Locke on Civil Government
[Reference: The second treatise of John Locke's (1632-1704) "Two Treatises on Government," entitled "An Essay Concerning The True Original, Extent and End of Civil Government" which appeared in 1690 - See John Locke, "Treatise of Civil Government and A Letter Concerning Toleration," Irvington Publishers. Inc. c1979]
Locke proceeds from the assumption of a "state of nature" prior to the formation of political society in which all men are free and equal with the individul sovereign power to defend their lives and property from injury, harm or seizure by another:
"To understand political power aright, and derive it from its original, we must consider what state all men are naturally in, and that is a state of perfect freedom to order their actions and dispose of their possessions and persons as they see fit. Within the bounds of the law of nature, without asking leave or depending upon the will of any other man." (at 4.)
"...The state of nature has a law of nature to govern it, which obliges everyone; 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...." (at 6.)
"Man...hath by nature 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 and punish the breaches of that law by others as he is persuaded the offense deserves..." (at 87.)
"And thus in the state of nature one man comes by a power over another; but yet no absolute or arbitrary power;...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..." (at 8.)
The strain of individual defense induces men to voluntarily leave the state of nature and mutually compact with others to incorporate into a civil society or "body politic." As such, it precedes government.
"...For 'tis not every compact that puts an end to the state of nature between men, but only this one of agreeing together mutually to enter into one community, and make one body politic..." (at 14.)
"...I moreover affirm that all men are naturally in that state, [of nature] and remain so, till by their own consents they make themselves members of some politic society..."(at 15.)
"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..." (at 96.)
The individual's motivation in compacting with others to form a civil society is to better protect the safety and security of his own person, liberty and property.
"...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...The great chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property..." (at 121.)
"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 legislature as the good of society should require; yet it being only with an intention in everyone 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 everyone's property ..." (at 131.)
"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 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..." (at 134.)
The power superior to the individual does not exist in nature, but is voluntarily and artificially created by compact in the formation of civil society, sovereign in its executive powers to the individual. Under this compact, the individual consents to join with others in authorizing the body politic to execute superior power or force over the individual for the society's common defense. Each person retains original title to all his rights by nature - the rights of the individual person in no way derive from the state. Under such a compact, men do not surrender their natural rights, only that portion of natural individual sovereign executive authority which is incompatible to the need for common defense and the civil system of sanction against invasion of natural rights.
"...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..." (at 87.)
"Wherever, therefore, any number of men so unite into one society, as to quit everyone 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..." (at 89.)
"Men being, as has been said, by nature free, equal, and independent, no one can be put out of this estate, and subject 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 other... 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." (at 95.) (NOTE: "conclude" has the same meaning as the modern "include.")
"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 that 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..." (at 97.)
"Whosoever therefore out of a state of nature united into a community must be understood to give up all the power necessary to the ends for which they unite into a society, to the majority of the community..." (at 99.)
Locke describes the "federative power" of the body politic as the amalgamation of community into one entity or body in its relationship to all other persons and bodies of government external to the community.
"...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 society, yet in reference to the rest of mankind they make one body...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..." (at 145.)
"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..." (at 146.)
"These two powers, executive and federative, though they may 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 the interest of the public without..." (at 147.)
Establishment of "government" is the creation of a legislative power by which to determine laws defining just relationships among community members, so that they may enjoy their lives, liberties and property in peace, quiet and security.
"First, It is not nor can possibly be absolutely arbitrary over the lives and fortunes of 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 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..." (at 135.)
"Secondly....To avoid these inconveniences, which disorder men's properties in the state of nature, men unite into society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his..." (at 136.)
"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...(at 137)
"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 the government, and that for which men enter into society, it necessarily supposes and requires that the people should have property...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..." (at 138.)
"But government into whosoever 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 it can never have a power to take to themselves the whole or any part of the subject's property without their own consent. For this would be in effect to leave them no property at all..." (at 139.)
"Tis true government cannot be supported without great charge, and it is fit every one who enjoys a 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...(at 140.)
"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...And when the people have said we will submit to rules, 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 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. (at 141.)
"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 (at 143) ... 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." (at 144.)
"...For the essence and union of the society consisting in and having one will, the legislative, when once established by the majority, has the declaring and, as it where, keeping of, that will. The constitution of the legislative is the first and fundamental act of the society, whereby provision is made for the constitution of their union, under the direction of persons and bonds of laws made by persons authorized 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 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 form it, and others usurp the place who have no such authority or delegation..." (at 212.)
"...The legislative acts against the trust reposed in them when they endeavor 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." (at 221.)
According to Locke, "sovereignty" perpetually resides with the body of the people who originally called the state and the government into being. They are the judges of the state and the government and may resist it and even overthrow it by revolutionary means when it seems to violate its original character and purpose.
"[A]nd thus the community perpetually retains a supreme power of saving themselves from the attempts and designs of any body, 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 unalienable 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..." (at 149.)
"...those who were forced to submit to the yoke of government by constraint, have always a right to shake it off, and free themselves from the usurpation or tyranny which 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 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 freemen, but are direct slaves under the force of war." (at 192.)
"The reason why men enter into society is the preservation of their property; and the end why 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 members of the society to limit the power and moderate the dominion of every member of the society. For since it can never be supposed that it is the will of the society that the legislative should have the power to destroy that which every one designs secure by entering into society, and for which the people submitted themselves to legislators of their own making, whenever the legislators endeavor 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 further 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, endeavor 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 establishement of the new legislative (such s they shall think fit) provide for their own safety and security, which is the end for which they are in society." (at 222.)
"...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 probablest 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..." (at 226.)
"In both the fore-mentioned 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 anyone 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 unpirage which everyone 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 authorized, actually introduce a state of war which is that of force without authority...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 in 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.)" (at 227.)
In summary, Locke states:
"...Political power is that power which every man having in a 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 of measure when in the hands of the magistrates 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." (at 171.)
"Nature gives the first of these, namely, paternal power to parents...Voluntary agreement gives the second, namely, 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 (at 173)...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. (at 174.)