Sect. 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 any body else, in what form soever conceived, or by what power soever backed, have the force and obligation of a law, which has not its sanction from that legislative which the 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 no body 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.
134. The great end of people's entering into society is the enjoyment of their property in peace and safety. The main instrument for that is the laws established in that society. The first and fundamental positive law of every commonwealth is to establish the legislative power. The first and fundamental natural law, which must even govern the legislature, is the preservation of the society. It also requires, as far as is consistent with the public good, the preservation of every person in it. This legislative power is not only the supreme power of the commonwealth. It is sacred and unalterable in the hands in which the community has once placed it. No edict from any other body can have the force or obligation of law. This is true whatever form it takes or whatever power backs it. It must be sanctioned by the legislature the public has chosen. Without this, a law would lack what is absolutely necessary for it to be a law.* That necessary element is the consent of society. No one can make laws over a people without their consent. Lawmakers must receive their authority from the people. Therefore all the obedience that anyone can be solemnly bound to give ultimately ends with this supreme power. Such obedience is directed by the laws that the legislature enacts. No oath to a foreign power can release a member of society from obedience to the legislature acting under its trust. The same applies to oaths to any domestic subordinate authority. No such oath can require obedience contrary to the laws or beyond what the laws allow. It is absurd to think anyone is ultimately bound to obey a power that is not supreme.
(*The lawful power of making laws to command whole politic societies of men, belonging so properly unto the same intire societies, that for any prince or potentate of what kind soever upon earth, to exercise the same of himself, and not by express commission immediately and personally received from God, or else by authority derived at the first from their consent, upon whose persons they impose laws, it is no better than mere tyranny. Laws they are not therefore which public approbation hath not made so. Hooker’s Eccl. Pol. l. i. sect. 10.
(*The lawful power to make laws and command entire political societies belongs properly to those same societies. Any prince or ruler who tries to use that power on his own is no better than a tyrant. He must have an express commission received personally and immediately from God. Or he must have authority originally derived from the consent of the people he governs. These are not laws unless public approval has made them so. Hooker’s Eccl. Pol. l. i. 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 so ever, are available by consent. Ibid.)
Of this point, therefore, we are to note that such men naturally have no full and perfect power to command whole political multitudes of men. Therefore, utterly without our consent, we could not in that way be under the command of any man living. And we do consent to be commanded when the society we are part of has at any time before consented, without later revoking that consent by a similarly universal agreement. Human laws of whatever kind, therefore, are valid by consent. Ibid.)
Sect. 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:
135. Although the legislature is the supreme power in every commonwealth, this is true whether it is vested in one person or in several. It is also true whether the legislature exists continuously or only at intervals. Yet:
First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the 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 inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men’s actions, must, as well as their own and other men’s actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.
First, it is not, and cannot be, absolutely arbitrary over the lives and fortunes of the people. This is because it is only the combined power that each member of society has given to the person or assembly called the legislator. It can be no more than the power those persons had in the state of nature before they entered society and gave it to the community. No one can give to another more power than he himself has. No one has an absolute, arbitrary power over himself or over another to destroy his own life or to take away the life or property of another. As has been proved, a person cannot subject himself to another’s arbitrary power. In the state of nature a person has no arbitrary power over another’s life, liberty, or possessions. He has only so much as the law of nature gives him to preserve himself and the rest of mankind. That is all he does, and can, give up to the commonwealth, and by it to the legislative power. Therefore the legislature can have no more than this. Their power, at its outer limits, is limited to the public good of society. Its only purpose is preservation. Therefore it can never have the right to destroy, enslave, or intentionally impoverish the subjects.* The obligations of the law of nature do not end in society. In many cases they are made more specific, and human laws attach known penalties to enforce them. Thus the law of nature remains an eternal rule for everyone, legislators as well as others. The rules they make for other people’s actions must conform to the law of nature. This applies to their own actions and to everyone else’s. The law of nature is a declaration of the will of God. Its fundamental rule is the preservation of mankind. No human sanction can be good or valid if it goes against this rule.
(*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, expresly or secretly agreed upon, touching the manner of their union in living together: the latter is that which we call the law of a common-weal, the very soul of a 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 regiment amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience to the sacred laws of his nature; in a word, unless presuming man to be, in regard of his depraved mind, little better than a wild beast, they do accordingly provide, notwithstanding, so to frame his outward actions, that they be no hindrance unto the common good, for which societies are instituted. Unless they do this, they are not perfect. Hooker’s Eccl. Pol. l. i. sect. 10.)
(*There are two foundations that support public societies. The first is a natural inclination. All people want social life and fellowship. The second is an order, agreed upon either openly or secretly, about how they will live together. This second is what we call the law of the commonwealth. It is the very soul of a political body. Its parts are given life, held together, and put to work by law. They act in ways the common good requires. Civil laws are made to provide outward order and discipline among people. They are not well formed unless they assume the human will is inwardly stubborn and rebellious. They must also assume people are averse to obeying the sacred laws of nature. In short, they must assume that, because of a corrupt mind, humans are little better than wild beasts. Even so, these laws arrange outward behavior so it does not harm the common good for which societies exist. If they fail to do this, they are imperfect. Hooker’s Eccl. Pol. l. i. 10.)
Sect. 136. Secondly, The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges:* for the law of nature being unwritten, and so no where to be found but in the minds of men, they who through passion or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake where there is no established judge: and so it serves not, as it ought, to determine the rights, and fence the properties of those that live under it, especially where every one is judge, interpreter, and executioner of it too, and that in his own case: and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries, or to punish delinquents. To avoid these inconveniences, which disorder men’s propperties in the state of nature, men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty, as it was in the state of nature.
136. Secondly, the legislative, or supreme authority, cannot take to itself a power to rule by improvised, arbitrary decrees. It is bound to dispense justice and decide the rights of the subject by published standing laws and known, authorized judges.* For the law of nature is unwritten, and so is found nowhere but in men's minds. So those who misquote or misapply it, through passion or interest, cannot so easily be convinced of their mistake where there is no established judge. And so it does not serve, as it ought, to determine the rights and fence the properties of those who live under it. This is especially so where everyone is its judge, interpreter, and executioner too, and that in his own case. And he who has right on his side usually has only his own single strength. That is not force enough to defend himself from injuries or to punish offenders. To avoid these inconveniences, which disorder men's properties in the state of nature, men unite into societies. They do this so that they may have the united strength of the whole society to secure and defend their properties. They also want standing rules to set its bounds, by which everyone may know what is his. It is to this end that men give up all their natural power to the society they enter. And the community puts the legislative power into such hands as they think fit. They do so with this trust: that they shall be governed by declared laws. Otherwise their peace, quiet, and property will still be as uncertain as they were in the state of nature.
(*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’s Eccl. Pol. l. iii. sect. 9.
(*Human laws are measures set for people to guide their actions. But these measures must themselves follow higher rules. There are two such rules: the law of God and the law of nature. Therefore human laws must follow the general laws of nature. They must not contradict any positive law of scripture. Otherwise they are badly made. Hooker’s Eccl. Pol. l. iii. 9.)
To constrain men to any thing inconvenient doth seem unreasonable. Ibid. l. i. sect. 10.)
To force people to do anything inconvenient seems unreasonable. Ibid. l. i. 10.)
Sect. 137. Absolute arbitrary power, or governing without settled standing laws, can neither of them consist with the ends of society and government, which men would not quit the freedom of the state of nature for, and tie themselves up under, were it not to preserve their lives, liberties and fortunes, and by stated rules of right and property to secure their peace and quiet. It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination. Whereas by supposing they have given up themselves to the absolute arbitrary power and will of a legislator, they have disarmed themselves, and armed him, to make a prey of them when he pleases; he being in a much worse condition, who is exposed to the arbitrary power of one man, who has the command of 100,000, than he that is exposed to the arbitrary power of 100,000 single men; no body being secure, that his will, who has such a command, is better than that of other men, though his force be 100,000 times stronger. And therefore, whatever form the 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 bounds, and not be tempted, by the power they have in their hands, to employ it to such purposes, and by such measures, as they would not have known, and own not willingly.
137. Absolute arbitrary power, and governing without settled standing laws, are neither of them consistent with the ends of society and government. Men would not give up the freedom of the state of nature and bind themselves under government, except to preserve their lives, liberties, and fortunes. They do it to secure their peace and quiet by stated rules of right and property. It cannot be supposed that they would intend, even if they had the power to do so, to give anyone, one or more, an absolute arbitrary power over their persons and estates. Nor would they put force into the magistrate's hand to carry out his unlimited will arbitrarily on them. This would be to put themselves into a worse condition than the state of nature. There they had a liberty to defend their right against the injuries of others. And they were on equal terms of force to maintain it, whether invaded by a single man or by many in combination. But if we suppose they have given themselves up to the absolute arbitrary power and will of a legislator, they have disarmed themselves and armed him, to make a prey of them whenever he pleases. A man exposed to the arbitrary power of one man who commands 100,000 is in a much worse condition than one exposed to the arbitrary power of 100,000 single men. For nobody can be sure that the will of the man with such a command is better than that of other men, though his force is 100,000 times stronger. Therefore, whatever form the commonwealth takes, the ruling power ought to govern by declared and accepted laws. It ought not to govern by improvised dictates and unsettled resolutions. Otherwise mankind will be in a far worse condition than in the state of nature. They will have armed one man, or a few, with the joint power of a multitude. These rulers could then force them to obey, at pleasure, the excessive and unlimited decrees of their sudden thoughts, or their unrestrained wills, unknown until that moment. And there would be no measures set down to guide and justify their actions. For all the power the government has is only for the good of the society. So, as it ought not to be arbitrary and at pleasure, it ought to be exercised by established and published laws. That way the people may know their duty and be safe and secure within the limits of the law. And the rulers too are kept within their bounds. They are not tempted, by the power in their hands, to use it for such purposes and by such measures as they would not want known, and would not willingly own.
Sect. 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 their’s, that no body hath a right to take their substance or any part of it from them, without their own consent: without this they have no property at all; for I have truly no property in that, which another can by right take from me, when he pleases, against my consent. Hence it is a mistake to think, that the supreme or legislative power of any commonwealth, can do what it will, and dispose of the estates of the subject arbitrarily, or take any part of them at pleasure. This is not much to be feared in governments where the legislative consists, wholly or in part, in assemblies which are variable, whose members, upon the dissolution of the assembly, are subjects under the common laws of their country, equally with the rest. But in governments, where the legislative is in one lasting assembly always in being, or in one man, as in absolute monarchies, there is danger still, that they will think themselves to have a distinct interest from the rest of the community; and so will be apt to increase their own riches and power, by taking what they think fit from the people: for a man’s property is not at all secure, tho’ there be good and equitable laws to set the bounds of it between him and his fellow subjects, if he who commands those subjects have power to take from any private man, what part he pleases of his property, and use and dispose of it as he thinks good.
138. Thirdly, the supreme power cannot take any part of a person’s property without that person’s consent. The preservation of property is the purpose of government. It is the reason people enter society. That necessarily means people must keep their property when they join society. If they lost it by joining, they would lose the very thing they entered society to preserve. That is an obvious absurdity. Therefore, people in society have property. They have a right to the goods that the community’s laws recognize as theirs. No one has a right to take their possessions or any part of them without their consent. Without this protection, they have no real property. I do not truly own something that another may lawfully take from me whenever he wishes, against my consent. It is a mistake to think the supreme or legislative power of any commonwealth can do as it pleases and dispose of subjects’ estates arbitrarily. This is less likely in governments where the legislature is partly or entirely made up of changing assemblies. When such assemblies dissolve, their members return to being ordinary subjects under the common laws, like everyone else. But in governments where the legislature is a single permanent assembly always in session, or where it rests in one person as in absolute monarchies, there is a real danger. Those who govern may see themselves as having interests separate from the rest of the community. They may then be inclined to increase their own wealth and power by taking whatever they think fit from the people. A person’s property is not secure, even if there are good and fair laws defining it among subjects, if the ruler can take any part of a private man’s property and use or dispose of it as he pleases.
Sect. 139. But government, into whatsoever hands it is put, being, as I have before shewed, intrusted with this condition, and for this end, that men might have and secure their properties; the prince, or senate, however it may have power to make laws, for the regulating of property between the subjects one amongst another, yet can never have a power to take to themselves the whole, or any part of the subjects property, without their own consent: for this would be in effect to leave them no property at all. And to let us see, that even absolute power, where it is necessary, is not arbitrary by being absolute, but is still limited by that reason, and confined to those ends, which required it in some cases to be absolute, we need look no farther than the common practice of martial discipline: for the preservation of the army, and in it of the whole 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 serjeant, that could command a soldier to march up to the mouth of a cannon, or stand in a breach, where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general, that can condemn him to death for deserting his post, or for not obeying the most desperate orders, can yet, with all his absolute power of life and death, dispose of one farthing of that soldier’s estate, or seize one jot of his goods; whom yet he can command any thing, and hang for the least disobedience; because such a blind obedience is necessary to that end, for which the commander has his power, viz. the preservation of the rest; but the disposing of his goods has nothing to do with it.
139. But government, into whatever hands it is put, is entrusted on this condition and for this end, as I have shown before: that men might have and secure their properties. So the prince or senate may have power to make laws regulating property among the subjects. Yet it can never have a power to take to itself the whole or any part of the subjects' property without their own consent. For this would in effect leave them no property at all. Even absolute power, where it is necessary, is not arbitrary just because it is absolute. It is still limited by the reason, and confined to the ends, that required it to be absolute in some cases. To see this, we need look no further than the common practice of military discipline. The preservation of the army, and in it of the whole commonwealth, requires absolute obedience to the command of every superior officer. It is justly death to disobey or dispute even the most dangerous or unreasonable of those commands. Yet we see that a sergeant could command a soldier to march up to the mouth of a cannon, or stand in a breach where he is almost sure to die. But he cannot command that soldier to give him one penny of his money. A general can condemn him to death for deserting his post, or for not obeying the most desperate orders. Yet with all his absolute power of life and death, he cannot dispose of one farthing of that soldier's estate, or seize one jot of his goods. And this is a man he can command to do anything, and hang for the least disobedience. The reason is that such blind obedience is necessary to the end for which the commander has his power, namely the preservation of the rest. But disposing of the soldier's goods has nothing to do with that end.
Sect. 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?
140. It is true that governments cannot be supported without great expense. And it is fit that everyone who enjoys his share of the protection should pay his proportion out of his estate to maintain it. But still it must be with his own consent, that is, the consent of the majority, given either by themselves or by representatives they have chosen. For if anyone claims a power to lay and levy taxes on the people by his own authority, 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 something that another may by right take to himself whenever he pleases?
Sect. 141. Fourthly, The legislative cannot transfer the power of making laws to any other hands: for it being but a delegated power from the people, they who have it cannot pass it over to others. The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.
141. Fourth, the legislature cannot transfer the power to make laws to anyone else. That lawmaking power is only delegated by the people. Those who hold it cannot hand it over to others. Only the people can choose the form of the commonwealth. They do this by creating the legislature and deciding who will hold it. When the people say, "We will submit to rules, and be governed by laws made by such men, and in such forms," they exclude anyone else from appointing lawmakers for them. The people cannot be bound by any laws except those enacted by the persons they have chosen and authorized to make laws for them. Legislative power comes from the people through an explicit voluntary grant and establishment. It can only be what that grant conveyed. The grant gave only the power to make laws, not the power to make legislators. Therefore the legislature has no authority to transfer its lawmaking power and place it in other hands.
Sect. 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.
142. These are the limits set for the legislative power of every commonwealth. They come from the trust society places in rulers and from the law of God and nature. They apply in every form of government.
First, They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.
First, rulers should govern by published, established laws. They should not change those laws for particular cases. The same rules must apply to the rich and the poor. They must also apply to the favorite at court and the countryman at the plough.
Secondly, These laws also ought to be designed for no other end ultimately, but the good of the people.
Second, these laws should have no other ultimate purpose than 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.
Thirdly, they must not raise taxes on the property of the people without the consent of the people. That consent must be given by the people themselves or by their deputies. This rule properly applies only to governments where the legislature is always in being. It also applies where the people have not reserved any part of the legislative power to deputies to be chosen by them from time to time.
Fourthly, The legislative neither must nor can transfer the power of making laws to any body else, or place it any where, but where the people have.
Fourthly. The legislature must not transfer the power to make laws to any other body. It also cannot place that power anywhere except where the people have placed it.