restore life to my dead carcass. The loss was irreparable; which to prevent the law of Nature gave me a right to destroy him who had put himself into a state of war with me and threatened my destruction. But in the other case, my life not being in danger, I might have the benefit of appealing to the law, and have reparation for my L100 that way.
208. Fourthly. But if the unlawful acts done by the magistrate be maintained (by the power he has got), and the remedy, which is due by law, be by the same power obstructed, yet the right of resisting, even in such manifest acts of tyranny, will not suddenly, or on slight occasions, disturb the government. For if it reach no farther than some private men′s cases, though they have a right to defend themselves, and to recover by force what by unlawful force is taken from them, yet the right to do so will not easily engage them in a contest wherein they are sure to perish; it being as impossible for one or a few oppressed men to disturb the government where the body of the people do not think themselves concerned in it, as for a raving madman or heady malcontent to overturn a well-settled state, the people being as little apt to follow the one as the other.
209. But if either these illegal acts have extended to the majority of the people, or if the mischief and oppression has light only on some few, but in such cases as the precedent and consequences seem to threaten all, and they are persuaded in their consciences that their laws, and with them, their estates, liberties, and lives are in danger, and perhaps their religion too, how they will be hindered from resisting illegal force used against them I cannot tell. This is an inconvenience, I confess, that attends all governments whatsoever, when the governors have brought it to this pass, to be generally suspected of their people, the most dangerous state they can possibly put themselves in; wherein they are the less to be pitied, because it is so easy to be avoided. It being as impossible for a governor, if he really means the good of his people, and the preservation of them and their laws together, not to make them see and feel it, as it is for the father of a family not to let his children see he loves and takes care of them.
210. But if all the world shall observe pretences of one kind, and actions of another, arts used to elude the law, and the trust of prerogative (which is an arbitrary power in some things left in the prince′s hand to do good, not harm, to the people) employed contrary to the end for which it was given; if the people shall find the ministers and subordinate magistrates chosen, suitable to such ends, and favoured or laid by proportionably as they promote or oppose them; if they see several experiments made of arbitrary power, and that religion underhand favoured, though publicly proclaimed against, which is readiest to introduce it, and the operators in it supported as much as may be; and when that cannot be done, yet approved still, and liked the better, and a long train of acting show the counsels all tending that way, how can a man any more hinder himself from being persuaded in his own mind which way things are going; or, from casting about how to save himself, than he could from believing the captain of a ship he was in was carrying him and the rest of the company to Algiers, when he found him always steering that course, though cross winds, leaks in his ship, and want of men and provisions did often force him to turn his course another way for some time, which he steadily returned to again as soon as the wind, weather, and other circumstances would let him?
211. HE that will, with any clearness, speak of the dissolution of government, ought in the first place to distinguish between the dissolution of the society and the dissolution of the government. That which makes the community, and brings men out of the loose state of Nature into one politic society, is the agreement which every one has with the rest to incorporate and act as one body, and so be one distinct commonwealth. The usual, and almost only way whereby this union is dissolved, is the inroad of foreign force making a conquest upon them. For in that case (not being able to maintain and support themselves as one entire and independent body) the union belonging to that body, which consisted therein, must necessarily cease, and so every one return to the state he was in before, with a liberty to shift for himself and provide for his own safety, as he thinks fit, in some other society. Whenever the society is dissolved, it is certain the government of that society cannot remain. Thus conquerors′ swords often cut up governments by the roots, and mangle societies to pieces, separating the subdued or scattered multitude from the protection of and dependence on that society which ought to have preserved them from violence. The world is too well instructed in, and too forward to allow of this way of dissolving of governments, to need any more to be said of it; and there wants not much argument to prove that where the society is dissolved, the government cannot remain; that being as impossible as for the frame of a house to subsist when the materials of it are scattered and displaced by a whirlwind, or jumbled into a confused heap by an earthquake.
212. Besides this overturning from without, governments are dissolved from within:
First. When the legislative is altered, civil society being a state of peace amongst those who are of it, from whom the state of war is excluded by the umpirage which they have provided in their legislative for the ending all differences that may arise amongst any of them; it is in their legislative that the members of a commonwealth are united and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth; from hence the several members have their mutual influence, sympathy, and connection; and therefore when the legislative is broken, or dissolved, dissolution and death follows. For the essence and union of the society consisting in having one will, the legislative, when once established by the majority, has the declaring and, as it were, keeping of that will. The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union under the direction of persons and bonds of laws, made by persons authorised thereunto, by the consent and appointment of the people, without which no one man, or number of men, amongst them can have authority of making laws that shall be binding to the rest. When any one, or more, shall take upon them to make laws whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those who, without authority, would impose anything upon them. Every one is at the disposure of his own will, when those who had, by the delegation of the society, the declaring of the public will, are excluded from it, and others usurp the place who have no such authority or delegation.
213. This being usually brought about by such in the commonwealth, who misuse the power they have, it is hard to consider it aright, and know at whose door to lay it, without knowing the form of government in which it happens. Let us suppose, then, the legislative placed in the concurrence of three distinct persons:- First, a single hereditary person having the constant, supreme, executive power, and with it the power of convoking and dissolving the other two within certain periods of time. Secondly, an assembly of hereditary nobility. Thirdly, an assembly of representatives chosen, pro tempore, by the people. Such a form of government supposed, it is evident:
214. First, that when such a single person or prince sets up his own arbitrary will in place of the laws which are the will of the society declared by the legislative, then the legislative is changed. For that being, in effect, the legislative whose rules and laws are put in execution, and required to be obeyed, when other laws are set up, and other rules pretended and enforced than what the legislative, constituted by the society, have enacted, it is plain that the legislative is changed. Whoever introduces new laws, not being thereunto authorised, by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative.
215. Secondly, when the prince hinders the legislative from assembling in its due time, or from acting freely, pursuant to those ends for which it was constituted, the legislative is altered. For it is not a certain number of men- no, nor their meeting, unless they have also freedom of debating and leisure of perfecting what is for the good of the society, wherein the legislative consists; when these are taken away, or altered, so as to deprive the society of the due exercise of their power, the legislative is truly altered. For it is not names that constitute governments, but the use and exercise of those powers that were intended to accompany them; so that he who takes away the freedom, or hinders the acting of the legislative in its due seasons, in effect takes away the legislative, and puts an end to the government.
216. Thirdly, when, by the arbitrary power of the prince, the electors or ways of election are altered without the consent and contrary to the common interest of the people, there also the legislative is altered. For if others than those whom the society hath authorised thereunto do choose, or in another way than what the society hath prescribed, those chosen are not the legislative appointed by the people.
217. Fourthly, the delivery also of the people into the subjection of a foreign power, either by the prince or by the legislative, is certainly a change of the legislative, and so a dissolution of the government. For the end why people entered into society being to be preserved one entire, free, independent society to be governed by its own laws, this is lost whenever they are given up into the power of another.
218. Why, in such a constitution as this, the dissolution of the government in these cases is to be imputed to the prince is evident, because he, having the force, treasure, and offices of the State to employ, and often persuading himself or being flattered by others, that, as supreme magistrate, he is incapable of control; he alone is in a condition to make great advances towards such changes under pretence of lawful authority, and has it in his hands to terrify or suppress opposers as factious, seditious, and enemies to the government; whereas no other part of the legislative, or people, is capable by themselves to attempt any alteration of the legislative without open and visible rebellion, apt enough to be taken notice of, which, when it prevails, produces effects very little different from foreign conquest. Besides, the prince, in such a form of government, having the power of dissolving the other parts of the legislative, and thereby rendering them private persons, they can never, in opposition to him, or without his concurrence, alter the legislative by a law, his consent being necessary to give any of their decrees that sanction. But yet so far as the other parts of the legislative any way contribute to any attempt upon the government, and do either promote, or not, what lies in them, hinder such designs, they are guilty, and partake in this, which is certainly the greatest crime men can be guilty of one towards another.
219. There is one way more whereby such a government may be dissolved, and that is: When he who has the supreme executive power neglects and abandons that charge, so that the laws already made can no longer be put in execution; this is demonstratively to reduce all to anarchy, and so effectively to dissolve the government. For laws not being made for themselves, but to be, by their execution, the bonds of the society to keep every part of the body politic in its due place and function. When that totally ceases, the government visibly ceases, and the people become a confused multitude without order or connection. Where there is no longer the administration of justice for the securing of men′s rights, nor any remaining power within the community to direct the force, or provide for the necessities of the public, there certainly is no government left. Where the laws cannot be executed it is all one as if there were no laws, and a government without laws is, I suppose, a mystery in politics inconceivable to human capacity, and inconsistent with human society.
220. In these, and the like cases, when the government is dissolved, the people are at liberty to provide for themselves by erecting a new legislative differing from the other by the change of persons, or form, or both, as they shall find it most for their safety and good. For the society can never, by the fault of another, lose the native and original right it has to preserve itself, which can only be done by a settled legislative and a fair and impartial execution of the laws made by it. But the state of mankind is not so miserable that they are not capable of using this remedy till it be too late to look for any. To tell people they may provide for themselves by erecting a new legislative, when, by oppression, artifice, or being delivered over to a foreign power, their old one is gone, is only to tell them they may expect relief when it is too late, and the evil is past cure. This is, in effect, no more than to bid them first be slaves, and then to take care of their liberty, and, when their chains are on, tell them they may act like free men. This, if barely so, is rather mockery than relief, and men can never be secure from tyranny if there be no means to escape it till they are perfectly under it; and, therefore, it is that they have not only a right to get out of it, but to prevent it.
221. There is, therefore, secondly, another way whereby governments are dissolved, and that is, when the legislative, or the prince, either of them act contrary to their trust.
For the legislative acts against the trust reposed in them when they endeavour to invade the property of the subject, and to make themselves, or any part of the community, masters or arbitrary disposers of the lives, liberties, or fortunes of the people.
222. The reason why men enter into society is the preservation of their property; and the end while they choose and authorise a legislative is that there may be laws made, and rules set, as guards and fences to the properties of all the society, to limit the power and moderate the dominion of every part and member of the society. For since it can never be supposed to be the will of the society that the legislative should have a power to destroy that which every one designs to secure by entering into society, and for which the people submitted themselves to legislators of their own making: whenever the legislators endeavour to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people, who are thereupon absolved from any farther obedience, and are left to the common refuge which God hath provided for all men against force and violence. Whensoever, therefore, the legislative shall transgress this fundamental rule of society, and either by ambition, fear, folly, or corruption, endeavour to grasp themselves, or put into the hands of any other, an absolute power over the lives, liberties, and estates of the people, by this breach of trust they forfeit the power the people had put into their hands for quite contrary ends, and it devolves to the people, who have a right to resume their original liberty, and by the establishment of a new legislative (such as they shall think fit), provide for their own safety and security, which is the end for which they are in society. What I have said here concerning the legislative in general holds true also concerning the supreme executor, who having a double trust put in him, both to have a part in the legislative and the supreme execution of the law, acts against both, when he goes about to set up his own arbitrary will as the law of the society. He acts also contrary to his trust when he employs the force, treasure, and offices of the society to corrupt the representatives and gain them to his purposes, when he openly pre-engages the electors, and prescribes, to their choice, such whom he has, by solicitation, threats, promises, or otherwise, won to his designs, and employs them to bring in such who have promised beforehand what to vote and what to enact. Thus to regulate candidates and electors, and new model the ways of election, what is it but to cut up the government by the roots, and poison the very fountain of public security? For the people having reserved to themselves the choice of their representatives as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen, freely act and advise as the necessity of the commonwealth and the public good should, upon examination and mature debate, be judged to require. This, those who give their votes before they hear the debate, and have weighed the reasons on all sides, are not capable of doing. To prepare such an assembly as this, and endeavour to set up the declared abettors of his own will, for the true representatives of the people, and the law-makers of the society, is certainly as great a breach of trust, and as perfect a declaration of a design to subvert the government, as is possible to be met with. To which, if one shall add rewards and punishments visibly employed to the same end, and all the arts of perverted law made use of to take off and destroy all that stand in the way of such a design, and will not comply and consent to betray the liberties of their country, it will be past doubt what is doing. What power they ought to have in the society who thus employ it contrary to the trust that along with it in its first institution, is easy to determine; and one cannot but see that he who has once attempted any such thing as this cannot any longer be trusted.
223. To this, perhaps, it will be said that the people being ignorant and always discontented, to lay the foundation of government in the unsteady opinion and uncertain humour of the people, is to expose it to certain ruin; and no government will be able long to subsist if the people may set up a new legislative whenever they take offence at the old one. To this I answer, quite the contrary. People are not so easily got out of their old forms as some are apt to suggest. They are hardly to be prevailed with to amend the acknowledged faults in the frame they have been accustomed to. And if there be any original defects, or adventitious ones introduced by time or corruption, it is not an easy thing to get them changed, even when all the world sees there is an opportunity for it. This slowness and aversion in the people to quit their old constitutions has in the many revolutions [that] have been seen in this kingdom, in this and former ages, still kept us to, or after some interval of fruitless attempts, still brought us back again to, our old legislative of king, lords and commons; and whatever provocations have made the crown be taken from some of our princes′ heads, they never carried the people so far as to place it in another line.
224. But it will be said this hypothesis lays a ferment for frequent rebellion. To which I answer:
First: no more than any other hypothesis. For when the people are made miserable, and find themselves exposed to the ill usage of arbitrary power, cry up their governors as much as you will for sons of Jupiter, let them be sacred and divine, descended or authorised from Heaven; give them out for whom or what you please, the same will happen. The people generally ill treated, and contrary to right, will be ready upon any occasion to ease themselves of a burden that sits heavy upon them. They will wish and seek for the opportunity, which in the change, weakness, and accidents of human affairs, seldom delays long to offer itself He must have lived but a little while in the world, who has not seen examples of this in his time; and he must have read very little who cannot produce examples of it in all sorts of governments in the world.
225. Secondly: I answer, such revolutions happen not upon every little mismanagement in public affairs. Great mistakes in the ruling part, many wrong and inconvenient laws, and all the slips of human frailty will be borne by the people without mutiny or murmur. But if a long train of abuses, prevarications, and artifices, all tending the same way, make the design visible to the people, and they cannot but feel what they lie under, and see whither they are going, it is not to be wondered that they should then rouse themselves, and endeavour to put the rule into such hands which may secure to them the ends for which government was at first erected, and without which, ancient names and specious forms are so far from being better, that they are much worse than the state of Nature or pure anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.
226. Thirdly: I answer, that this power in the people of providing for their safety anew by a new legislative when their legislators have acted contrary to their trust by invading their property, is the best fence against rebellion, and the probable means to hinder it. For rebellion being an opposition, not to persons, but authority, which is founded only in the constitutions and laws of the government: those, whoever they be, who, by force, break through, and, by force, justify their violation of them, are truly and properly rebels. For when men, by entering into society and civil government, have excluded force, and introduced laws for the preservation of property, peace, and unity amongst themselves, those who set up force again in opposition to the laws, do rebellare- that is, bring back again the state of war, and are properly rebels, which they who are in power, by the pretence they have to authority, the temptation of force they have in their hands, and the flattery of those about them being likeliest to do, the proper way to prevent the evil is to show them the danger and injustice of it who are under the greatest temptation to run into it.
227. In both the forementioned cases, when either the legislative is changed, or the legislators act contrary to the end for which they were constituted, those who are guilty are guilty of rebellion. For if any one by force takes away the established legislative of any society, and the laws by them made, pursuant to their trust, he thereby takes away the umpirage which every one had consented to for a peaceable decision of all their controversies, and a bar to the state of war amongst them. They who remove or change the legislative take away this decisive power, which nobody can have but by the appointment and consent of the people, and so destroying the authority which the people did, and nobody else can, set up, and introducing a power which the people hath not authorised, actually introduce a state of war, which is that of force without authority; and thus by removing the legislative established by the society, in whose decisions the people acquiesced and united as to that of their own will, they untie the knot, and expose the people anew to the state of war. And if those, who by force take away the legislative, are rebels, the legislators themselves, as has been shown, can be no less esteemed so, when they who were set up for the protection and preservation of the people, their liberties and properties shall by force invade and endeavour to take them away; and so they putting themselves into a state of war with those who made them the protectors and guardians of their peace, are properly, and with the greatest aggravation, rebellantes, rebels.
228. But if they who say it lays a foundation for rebellion mean that it may occasion civil wars or intestine broils to tell the people they are absolved from obedience when illegal attempts are made upon their liberties or properties, and may oppose the unlawful violence of those who were their magistrates when they invade their properties, contrary to the trust put in them, and that, therefore, this doctrine is not to be allowed, being so destructive to the peace of the world; they may as well say, upon the same ground, that honest men may not oppose robbers or pirates, because this may occasion disorder or bloodshed. If any mischief come in such cases, it is not to be charged upon him who defends his own right, but on him that invades his neighbour′s. If the innocent honest man must quietly quit all he has for peace sake to him who will lay violent hands upon it, I desire it may be considered what kind of a peace there will be in the world which consists only in violence and rapine, and which is to be maintained only for the benefit of robbers and oppressors. Who would not think it an admirable peace betwixt the mighty and the mean, when the lamb, without resistance, yielded his throat to be torn by the imperious wolf? Polyphemus′s den gives us a perfect pattern of such a peace. Such a government wherein Ulysses and his companions had nothing to do but quietly to suffer themselves to be devoured. And no doubt Ulysses, who was a prudent man, preached up passive obedience, and exhorted them to a quiet submission by representing to them of what concernment peace was to mankind, and by showing [what] inconveniencies might happen if they should offer to resist Polyphemus, who had now the power over them.
229. The end of government is the good of mankind; and which is best for mankind, that the people should be always exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed when they grow exorbitant in the use of their power, and employ it for the destruction, and not the preservation, of the properties of their people?
230. Nor let any one say that mischief can arise from hence as often as it shall please a busy head or turbulent spirit to desire the alteration of the government. It is true such men may stir whenever they please, but it will be only to their own just ruin and perdition. For till the mischief be grown general, and the ill designs of the rulers become visible, or their attempts sensible to the greater part, the people, who are more disposed to suffer than right themselves by resistance, are not apt to stir. The examples of particular injustice or oppression of here and there an unfortunate man moves them not. But if they universally have a persuasion grounded upon manifest evidence that designs are carrying on against their liberties, and the general course and tendency of things cannot but give them strong suspicions of the evil intention of their governors, who is to be blamed for it? Who can help it if they, who might avoid it, bring themselves into this suspicion? Are the people to be blamed if they have the sense of rational creatures, and can think of things no otherwise than as they find and feel them? And is it not rather their fault who put things in such a posture that they would not have them thought as they are? I grant that the pride, ambition, and turbulency of private men have sometimes caused great disorders in commonwealths, and factions have been fatal to states and kingdoms. But whether the mischief hath oftener begun in the people′s wantonness, and a desire to cast off the lawful authority of their rulers, or in the rulers′ insolence and endeavours to get and exercise an arbitrary power over their people, whether oppression or disobedience gave the first rise to the disorder, I leave it to impartial history to determine. This I am sure, whoever, either ruler or subject, by force goes about to invade the rights of either prince or people, and lays the foundation for overturning the constitution and frame of any just government, he is guilty of the greatest crime I think a man is capable of, being to answer for all those mischiefs of blood, rapine, and desolation, which the breaking to pieces of governments bring on a country; and he who does it is justly to be esteemed the common enemy and pest of mankind, and is to be treated accordingly.
231. That subjects or foreigners attempting by force on the properties of any people may be resisted with force is agreed on all hands; but that magistrates doing the same thing may be resisted, hath of late been denied; as if those who had the greatest privileges and advantages by the law had thereby a power to break those laws by which alone they were set in a better place than their brethren; whereas their offence is thereby the greater, both as being ungrateful for the greater share they have by the law, and breaking also that trust which is put into their hands by their brethren.
232. Whosoever uses force without right- as every one does in society who does it without law- puts himself into a state of war with those against whom he so uses it, and in that state all former ties are cancelled, all other rights cease, and every one has a right to defend himself, and to resist the aggressor. This is so evident that Barclay himself- that great assertor of the power and sacredness of kings- is forced to confess that it is lawful for the people, in some cases, to resist their king, and that, too, in a chapter wherein he pretends to show that the Divine law shuts up the people from all manner of rebellion. Whereby it is evident, even by his own doctrine, that since they may, in some cases, resist, all resisting of princes is not rebellion. His words are these: “Quod siquis dicat, Ergone populus tyrannicae crudelitati et furori jugulum semper praebebit? Ergone multitudo civitates suas fame, ferro, et flamma vastari, seque, conjuges, et liberos fortunae ludibrio et tyranni libidini exponi, inque omnia vitae pericula omnesque miserias et molestias a rege deduci patientur? Num illis quod omni animantium generi est a natura tributum, denegari debet, ut sc. vim vi repellant, seseque ab injuria tueantur? Huic breviter responsum sit, populo universo negari defensionem, quae juris naturalis est, neque ultionem quae praeter naturam est adversus regem concedi debere. Quapropter si rex non in singulares tantum personas aliquot privatum odium exerceat, sed corpus etiam reipublicae, cujus ipse, caput est- i.e., totum populum, vel insignem aliquam ejus partem immani et intoleranda saevitia seu tyrannide divexet; populo, quidem hoc casu resistendi ac tuendi se ab injuria potestas competit, sed tuendi se tantum, non enim in principem invadendi: et restituendae injuriae illatae, non recedendi a debita reverentia propter acceptum injuriam. Praesentem denique impetum propulsandi non vim praeteritam ulciscendi jus habet. Horum enim alterum a natura est, ut vitani scilicet corpusque tueamur. Alterum vero contra naturam, ut inferior de superiori supplicium sumat. Quod itaque populus malum, antequam factum sit, impedire potest, ne fiat, id postquam factum est, in regem authorem sceleris vindicare non potest, populus igitur hoc amplius quam privatus quispiam habet: Quod huic, vel ipsis adversariis judicibus, excepto Buchanano, nullum nisi in patientia remedium superest. Cum ille si intolerabilis tyrannis est (modicum enim ferre omnino debet) resistere cum reverentia possit.”- Barclay, Contra Monarchomachos, iii. 8.
In English thus:
233. “But if any one should ask: Must the people, then, always lay themselves open to the cruelty and rage of tyranny- must they see their cities pillaged and laid in ashes, their wives and children exposed to the tyrant′s lust and fury, and themselves and families reduced by their king to ruin and all the miseries of want and oppression, and yet sit still- must men alone be debarred the common privilege of opposing force with force, which Nature allows so freely to all other creatures for their preservation from injury? I answer: Self-defence is a part of the law of Nature; nor can it be denied the community, even against the king himself; but to revenge themselves upon him must, by no means, be allowed them, it being not agreeable to that law. Wherefore, if the king shall show an hatred, not only to some particular persons, but sets himself against the body of the commonwealth, whereof he is the head, and shall, with intolerable ill-usage, cruelly tyrannise over the whole, or a considerable part of the people; in this case the people have a right to resist and defend themselves from injury; but it must be with this caution, that they only defend themselves, but do not attack their prince. They may repair the damages received, but must not, for any provocation, exceed the bounds of due reverence and respect. They may repulse the present attempt, but must not revenge past violences. For it is natural for us to defend life and limb, but that an inferior should punish a superior is against nature. The mischief which is designed them the people may prevent before it be done, but, when it is done, they must not revenge it on the king, though author of the villany. This, therefore, is the privilege of the people in general above what any private person hath: That particular men are allowed, by our adversaries themselves (Buchanan only excepted), to have no other remedy but patience; but the body of the people may, with respect, resist intolerable tyranny, for when it is but moderate they ought to endure it.”
234. Thus far that great advocate of monarchical power allows of resistance.
235. It is true, he has annexed two limitations to it, to no purpose:
First. He says it must be with reverence.
Secondly. It must be without retribution or punishment; and the reason he gives is, “because an inferior cannot punish a superior.”
First. How to resist force without striking again, or how to strike with reverence, will need some skill to make intelligible. He that shall oppose an assault only with a shield to receive the blows, or in any more respectful posture, without a sword in his hand to abate the confidence and force of the assailant, will quickly be at an end of his resistance, and will find such a defence serve only to draw on himself the worse usage. This is as ridiculous a way of resisting as Juvenal thought it of fighting: Ubi tu pulsas, ego vapulo tantum. And the success of the combat will be unavoidably the same he there describes it:
Libertas pauperis haec est;
Pulsatus rogat, et pugnis concisus, adorat,
Ut liceat paucis cum dentibus inde reverti.
This will always be the event of such an imaginary resistance, where men may not strike again. He, therefore, who may resist must be allowed to strike. And then let our author, or anybody else, join a knock on the head or a cut on the face with as much reverence and respect as he thinks fit. He that can reconcile blows and reverence may, for aught I know, deserve for his pains a civil, respectful cudgelling wherever he can meet with it.
Secondly. As to his second- “An inferior cannot punish a superior”- that is true, generally speaking, whilst he is his superior. But to resist force with force, being the state of war that levels the parties, cancels all former relation of reverence, respect, and superiority; and then the odds that remains is- that he who opposes the unjust aggressor has this superiority over him, that he has a right, when he prevails, to punish the offender, both for the breach of the peace and all the evils that followed upon it. Barclay, therefore, in another place, more coherently to himself, denies it to be lawful to resist a king in any case. But he there assigns two cases whereby a king may unking himself. His words are:
“Quid ergo, nulline casus incidere possunt quibus populo sese erigere atque in regem impotentius dominantem arma capere et invadere jure suo suaque authoritate liceat? Nulli certe quamdiu rex manet. Semper enim ex divinis id obstat, Regem honorificato, et qui potestati resistit, Dei ordinationi resistit; non alias igitur in eum populo potestas est quam si id committat propter quod ipso jure rex esse desinat. Tunc enim se ipse principatu exuit atque in privatis constituit liber; hoc modo populus et superior efficitur, reverso ad eum scilicet jure illo quod ante regem inauguratum in interregno habuit. At sunt paucorum generum commissa ejusmodi quae hunc effectum pariunt. At ego cum plurima animo perlustrem, duo tantum invenio, duos, inquam, casus quibus rex ipso facto ex rege non regem se facit et omni honore et dignitate regali atque in subditos potestate destituit; quorum etiam meminit Winzerus. Horum unus est, si regnum disperdat, quemadmodum de Nerone fertur, quod is nempe senatum populumque Romanum atque adeo urbem ipsam ferro flammaque vastare, ac novas sibi sedes quaerere decrevisset. Et de Caligula, quod palam denunciarit se neque civem neque principem senatui amplius fore, inque animo habuerit, interempto utriusque ordinis electissimo, quoque Alexandriam commigrare, ac ut populum uno ictu interimeret, unam ei cervicem optavit. Talia cum rex aliquis meditatur et molitur serio, omnem regnandi curam et animum ilico abjicit, ac proinde imperium in subditos amittit, ut dominus servi pro derelicto habiti, dominium.
236. “Arlter casus est, si rex in alicujus clientelam se contulit, ac regnum quod liberum a majoribus et populo traditum accepit, alienae ditioni mancipavit. Nam tunc quamvis forte non ea mente id agit populo plane ut incommodet; tamen quia quod praecipuum est regiae dignitatis amisit, ut summus scilicet in regno secundum Deum sit, et solo Deo inferior, atque populum etiam totum ignorantem vel invitum, cujus libertatem sartam et tectam conservare debuit, in alterius gentis ditionem et potestatem dedidit; hac velut quadam rengi abalienatione effecit, ut nec quod ipse in regno imperium habuit retineat, nec in eum cui collatum voluit, juris quicquam transferat, atque ita eo facto liberum jam et suae potestatis populum relinquit, cujus rei exemplum unum annales Scotici suppeditant.”- Barclay, Contra Monarchomachos, I. iii., c. 16.
Which may be thus Englished:
237. “What, then, can there no case happen wherein the people may of right, and by their own authority, help themselves, take arms, and set upon their king, imperiously domineering over them? None at all whilst he remains a king. ′Honour the king,′ and ′he that resists the power, resists the ordinance of God,′ are Divine oracles that will never permit it. The people, therefore, can never come by a power over him unless he does something that makes him cease to be a king; for then he divests himself of his crown and dignity, and returns to the state of a private man, and the people become free and superior; the power which they had in the interregnum, before they crowned him king, devolving to them again. But there are but few miscarriages which bring the matter to this state. After considering it well on all sides, I can find but two. Two cases there are, I say, whereby a king, ipso facto, becomes no king, and loses all power and regal authority over his people, which are also taken notice of by Winzerus. The first is, if he endeavour to overturn the government- that is, if he have a purpose and design to ruin the kingdom and commonwealth, as it is recorded of Nero that he resolved to cut off the senate and people of Rome, lay the city waste with fire and sword, and then remove to some other place; and of Caligula, that he openly declared that he would be no longer a head to the people or senate, and that he had it in his thoughts to cut off the worthiest men of both ranks, and then retire to Alexandria; and he wished that the people had but one neck that he might dispatch them all at a blow. Such designs as these, when any king harbours in his thoughts, and seriously promotes, he immediately gives up all care and thought of the commonwealth, and, consequently, forfeits the power of governing his subjects, as a master does the dominion over his slaves whom he hath abandoned.
238. “The other case is, when a king makes himself the dependent of another, and subjects his kingdom, which his ancestors left him, and the people put free into his hands, to the dominion of another. For however, perhaps, it may not be his intention to prejudice the people, yet because he has hereby lost the principal part of regal dignity- viz., to be next and immediately under God, supreme in his kingdom; and also because he betrayed or forced his people, whose liberty he ought to have carefully preserved, into the power and dominion of a foreign nation. By this, as it were, alienation of his kingdom, he himself loses the power he had in it before, without transferring any the least right to those on whom he would have bestowed it; and so by this act sets the people free, and leaves them at their own disposal. One example of this is to be found in the Scotch annals.”
239. In these cases Barclay, the great champion of absolute monarchy, is forced to allow that a king may be resisted, and ceases to be a king. That is in short- not to multiply cases- in whatsoever he has no authority, there he is no king, and may be resisted: for wheresoever the authority ceases, the king ceases too, and becomes like other men who have no authority. And these two cases that he instances differ little from those above mentioned, to be destructive to governments, only that he has omitted the principle from which his doctrine flows, and that is the breach of trust in not preserving the form of government agreed on, and in not intending the end of government itself, which is the public good and preservation of property. When a king has dethroned himself, and put himself in a state of war with his people, what shall hinder them from prosecuting him who is no king, as they would any other man, who has put himself into a state of war with them, Barclay, and those of his opinion, would do well to tell us. Bilson, a bishop of our Church, and a great stickler for the power and prerogative of princes, does, if I mistake not, in his treatise of “Christian Subjection,” acknowledge that princes may forfeit their power and their title to the obedience of their subjects; and if there needed authority in a case where reason is so plain, I could send my reader to Bracton, Fortescue, and the author of the “Mirror,” and others, writers that cannot be suspected to be ignorant of our government, or enemies to it. But I thought Hooker alone might be enough to satisfy those men who, relying on him for their ecclesiastical polity, are by a strange fate carried to deny those principles upon which he builds it. Whether they are herein made the tools of cunninger workmen, to pull down their own fabric, they were best look. This I am sure, their civil policy is so new, so dangerous, and so destructive to both rulers and people, that as former ages never could bear the broaching of it, so it may be hoped those to come, redeemed from the impositions of these Egyptian under-taskmasters, will abhor the memory of such servile flatterers, who, whilst it seemed to serve their turn, resolved all government into absolute tyranny, and would have all men born to what their mean souls fitted them- slavery.
240. Here it is like the common question will be made: Who shall be judge whether the prince or legislative act contrary to their trust? This, perhaps, ill-affected and factious men may spread amongst the people, when the prince only makes use of his due prerogative. To this I reply, The people shall be judge; for who shall be judge whether his trustee or deputy acts well and according to the trust reposed in him, but he who deputes him and must, by having deputed him, have still a power to discard him when he fails in his trust? If this be reasonable in particular cases of private men, why should it be otherwise in that of the greatest moment, where the welfare of millions is concerned and also where the evil, if not prevented, is greater, and the redress very difficult, dear, and dangerous?
241. But, farther, this question, Who shall be judge? cannot mean that there is no judge at all. For where there is no judicature on earth to decide controversies amongst men, God in heaven is judge. He alone, it is true, is judge of the right. But every man is judge for himself, as in all other cases so in this, whether another hath put himself into a state of war with him, and whether he should appeal to the supreme judge, as Jephtha did.
242. If a controversy arise betwixt a prince and some of the people in a matter where the law is silent or doubtful, and the thing be of great consequence, I should think the proper umpire in such a case should be the body of the people. For in such cases where the prince hath a trust reposed in him, and is dispensed from the common, ordinary rules of the law, there, if any men find themselves aggrieved, and think the prince acts contrary to, or beyond that trust, who so proper to judge as the body of the people (who at first lodged that trust in him) how far they meant it should extend? But if the prince, or whoever they be in the administration, decline that way of determination, the appeal then lies nowhere but to Heaven. Force between either persons who have no known superior on earth or, which permits no appeal to a judge on earth, being properly a state of war, wherein the appeal lies only to heaven; and in that state the injured party must judge for himself when he will think fit to make use of that appeal and put himself upon it.
243. To conclude. The power that every individual gave the society when he entered into it can never revert to the individuals again, as long as the society lasts, but will always remain in the community; because without this there can be no community- no commonwealth, which is contrary to the original agreement; so also when the society hath placed the legislative in any assembly of men, to continue in them and their successors, with direction and authority for providing such successors, the legislative can never revert to the people whilst that government lasts: because, having provided a legislative with power to continue for ever, they have given up their political power to the legislative, and cannot resume it. But if they have set limits to the duration of their legislative, and made this supreme power in any person or assembly only temporary; or else when, by the miscarriages of those in authority, it is forfeited; upon the forfeiture of their rulers, or at the determination of the time set, it reverts to the society, and the people have a right to act as supreme, and continue the legislative in themselves or place it in a new form, or new hands, as they think good.
- [* An Essay Concerning Certain False Principles. ]
- [*Richard Hooker, The Laws of Ecclesiastical Polity. ]
- “It is no improbable opinion, therefore, which the arch- philosopher was of, That the chief person in every household was always, as it were, a king; so when numbers of households joined themselves in civil societies together, kings were the first kind of governors among them, which is also, as it seemeth, the reason why the name of fathers continued still in them, who of fathers were made rulers; as also the ancient custom of governors to do as Melchizedec; and being kings, to exercise the office of priests, which fathers did, at the first, grew, perhaps, by the same occasion. Howbeit, this is not the only kind of regimen that has been received in the world. The inconveniencies of one kind have caused sundry others to be devised, so that, in a word, all public regimen, of what kind soever, seemeth evidently to have risen from the deliberate advice, consultation and composition between men, judging it convenient and behoveful, there being no impossibility in Nature, considered by itself, but that man might have lived without any public regimen.” Hooker, Eccl. Pol., i. 10.]
- “The public power of all society is above every soul contained in the same society, and the principal use of that power is to give laws unto all that are under it, which laws in such cases we must obey, unless there be reason showed which may necessarily enforce that the law of reason or of God doth enjoin the contrary.” Hooker, Eccl. Pol., i. 16.]
- “To take away all such mutual grievances, injuries, and wrongs- i.e., such as attend men in the state of Nature, there was no way but only by growing into composition and agreement amongst themselves by ordaining some kind of government public, and by yielding themselves subject thereunto, that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy estate of the rest might be procured. Men always knew that where force and injury was offered, they might be defenders of themselves. They knew that, however men may seek their own commodity, yet if this were done with injury unto others, it was not to be suffered, but by all men and all good means to be withstood. Finally, they knew that no man might, in reason, take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, in as much as every man is towards himself, and them whom he greatly affects, partial; and therefore, that strifes and troubles would be endless, except they gave their common consent, all to be ordered by some whom they should agree upon, without which consent there would be no reason that one man should take upon him to be lord or judge over another.” Hooker, ibid. 10.]
- “At the first, when some certain kind of regimen was once appointed, it may be that nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion which were to rule till, by experience, they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man′s will became the cause of all men′s misery. This constrained them to come unto laws wherein all men might see their duty beforehand, and know the penalties of transgressing them.” Hooker, Eccl. Pol. i. 10.]
- “Civil law, being the act of the whole body politic, doth therefore overrule each several part of the same body.” Hooker, ibid.]
- “At the first, when some certain kind of regimen was once approved, it may be that nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion, which were to rule till, by experience, they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man′s will became the cause of all men′s misery. This constrained them to come unto laws wherein all men might see their duty beforehand, and know the penalties of transgressing them.” Hooker, Eccl. Pol. 1. 10.]
- “The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same entire societies, that for any prince or potentate, of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not, therefore, which public approbation hath not made so.” Hooker, ibid. 10. “Of this point, therefore, we are to note that such men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent we could in such sort be at no man′s commandment living. And to be commanded, we do consent when that society, whereof we be a part, hath at any time before consented, without revoking the same after by the like universal agreement. “Laws therefore human, of what kind soever, are available by consent.” Hooker, Ibid.]
- “Two foundations there are which bear up public societies; the one a natural inclination whereby all men desire sociable life and fellowship; the other an order, expressly or secretly agreed upon, touching the manner of their union in living together. The latter is that which we call the law of a commonweal, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good requireth. Laws politic, ordained for external order and regimen amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they do accordingly provide notwithstanding, so to frame his outward actions, that they be no hindrance unto the common good, for which societies are instituted. Unless they do this they are not perfect.” Hooker, Eccl. Pol. i. 10.]
- “Human laws are measures in respect of men whose actions they must direct, howbeit such measures they are as have also their higher rules to be measured by, which rules are two- the law of God and the law of Nature; so that laws human must be made according to the general laws of Nature, and without contradiction to any positive law of Scripture, otherwise they are ill made.” Hooker, Eccl. Pol. iii. 9. “To constrain men to anything inconvenient doth seem unreasonable.” Ibid. i. 10.]